Commonly Asked Questions and Answers.
This is NOT a substitute for attorney consultation and should not be considered legal advice.
Q: What is a 3-Day Notice to Pay Rent or Quit?
A: This notice notifies the tenant of the exact amount of rent that is past due at the time of service, and allows the tenant 3-day to pay the full rent or to vacate before you start the eviction court case. If the tenant chooses to vacate the property within the three days, the owner can still file a small claims complaint against the tenant for the unpaid rent.
Q: What is a 3-Day Notice to Cure or Quit (aka Perform Covenant or Quit)?
A: This notice gives a tenant who is on a written rental agreement notice that they have breached their contract in some manner and that breach needs to be cured within 3 days or the tenant must vacate. This notice can be used to ask for late fees, for a non-paid security deposit, removal of an unauthorized pet, or a utility payment which is due as long as there is a clause in the written agreement which can be sited. This notice can also be used. The notice must also inform the tenant of how to cure the breach (i.e. remove the pet, pay the utility bill, etc.). If the tenant does not comply with the notice within 3 days, legal action may be taken.
Q: What is a 30-Day Notice to Terminate Tenancy?
A This notice is used to give a month to month tenant, notice that the owner wishes to regain possession of the property after the 30 days have expired. See below for when you may use a 30-day notice.
Q: I want to serve my residents with a thirty-day notice to vacate. Do I have to tell them why I want them to move ?
A: If your residences are on a month-to-month tenancy, AND they have lived at the property for less then one year. The answer is NO, in fact in this case its a good idea not to tell your residents the reason. They will just be more likely to argue with you and contest the eviction. If they keep pressing, it is best to explain to them that under California law you are not required to give them a reason. Just as they are not required to give you a reason if they want to move.
Q: My tenants are in the third month of a six-month lease. They are causing all kinds of problems with other residents. Can I give them a thirty-day notice to vacate?
A No. If your tenants are on a lease, you cannot serve them with a thirty-day notice to quit. Instead, you may want to consider serving them with a three-day notice to cure breach or quit if they are violating a provision of the lease (i.e., disturbing other tenants by playing their stereo too loud or keeping a dog when the lease prohibits pets, or having unauthorized occupants, etc). Incidentally, not being able to use a thirty-day notice to vacate is one of the big disadvantages of the lease (instead of a month-to-month rental agreement). It’s much easier to evict a tenant with a thirty-day notice to quit than a three-day notice to cure breach or quit.
Q Can I serve my residents with a thirty-day notice to vacate and a three day notice to pay rent or quit at the same time?
A There is nothing to prevent you from doing this but we do not think it’s a good idea, and here’s why. If your resident pays the amount demanded in the three day notice, they could argue that by accepting the rent, you have waived your right to evict them based on the thirty day notice. They could also argue they were confused and believed that if they paid the rent they would be permitted to stay. To solve this potential problem, we suggest that you first serve a three-day notice to pay rent or quit (assuming the rent is unpaid). If your residents do not pay their rent within the three-day period, you proceed on the three day notice. If they do pay, you serve the thirty-day notice (if applicable) and proceed on it (when the thirty days have expired). You are entitled to receive the rent even though you have served them with a thirty-day notice. Just be sure you do not accept rent for any period beyond the expiration date of the thirty-day notice.
Q If otherwise I could, are there any situations in which I would not want to serve my residents with a thirty day notice to quit?
A Yes. You want to be very careful about using a thirty day notice if your resident (a) had recently complained to the building inspector about defects in the premises; (b) had recently requested you make repairs in the premises; or (c) had recently made repairs on the premises and deducted the cost of those repairs from the monthly rent payment. There are other situations as well. If you served your resident with a thirty-day notice to quit under these circumstances, your resident would likely claim a retaliatory eviction. If your resident prevailed, you could be liable for damages. Thirty day notices in these situations need to be modified – spelling out the “non-retaliatory” good faith reasons why you want possession
Q: What if my tenant has been in the property for over a year? Can I serve a thirty-day notice to vacate?
