An unlawful detainer action which relies upon a defective notice will be subject to dismissal by the court
By Barbara Craig, Attorney-at-Law
Another rent due date has come and gone and your tenant has not paid their rent. To start the eviction process the first step is to serve a three day notice to the tenant for the nonpayment of rent. When calculating the amount owed, many landlords want to include the late fees, unpaid utility fees, costs of serving the notice, and bounced check fees in the three-day notice to pay or quit. But this is a fatal mistake — one that many landlords and property managers often make.
Case law and statutory rules do not allow for a landlord to include late fees or any other charges in the three-day notice to pay or quit. Including such fees in the three-day notice makes the notice defective. An unlawful detainer action filed against a tenant for failure to pay rent which relies upon a defective notice will be subject to dismissal by the court.
No landlord wants their eviction case to be dismissed and to have to start over due to a small issue which turns out to be a fatal flaw. The best course of action for landlords is to avoid including any additional fees or charges when preparing a three-day notice to demand the unpaid rent.
However, if the amount of additional fees is significant and a landlord desires to pursue full payment of these fees, a different type of notice can be utilized. To collect late fees, utility charges, interest owed, missed security deposit payments, bounced check fees, and any other fee or charge that is permitted under the lease terms, a three-day notice to perform covenant or quit can be prepared. If a tenant fails to pay these fees or charges, and their responsibility to do so is clearly spelled out in their lease, the tenant has violated a provision of the lease agreement.
If the tenant pays the amount specified in the three-day notice to perform covenant or quit, then the tenant has the right to stay in the property – provided they pay the rent as well. But if they don’t, the landlord can move for eviction by filing an unlawful detainer case.