Is 3-day Pay or Quit Notice Appropriate?

This is a discussion on Is 3-day Pay or Quit Notice Appropriate? within the Landlord vs Tenant Issues forum, part of the REAL ESTATE & PROPERTY LAW category; California. My co-worker has had problems with her landlord for some time now. Back in November, her landlord gave her ...

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Old Jun 16th, 2009, 04:32 PM   #1
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Question Is 3-day Pay or Quit Notice Appropriate?

California.

My co-worker has had problems with her landlord for some time now. Back in November, her landlord gave her a verbal rental increase of $100/mo on her $600/mo rent. No written notice given. When she paid her rent for December, she didn't include the increase for 2 reasons: first, because she never got a written notice; and second, because CA law requires 60 day notice in writing prior to a rent increase of over 10%, which this was. When the landlord received less rent than expected, she gave her a 30 day verbal notice to vacate. My co-worker did not vacate or pay the rent increase within the 30 days, and the landlord then filed for eviction. Before filing, they told the tenant that they would not accept any further rent payments in any amount (and put this in writing). The landlord's case got dismissed for lack of proper notice because nothing was ever given in writing. After the landlord's case got dismissed, about 2 weeks later, the landlord served the tenant with a 3 day notice to pay or quit. The landlord still refused to accept any rent, and the notice period ended with the filing of a 2nd eviction case.

The landlord stood by his original termination notice and refused rent, so how could the tenant be given a valid 3 day notice to pay rent on an agreement that the landlord had terminated themselves? She acknowledges that she may be liable for holdover damages from the end of that agreement to now, but doesn't believe that she could be given the 3 day pay or quit for rent she didn't technically owe.

Can a 3 day pay or quit be used when it's only holdover damages that they claim are due & unpaid and not rent under an existing agreement? Would that be an appropriate use of the notice?
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Old Jun 16th, 2009, 04:52 PM   #2
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Default Re: Is 3-day Pay or Quit Notice Appropriate?

Intresting case. Be sure that all of the information below is on the notice correctly. If not, the notice is not valid.

California Courts: Self-Help Center: More Topics: Landlord/Tenant: Questions & Answers: Evictions Questions & Answers: A Guide for Landlords: What kind of notice does the landlord have to give the tenant?

3-Day Notice to Pay Rent or Quit

Landlords can use this notice when the tenant is behind on the rent. The notice must:

Be in writing,
Say the full name of the tenant or tenants,
Say the address the notice is about,
Say exactly how much rent the tenant owes* (the notice can't go back more than 1 year, even if the tenant owes back rent for a longer time),
Have the dates the overdue rent is for,
Say that this rent must be paid in full within 3 days of receiving this notice or the tenant must move out,
Say the days and times the tenant can pay the rent s/he owes, and the address s/he can pay it at,
If the tenant can pay the back rent by mail, give the address the tenant should send the money to, and
Have the landlord's signature and the date of the notice.
* The notice must NOT include other money the tenant owes, like late fees, interest, utilities, or damages.
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Old Jun 16th, 2009, 05:18 PM   #3
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Default Re: Is 3-day Pay or Quit Notice Appropriate?

Quote:
Originally Posted by jjones8601 View Post
Intresting case. Be sure that all of the information below is on the notice correctly. If not, the notice is not valid.

California Courts: Self-Help Center: More Topics: Landlord/Tenant: Questions & Answers: Evictions Questions & Answers: A Guide for Landlords: What kind of notice does the landlord have to give the tenant?

3-Day Notice to Pay Rent or Quit

Landlords can use this notice when the tenant is behind on the rent. The notice must:

Be in writing,
Say the full name of the tenant or tenants,
Say the address the notice is about,
Say exactly how much rent the tenant owes* (the notice can't go back more than 1 year, even if the tenant owes back rent for a longer time),
Have the dates the overdue rent is for,
Say that this rent must be paid in full within 3 days of receiving this notice or the tenant must move out,
Say the days and times the tenant can pay the rent s/he owes, and the address s/he can pay it at,
If the tenant can pay the back rent by mail, give the address the tenant should send the money to, and
Have the landlord's signature and the date of the notice.
* The notice must NOT include other money the tenant owes, like late fees, interest, utilities, or damages.
It has just about all of the above, and under normal circumstances, I'd say it was valid.

There IS a significant discrepancy in the amount of rent, though. The original rent was $600/mo on a verbal agreement, nothing in writing. The landlord indicates $700/mo in rent due on the receipt for December rent, which includes that $100 increase, applied too early (verbal notice given mid-November). And the complaint itself says that agreed rent was $750/mo - yet another $50/month claimed now.

In addition to the issues with uncertainty on the rent in the absence of a written agreement, be reminded that the landlord has consistently refused to accept any rent since December's rent was less than expected. She issued a 3 day pay or quit knowing full well that it would never be paid because she still refused to take any rent during the 3 days before filing the 2nd eviction case.

But the big question is whether or not a 3 day pay or quit can be given to collect holdover damages. Wouldn't it be implied that holdover damages are considered "damages" instead of unpaid rent, since the agreement to pay rent ended when the landlord cancelled the agreement and refused to accept it from the tenant? Isn't a 3 day pay or quit intended for unpaid rent only, since the law says inclusion of any other charges, fees, damages, etc. makes it invalid?
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Old Jun 17th, 2009, 08:40 AM   #4
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Default Re: Is 3-day Pay or Quit Notice Appropriate?

Was this a verbal month to month (periodic rental agreement) tenancy? If so please read the following.

California Tenants - California Department of Consumer Affairs

Oral rental agreements

In an oral rental agreement, you and the landlord agree orally (not in writing) that you will rent the rental unit. In addition, you agree to pay a specified rent for a specified period of time - for example, a week or a month. This kind of rental agreement is legally binding on both you and the landlord, even though it is not in writing. However, if you have a disagreement with your landlord, you will have no written proof of the terms of your rental agreement. Therefore, it's usually best to have a written rental agreement.

It's especially important to have a written rental agreement if your tenancy involves special circumstances, such as any of the following:

You plan to live in the unit for a long time (for example, nine months or a year);
Your landlord has agreed to your having a pet or water-filled furniture (such as a waterbed); or
The landlord has agreed to pay any expenses (for example, utilities or garbage removal) or to provide any services(for example, a gardener).
Any time that a tenant and a landlord agree to the lease of a rental unit for more than one year, the agreement must be in writing. If such an agreement is not in writing, it is not enforceable.

Now, if this was originally a long term (12 month or longer) written lease changed to a month to month after the lease expired, rent can not be increased unless a new month to month written contract shows an increase in rent or the original lease that has expired shows the increase upon going to a month to month. No verbal agreement can ever overturn a written agreement.

That being said, holdover damages are usually damages incurred after a lease has ended and a tenant has gone to a periodic lease. That would seem to entitle this land lord to recover any “holdover” monies due.
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Old Jun 17th, 2009, 11:08 AM   #5
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Default Re: Is 3-day Pay or Quit Notice Appropriate?

Quote:
Originally Posted by jjones8601 View Post
Was this a verbal month to month (periodic rental agreement) tenancy? If so please read the following.

California Tenants - California Department of Consumer Affairs

Oral rental agreements

In an oral rental agreement, you and the landlord agree orally (not in writing) that you will rent the rental unit. In addition, you agree to pay a specified rent for a specified period of time - for example, a week or a month. This kind of rental agreement is legally binding on both you and the landlord, even though it is not in writing. However, if you have a disagreement with your landlord, you will have no written proof of the terms of your rental agreement. Therefore, it's usually best to have a written rental agreement.

It's especially important to have a written rental agreement if your tenancy involves special circumstances, such as any of the following:

You plan to live in the unit for a long time (for example, nine months or a year);
Your landlord has agreed to your having a pet or water-filled furniture (such as a waterbed); or
The landlord has agreed to pay any expenses (for example, utilities or garbage removal) or to provide any services(for example, a gardener).
Any time that a tenant and a landlord agree to the lease of a rental unit for more than one year, the agreement must be in writing. If such an agreement is not in writing, it is not enforceable.

Now, if this was originally a long term (12 month or longer) written lease changed to a month to month after the lease expired, rent can not be increased unless a new month to month written contract shows an increase in rent or the original lease that has expired shows the increase upon going to a month to month. No verbal agreement can ever overturn a written agreement.

That being said, holdover damages are usually damages incurred after a lease has ended and a tenant has gone to a periodic lease. That would seem to entitle this land lord to recover any “holdover” monies due.
I understand the above. Here are answers to your questions, and hopefully I can get the answer I need from your next response.

The agreement was verbal, never put in writing. It was always a month-to-month tenancy, never a lease for a fixed term, and therefore didn't ever expire or turn into a month-to-month at it's expiration (because it never expired). Instead, the Landlord took it upon themselves to terminate, with verbal 30 day notice only, and all of their actions that followed showed their intention to keep it termnated.

The argument is that the landlord's action to terminate in the 1st place was retaliation for their tenant's refusal to pay an increase before it could legally take effect. When their verbal termination notice didn't stand up in court, they decided to retaliate once again, and then issued the 3-day pay or quit to collect rent amounts that were never agreed upon and that the landlord never intended to accept (as stated in his consistent refusals since the initial 30 day notice was given).

I'm understanding you correctly, the tenant that remained might be liable for holdover damages if the tenant remained at the end of a fixed-term lease. This tenant had no lease, only a month-to-month tenancy which the landlord himself terminated. For the sake of argument, however, let's assume it also applies in this case.

My interpretation is that holdover damages, though the equivalent of the monthly rent at the end of that lease term, do not constitute rent per se. They would be DAMAGES awarded by a judge at the time judgment is rendered. Given this understanding, wouldn't a 3-day pay or quit have been the wrong notice to use to terminate tenancy? I don't believe it is appropriate for the landlord to issue a 3 day pay or quit for damages they MAY recover IF they receive judgment in their favor. The notice is used to collect UNPAID RENT that would be due under whatever agreement or lease is in effect at the time the demand is made, and is invalid if it includes anything else.

In my opinion, the only appropriate notice would have been a properly served 30-day notice to quit, and let the judge hash out those holdover damages in the end if justified. Would you concur, or am I overanalyzing this?
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Old Jun 17th, 2009, 02:46 PM   #6
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Default Re: Is 3-day Pay or Quit Notice Appropriate?

Just because it always has been a verbal agreement, changes in rent are not legally given verbally. Also, if the land lord did not give 30 day written notice of such increase, this would be simple to prove. As the section of the law I sent you said. It gives little recourse to either party unless the land lord DID NOT send it in writing. If not in writing, you do not have to pay the increase.

California Tenants - California Department of Consumer Affairs Search "Rent Increase" in the link.

If you have a periodic rental agreement, your landlord can increase your rent, but the landlord must give you proper advance notice in writing. The written notice tells you how much the increased rent is and when the increase goes into effect.

California law guarantees you at least 30 days' advance written notice of a rent increase if you have a month-to-month (or shorter) periodic rental agreement.

Did the land lord provide the rent increase in writing?
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Old Jun 17th, 2009, 03:25 PM   #7
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Default Re: Is 3-day Pay or Quit Notice Appropriate?

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Just because it always has been a verbal agreement, changes in rent are not legally given verbally. Also, if the land lord did not give 30 day written notice of such increase, this would be simple to prove. As the section of the law I sent you said. It gives little recourse to either party unless the land lord DID NOT send it in writing. If not in writing, you do not have to pay the increase.

California Tenants - California Department of Consumer Affairs Search "Rent Increase" in the link.

If you have a periodic rental agreement, your landlord can increase your rent, but the landlord must give you proper advance notice in writing. The written notice tells you how much the increased rent is and when the increase goes into effect.

California law guarantees you at least 30 days' advance written notice of a rent increase if you have a month-to-month (or shorter) periodic rental agreement.

Did the land lord provide the rent increase in writing?
No. No written notice was ever given, only verbal. If it had been written, there also would be 60 days notice needed due to the fact that the increase exceeded 10% of the total rent.

The ONLY thing received in writing was the landlord's refusal to accept any rent following her 30 day verbal notice at the beginning.
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Old Jun 17th, 2009, 10:31 PM   #8
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Default Re: Is 3-day Pay or Quit Notice Appropriate?

You win... the law presented in this case are clear.

Have a nice day!
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Old Jun 20th, 2009, 01:39 PM   #9
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Default Re: Is 3-day Pay or Quit Notice Appropriate?

While the tenant wins on the fact that no written rent increase was submitted 60 days in advance, there is another consideration. The 30 day notice. Since the tenant had no lease, the tenant was a month to month tenant. LL can give 30 days notice (under 1 yr occupancy) to tenant to vacate unless tenant is in rent controlled areas. Was the tenant in rent control? If not, the LL can give notice and the tenant must vacate. Tenant can claim this was in retaliation of not paying the rent increase, and that would be up to a judge to decide on. But giving only a 30 day notice to a m2m requires the tenant to vacate.
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Old Jun 20th, 2009, 10:42 PM   #10
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While the tenant wins on the fact that no written rent increase was submitted 60 days in advance, there is another consideration. The 30 day notice. Since the tenant had no lease, the tenant was a month to month tenant. LL can give 30 days notice (under 1 yr occupancy) to tenant to vacate unless tenant is in rent controlled areas. Was the tenant in rent control? If not, the LL can give notice and the tenant must vacate. Tenant can claim this was in retaliation of not paying the rent increase, and that would be up to a judge to decide on. But giving only a 30 day notice to a m2m requires the tenant to vacate.
The original 30 day notice was verbal & invalidated by the judge on the 1st eviction. The 3 day was issued after dismissal of the 1st eviction, and with no rent due on a terminated agreement, this is where the problem arises. LL is claiming the value of property as unpaid rent, which would normally be considered instead as damages on an unlawful detainer action after an agreement is terminated.

I've argued that a 3 day is improper for this reason, and that the appropriate notice would be a 30-day once again, properly noticed in writing and served. This is all I wanted to confirm here.

Unfortunately for the LL, with delays caused by all of their improper eviction procedures, it has now been over a year that the tenant has occupied the rental. If she can invalidate he 3 day in her case, the LL now must serve a 60 day notice to terminate.
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