A No. In California, if a tenant has been in the premises for a year or more, they must be given a 60 day notice of the intent to terminate the tenancy. In San Diego, if a tenant has been in the premises for more than two years, they must be given a 60 days notice of the intent to terminate the tenancy PLUS “just cause” for the termination, unless certain exceptions apply.
Q If my tenant has been in the property for more than two years, what are the grounds for “just cause” to evict?
A: San Diego Municipal Code §98.0730: Termination of Tenancy: A residential tenancy of more than two years duration shall not be terminated, nor shall its renewal be refused, except for one or more of the following reasons:
(a) Nonpayment of Rent.
(b) Violation of Obligation of Tenancy. The tenant has violated a lawful and material obligation or covenant of the tenancy, except that the following may not be grounds for termination or nonrenewal of a tenancy: (1) The failure to surrender possession of the rental-unit upon the
expiration of a specified term, except as provided insection 98.0730(e);
(c) Nuisance. The tenant is committing a nuisance or permitting a nuisance in, or is causing damage to, the rental-unit or to the appurtenances thereof or to the common areas of the housing complex containing the rental-unit, or is creating an unreasonable interference with the comfort, safety, or enjoyment of any of the other residents of the housing complex.
(d) Illegal Use. The tenant is using or permitting the rental-unit to be used for an illegal purpose.
(e) Refusal to Renew Lease. The tenant who had a written lease or rental agreement which terminated on or after April 26, 2004 has refused, after written request by the landlord, to execute a written extension or renewal thereof within the written period prescribed by the lease or state law for a further term of like duration with similar provisions.
(f) Refusal to Provide Access. The tenant has refused to give the landlord reasonable access to the rental-unit for the purpose of making repairs or improvements, or for the purpose of inspection as permitted or required by the lease or by law, or for the purpose of showing the rental-unit to any prospective purchaser or mortgagee.
(g) Correction of Violations. The landlord, after having obtained all necessary permits from the City of San Diego, seeks to recover possession of the rental unit for necessary repair or construction when removal of the tenant is reasonably necessary to accomplish the repair or construction work.
(h) Withdrawal of Residential Rental Structure from the Rental Market. The landlord intends to withdraw all rental-units in all buildings or structures on a parcel of land from the rental market.
(i) Owner or Relative Occupancy. The landlord, or his or her spouse, parent, grandparent, brother, sister, child, grandchild (by blood or adoption), or a resident manager plans to occupy the rental unit as their principal residence.
Q What is a 90-Day Notice to Terminate Tenancy?
A: California Civil Code section 1954.535 requires an owner to provide a 90 day notice to a tenant of a termination or failure to renew a government contract. This statue is applicable to Section 8 tenant-based contracts for units in rent control and non-rent control jurisdictions. During the 90 day period, the tenant’s portion of the rent cannot be increased.
Q If I recently bought a property and want to evict the tenants left in there by the prior owner can I serve them a 30-Day Notice to Terminate Tenancy?
AIt depends. Yes, if the tenant has lived there less than 12 months. No, if the tenant has lived there more than 12 months. If the tenant has lived in the property for more than 12 months, a 60 Day Notice to Terminate Tenancy must be served. In San Diego, if the tenant has lived there more than 24 months, the 60-day notice must include “just cause.” The length of time that the tenants have lived in the property doesn’t start over with a new owner.
Q: A “squatter” moved into my property with out my knowledge, what do I do?
A: The squatter must be served with a 30-Day Notice to Terminate Tenancy, they are a tenant at will. If they don’t comply with the notice, you will have to start an Unlawful Detainer against them.
Q If my tenant gives me a Notice to Terminate Tenancy, what happens if they fail to move within the time specified in the notice?
A: If the tenant fails to move after the expiration of their Notice, you can proceed with an eviction against the tenants with no further notice.
Q I served a 30-Day (or 60-day or 90-day) notice to my tenant and they haven’t paid their rent for the current month, what can I do?
A Serve them with a 3-Day Notice to Pay Rent or Quit, and if they don’t comply, you can begin the Unlawful Detainer as soon as the 3-Day expires instead of waiting for the original Notice to expire.
Q How do I serve an evictions notice?
