Los Angeles Eviction Lawyer Blog

If you send out a 3 day notice to pay rent or leave and the tenant tenders the full amount of rent demanded in the notice and it is accepted by the landlord within the 3 day notice period then this cures the default and extinguishes the rental obligation.

The tenant’s performance within the 3-day period also nullifies any declaration of forfeiture in the notice. CCP §1161.5.  Therefore, if the tenant pays the rent due within the notice period it also eliminates your ability to terminate and evict the tenant.

To extinguish the rent obligation, the tenant must actually pay the amount due, or (under Civil Code §1500) deposit it in a bank account in the landlord’s name and give the landlord notice of the deposit.  A deposit in accordance with the provisions of CC §1500 is not a mere “tender” of rent, but actual performance that discharges the obligation. Walker v Houston (1932).

Payment of the rent demanded in a 3-day notice within the 3 days nullifies any declaration of forfeiture in the notice. CCP §1161.5.

Although a tender of rent refused by the landlord and not deposited in a bank to the landlord’s credit does not extinguish the rental obligation, it does ensure that the tenant has not breached the covenant to pay rent. Randol v Tatum (1893) 98 C 390, 398, 33 P 433. See also Walker v Houston (1932) 215 C 742, 745, 12 P2d 952.

Thus, although the landlord may still maintain an action for rent, the tender protects the tenant against an unlawful detainer action based on breach of the covenant to pay rent. An unaccepted tender is also sufficient to terminate the incidents of the tenant’s obligation to pay rent under the lease or rental agreement (e.g., interest, attorney fees, costs). CC §1504.  Holland v Paddock (1956).

A tenant who defeats an unlawful detainer action by proving tender of the rent, and who deposits the rent into court, might recover attorney fees under CC §1717(b)(2).

Although the general rule is that a creditor may refuse a tender made by check rather than in cash, if the mode of payment during the lease has been by check, then a tender by check is proper unless the tenant has been notified otherwise. Strom v Union Oil Co. (1948).

The first step in the process of a eviction on a foreclosure mortgage sale is perfecting title.  Generally title is duly perfected upon recording of the deed with the county recorder’s office.  In California, title is deemed perfected on the actual date of the sale if the trustee’s deed is recorded within 15 calendar days after the sale.

Once the title is perfected, the new owner can serve the Three Day Notice to Quit to begin the eviction process.

With the rise of foreclosure due to the poor economy, property is turning hands quickly.  Several entities and individual are acquiring property through trustee sales.

What generally happens is that the buyer bids on a property and acquires the property because they are the highest bidder.  After the deed of trust is transferred over and recorded, some of these new owners, are finding, when they visit their property is that the previous owner is still living there.  Some refused to move out.

As a result, the new owner now must evict the old owner out.  Its basically a eviction after a mortgage foreclosure sale.  It a summary proceeding in the same fashion as if there was a tenant that you need to evict.  However, only a three (3) notice to quit is required.  If after receiving notice the old owner refuses to move out, you can file your unlawful detainer complaint, serve him, and start the process.  Once the writ of possession is issued by the court, you can take it to the local sheriff office and have them evict the old owner.

The process can take about one month or longer depending on whether the old owner attempts to fight it.  It is becoming a necessity these days in the foreclosure market.

The Los Angeles City Council on May 21, 2010 is scheduled to consider an ordinance preventing the owners of thousands of apartments from imposing an optional 3% rent increase between now and Oct. 31.

The proposed ordinance would impose a rent moratorium for buildings constructed before 1978 that have six or more units, a group that is governed by the city’s rent-control law, according to the Los Angeles Times.

Owners of rent-controlled buildings with five units or fewer, a group some council members refer to as “mom-and-pop landlords,” would be exempt. Housing officials said at least 200,000 of the city’s 630,000 rent-controlled apartments would qualify for the exemption, which was proposed by Councilwoman Janice Hahn.

On May 7, the council by a narrow 8-6 vote approved a measure asking City Atty. Carmen Trutanich to prepare the rent moratorium, which was proposed by Councilman Richard Alarcon.

Under the city’s housing law, owners of rent-controlled properties are eligible to impose 3% rent increases on July 1. Opponents of the moratorium said they would ask the county to lower their taxes by reassessing their property values downward if the measure passes. Supporters pointed out that owners of rent-controlled buildings will still be allowed to pass various costs, including repairs, to tenants.

Here are some things you should know about how to count the number of days you have on a three day notice.
It doesn’t matter that you didn’t actually receive notice until later.  To count the three days, do the following:

- Ignore the date of service and start counting on the next day.

- If you were served personally, count three days.

- If you were served by “nail and mail” , count three days.

- If the third day falls on a Saturday, Sunday or holiday, ignore that day and move onto the next business day.

Example 1.

If you are served on Wednesday.  To count the three days, do not count Wednesday.  Begin with Thursday.  This makes Saturday the third day.  But Saturday is a holiday and so is Sunday.  So the third day is Monday.  Therefore you have until the end of Monday to comply.

Example 2.

If you were served on Friday.  Saturday is the first day.  Sunday is the second day and Monday is the third day.  Neither the weekend days extends the three day period.

I hope this explains and clears things up for everyone.

Sometimes, the tenant and landlord will agree that the tenant will rent the unit but the tenant cannot move in immediately.  In this situation, the landlord can ask the tenant for a holding deposit.  A holding deposit is a deposit to hold the unit for a stated period of time until the tenant pays the first month’s rent and any security deposit.  During this period, the landlord agrees not to rent the unit to anyone else.  If the tenant changes their mind about minding in, the landlord can keep at least some of the holding deposit.

A tenant can also lost all or part of their deposit if the reason they cannot rent is not their fault – for example, they lose their job and cannot afford to rent.

A holding deposit merely guarantees that the landlord will not rent the unit to another person for a stated period of time.  The holding deposit doesn’t give the tenant the right to move in.  The tenant must first pay the first month’s rent and other required fees and/or deposits within the holding period.  Otherwise, the landlord can rent the nit to someone else and keep all or part of the holding deposit.

If the landlord rents the unit to someone else during the holding period and the tenant was willing and able to move in and their paid a holding deposit then landlord should, at a minium, return the entire holding deposit to the tenant.

If a tenant gives a holding deposit to a landlord when they submit the rental application, and the landlord does not accept you as a tenant, then the landlord must return the entire holding deposit to you.

After a tenant receives a 3 day to pay or quit, if the obligation demanded (i.e., non payment of rent) has not been satisfied within 3 days after the notice was given then the landlord may then file suit in court to have the tenant evicted.  The landlord will start a proceeding called an Unlawful detainer.

If the tenant pays only a part of their rent, the landlord can still evict because the landlord is legally entitled to the full amount of the rent.

Landlords, I know you want to get your tenants out if they are not paying their rent or doing worse things like diminishing the value of your property or causing a nuisance but you need to be careful in California.

Here are some things that you can’t do:  Lock your tenant out, remove doors or windows, change locks, cut off utility services, or use other forms of harassment to make them move out.

Remember, they can file a complaint with the police if you locks them out or cuts off their utilities.  They can also sue you in Small Claims Court for your actions.

If they report you to a government agency, you cannot raise their rent, evict them, or decrease the services you provide to them because of the complaint. This protection is good for 180 days from the date they file their complaint.

So be smart and get proper legal advice.