Terminating The Tenancy
If a landlord desires to terminate a tenancy, the landlord is required to comply with certain legal requirements and procedures. Proper preparation and service of a lease termination notice is critical the process. As the adage goes, a landlord rises and falls on its notice. In other words, if the landlord’s notice complies with the law and is served properly, the landlord should prevail. However, if the landlord’s notice fails to comply with the law, then the landlord may be forced to start an eviction case over from the beginning. Losing an eviction case can mean more than just lost time and rent. In some instances, it may mean the landlord is responsible for payment of the tenant’s attorney fees and costs. Now, more than ever, it is critical to have an experienced landlord-tenant attorney draft or review any notices or letters that are served on a tenant.
Three-Day Notice to Pay Rent or Quit
If a tenant fails to pay rent on time, the landlord may serve the tenant with a three-day notice to pay rent or quit. The notice must be in writing and describe the premises in question with reasonable certainty. The street address, unit number, city, state and zip code are generally sufficient. For residential tenancies, a three-day notice must state no more than the amount of rent due; and it must be served after the stated amount becomes due. For commercial tenancies, the landlord is entitled to estimate the amount of rent due.
The notice must include the name, telephone number and address of the person to whom the rent payment is to be made. If payment may be made personally, the notice must also state the usual days and hours the specified person will be available to receive the payments. Alternatively, the notice may state: (a) the name and address of a financial institution, and the account number at the institution, where the rent may be paid, provided it is within five miles of the rental property; or (b) that payment may be made pursuant to a previously-established electronic funds transfer procedure. The notice may be served “at any time within one year after the rent becomes due.”
If the tenant fails to pay the rent within three days after service of the notice, the landlord may file an unlawful detainer (eviction) action. The three-day period begins to run the day after service is made. If the final day of the notice period falls on a holiday, or a Saturday or Sunday, the notice period expires at the end of the next day that is not a holiday, Saturday or Sunday.
Three-Day Notice to Perform Covenant or Quit
For any breaches of the lease other than non-payment of rent, the landlord may serve the tenant with a Three-Day Notice to Perform Covenant or Quit. If the tenant fails to cure the breach within three days after service of the notice, the landlord may commence unlawful detainer proceedings.
Three-Day Notice to Quit
For certain “non-curable breaches”, the landlord may terminate the tenancy by serving a Three-Day Notice to Quit, which does not give the tenant an opportunity to cure the breach. Examples of breaches that are not curable include nuisance, waste (i.e. damage to the premises), using the premises for an unlawful purpose, or assignment or subletting in violation of the terms and conditions of the lease.
30/60 Day Notice of Termination of Tenancy
A month-to-month tenancy generally may be terminated with a Notice of Termination of Tenancy. Residential tenants who have been living in their units for less than one year must be given at least 30 days’ notice of termination. Residential tenants who have been living in their units for one year or more must be given at least 60 days’ notice of termination. The tenant, on the other hand, may terminate the tenancy on notice at least as long as the periodic term. Generally landlords need not state a reason for serving a notice. The notice to terminate may be served for any reason or no reason at all. However, tenants are protected against evictions motivated out of desire to retaliate against the tenant for the exercise of protected tenant rights.
90 Day Notice of Termination of Tenancy
A residential tenant whose rent is subsidized under the Housing and Urban Development (HUD) Section 8 Voucher program must be given at least 90 days’ notice of termination of tenancy. The notice must state good cause to terminate the tenancy under federal law and a copy of the notice must be served on the local Housing Authority at the time it is served on the tenant.