A Unless otherwise specified in your rental agreement, there are three ways to serve an eviction notice:
1.Personal service: Hand the notice to the person named on the Eviction Notice.
2.Sub-serving: Hand the notice to a competent member of the household (if someone named on the lease is not available), and immediately mail a copy of the notice to each tenant and Unknown Occupants. Some commercial leases require the mailing done certified. You will want to get the name of the person you serve (if possible) and a physical description.
3.Posting and Mailing: If nobody answers the door, and you do not know where the occupant works, you may accomplish service by posting the notice on the door, and also by mailing a copy of the Eviction Notice to each tenant.
Q: Do I have to hire a registered process server to serve my eviction notice?
A: No, however it is a good idea to do so, and here is why. The registered process server is knowledgeable about service laws and will deliver documents in compliance with those laws so that you are protected by the laws of the Court. Also, the is a presumption of proper service against a tenant who later claims to have never been served, whereas if you serve the notice it is simply your word against the occupants.
Q How and can I raise my tenants rent more than 10%?
A: You can raise the rent more than 10% as long as the tenant is not on a fixed term lease or in a rent controlled area, but first you need to give the tenant a 60-Day Notice of Change in Terms of Tenancy instead of the usual 30-Day Notice.
Q: I want to inspect the dwelling unit, but the tenant’s won’t let me in, can I just go in since I own the property?
A: No! First you need to serve them with a 24 Hours Notice of Intent to Enter Dwelling. Once the 24 hours are up, you may inspect the unit. If the tenant still refuses to allow you to inspect the property, you may have to get local law enforcement involved in order to enforce the notice.
Q What is a 24 Hours Notice to Enter Dwelling?
A This notice notifies the tenant that the owner or owner’s agent needs to enter the premises in 24 hours. The notice may be given if the owner wishes to inspect the property, needs to do necessary or agreed upon repairs, or show the dwelling unit to prospective purchasers. The owner should state the reason for entrance on the notice. The entrance of the premises should be done during normal business hours.
Q How do I serve the Notice to Enter?
A: The notice should be served on the tenant by personal service if possible, or substitute service if the named tenant is not home. If no one answers, post the notice on the door. 24 hours after the notice has been served, the owner or agent can enter the dwelling, pursuant to Civil Code §1954. If the tenant does not allow entrance to the premises, the owner may have to get local law enforcement to help enforce the notice.
Q: The tenants are destroying the property, what can I do?
A: If there are physical signs that the property is being destroyed, call local law enforcement to make a report. If the destruction is raised to a point of vandalism, this is a separate crime and local law enforcement should be contacted and charges should be brought against the tenants.
Q: There are still personal items of the tenant(s) left in the property after the lockout and/or after the tenants turned in keys/moved out, what do I do with them?
A: All personal items left by the tenant must be kept for a period of 15 days by law. If the items need to be removed from the property, they must be stored in a safe place for the 15 days. You can charge the tenant either the daily rental value of the property or the daily rental value of the storage unit for storing their property prior to releasing the property back to the tenant (except if the tenant retrieves the property within 48 hours from the residence). You should also mail the tenant a notice of abandoned property and right to claim property as soon as possible. It is always a good idea to take pictures of all of the items/property left behind as inventory of what was disposed of or sold. Always anticipate the worst, and hope for the best!
Q: My tenant left their dog, cat or other household pet behind, what do I do with it?
A: An animal is considered personal property of the tenants and must be stored and humanely taken care of for 15 days. You can charge the tenant for the care and storage of the animal if they wish to reclaim it. Once 15 days has passed, you can keep the animal, find it a home, or take it to the nearest animal shelter. Send a notice to the tenants and post one on the property.
Q: What are the basic laws regarding Security Deposits?
A: As of January 1, 2004, the landlord must include, with the Security Deposit Disposition Letter, copies of documents showing the charges that were deducted such as receipts for repair and labor, and must be able to provide information about the person doing the repairs. The Security Deposit Disposition Letter must be sent to the tenant within 21 days from the date they vacated the property, or the date you were notified they vacated the property, (Civil Code §1950.5).