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If the tenant has fallen behind in the payment of rent, and there are no other reasons to evict the tenant, the landlord should serve on the tenant a Notice to Pay or Quit.  This notice essentially states that the tenant must pay the past due rent within three days of receipt of the notice or he or she must vacate the premises.  The written lease will dictate when the rent is due and whether there is a grace period between when the rent is due and when payment is considered late.  The landlord must wait until the rent is late before serving a 3-Day Notice to Pay or Quit.  If the rent is late and the lease provides for the imposition of a late fee for untimely rent, the landlord may include the late fee on the 3-Day Notice to Pay or Quit.  If the tenant fails to pay the rent and late fee as stated on the 3-Day Notice within the three-day period, then the landlord may file the unlawful detainer lawsuit to evict the tenant.

What if the Tenant Offers a Partial Rent Payment During the Three-Day Notice Period?

The landlord has two options. First, he or she could refuse to accept the partial payment and proceed with the unlawful detainer action. Alternatively, the landlord can accept the partial payment and then immediately serve another 3-Day Notice for the unpaid balance.  This will give the tenant three more days to pay the difference.  If the tenant pays the difference within the three-day period as stated in the notice, then the matter is resolved.  If the tenant fails to pay the difference within the three-day period, the landlord may then proceed with the unlawful detainer lawsuit.

There are laws that dictate what specific language must be included in the written 3-Day Notice to Pay or Quit.  The 3-Day Notice must comply with these rules. Certain legalese, the language the landlord may not understand, must be included in the notice.   In addition, it is critical that the 3-Day Notice to Pay or Quit accurately state the exact amount of rent that is past due.

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What Approach Should a Landlord Take when Time Is of the Essence?

Sometimes the landlord wants the tenant out as soon as possible and the issue is not the tenant’s failure to pay rent.  In those situations, the landlord should serve a 3-Day Notice to Quit.  There are two types of 3-Day Notices to Quit where failure to pay rent is not the issue.  The first is when the tenant is in violation of a provision of the lease and is asked to cure the violation within three days or leave.   This is known as a 3-Day Notice to Cure or Quit.  This typically involves violations of rules of conduct as stated in the lease, such as parking in the wrong spot, placing personal property in common areas, keeping garbage in common areas, and other similar violations that may be considered minor or occasional.  For these types of notices, if the tenant cures within three days, the problem is resolved.  If the tenant fails to cure, then the landlord may file an unlawful detainer action to evict.

In some instances, the landlord desires to evict the tenant as soon as possible without providing the tenant any opportunity to cure. This is done by serving a 3-Day Notice to Quit. Typically, this type of notice is used when the tenant is engaging in an illegal activity on the premises that presents a health and safety concern to the other tenants, and/or is causing a destruction to the property.   In this situation, after the 3-Day Notice is served, the landlord should immediately file the unlawful detainer lawsuit if the tenant has not vacated within the three days stated in the notice.

What Considerations Would a Roseville Real Estate Attorney Address Before Recommending Filing a Three-Day Notice?

There are advantages and disadvantages for the landlord in using 3-Day Notices to terminate tenancies.   The primary advantage is that it is the quickest method to allow the landlord to proceed with an unlawful detainer lawsuit if necessary.   The sooner you start, the soon you get possession and the sooner you are able to re-let the property to another tenant. The disadvantage of using a 3-Day Notice is that it creates “disputed facts” that the tenant may be able to raise at trial.  If the issue is over rent, the tenant may dispute many factual matters, including whether and when notice was served, whether the amount stated on the notice was accurate, whether the tenant tendered rent during the 3-Day Notice period, and whether the landlord accepted any rent tendered.   Thus, at trial, the landlord must be in a position to prove these factual matters to the satisfaction of the judge.   There are other types of notices where issues of proof on factual matters are not necessary or required to win the unlawful detainer lawsuit.  In some instances, it may be a better tactic to use a different notice where proof of certain facts is not required.

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Many landlords process and serve their own 3-day notices before they consult with an attorney.  Some have learned from their prior mistakes and have figured out how to do it right.  When an unlawful detainer attorney is consulted, (s)he should carefully review with the landlord whether the 3-Day Notice is legally adequate before a recommendation is made to file the unlawful detainer action.   If there are defects in the notice, it is better to start over before the lawsuit is filed than to have to start over after the trial is lost due to a “defective notice.”

The attorneys at NewPoint Law Group are fully aware of the legal requirements of a 3-Day Notice and can advise whether it can hold up in court and further advise whether a 3-Day Notice is the best type of notice to have the tenant removed.  Please consult with a real estate dispute attorney at NewPoint Law Group on any notice issue. We can help you gain possession of your property as quickly as the law allows. To schedule a confidential consultation, call us at 1-800-358-0305 or contact us online today.

Be sure to check out our Unlawful Retainer Blog Series for further information: