attempting to serve 3 day notice to pay or quit after second months rent is late

We are in California, my tenant moved in mid month, rent is due mid month in advance of each month according to our 6 month lease. He paid his rent 9 days late after first moving in which I accepted. Now we are going on the second month and he is now 10 days late and is giving me excuses, however, he has given me a personal check dated after the due date and told me he will call me when he is able to pay it. I have attempted to call him and get a difinitive date as to when he can pay but he is ignoring my calls and not returning calls after I left a message. I was willing to accept 1 week late payment but now the weekend is here and he is 10 days late so I am attempting to serve a 3 day notice to pay or quit on the following business day. My question is that the lease says he will have to pay a late fee after the 14th day of being late, so does this override my right to demand payment in full on the due date? Or shall I wait until after he is 14 days late to serve the notice? Also, I already accepted late payment the first month so does this affect my ability to demand rent in full on the due date in the forthcoming months including this month?

[sandyclaus]

Originally Posted by Unregistered We are in California, my tenant moved in mid month, rent is due mid month in advance of each month according to our 6 month lease. He paid his rent 9 days late after first moving in which I accepted. Now we are going on the second month and he is now 10 days late and is giving me excuses, however, he has given me a personal check dated after the due date and told me he will call me when he is able to pay it. I have attempted to call him and get a difinitive date as to when he can pay but he is ignoring my calls and not returning calls after I left a message. I was willing to accept 1 week late payment but now the weekend is here and he is 10 days late so I am attempting to serve a 3 day notice to pay or quit on the following business day. My question is that the lease says he will have to pay a late fee after the 14th day of being late, so does this override my right to demand payment in full on the due date? Or shall I wait until after he is 14 days late to serve the notice? Also, I already accepted late payment the first month so does this affect my ability to demand rent in full on the due date in the forthcoming months including this month?

You absolutely have the right to expect that rent will be paid on the due date. That's what the stated expectation was when the lease was signed, and both you & your tenant signed and agreed to this.

The late fee provision is NOT a waiver of the tenant's obligation to pay on time, but a clause with a financial penalty that should discourage them from doing it again. Some will try and claim that the rent isn't late until the late fee period kicks in, but that isn't true at all. It's late after the due date, they just don't have to pay the penalty until the late fee date specified.

I personally would have given the tenant a written warning the first month, pointing out the the due date section of the lease. I certainly wouldn't let them off that easily with it happening again in the 2nd month. It's now become apparent that your tenant has no intention of paying on time, and will continue to abuse the privilege if you don't take action now.

You do NOT have to wait to give your 3 day notice until the 14th day. You can give your notice on the day after the due date. DO IT NOW! Make sure that your 3 day includes only the total rent due, NOT late fees, penalties, utilities or other amounts (or it will be invalid).

As for me, I would also be serving him with a 30 day notice to terminate their tenancy. Do you really want to have to continue worrying about whether or not you will be getting your rent from this tenant, either late or at all? Nip it in the bud, once and for all, and give this late-paying tenant the heave ho, and find yourself someone more reliable.

Do I understand you right in that you have a check for the rent in your possession? Take that check immediately to the tenant's bank. They don't care about the date on it and neither should you. A check is to be good the minute it is written. If someone writes a check without sufficient funds, regardless of the date on the check, it is a bad check and they can be prosecuted for it. Post dated checks are not legitimate. Those funds must be available when the check is tendered. Take it to his bank & let them stamp it NSF so you have proof he failed to pay the rent. Take a witness in case they will not stamp it NSF. (Take it to his bank so you won't be charged with the NSF fee from your bank.) Then serve the Pay or Quit as stated by sandyclaus. File to evict once the notice period expires. Accepting rent late once does not set enough of a precedent to suggest that rent is not due on that date.

The only thing I disagree with is the 30 day termination notice. Since this tenant has a lease, you must file to evict. If he were a m2m tenant, you could terminate with proper notice, but not if he has a lease.

Thanks for the reply. If I am holding the check, which the tenant has verbally expressed is not good yet, can I be held accountable for not taking it to the bank? The tenant could lie and say he gave me the check and it's my fault I never took it to the bank. I don't trust this guy anymore. Also, who delivers the 3 day notice? not the landlord I assume. Do I get someone from the county to do it? And does there need to be a triplicate or can I just make copies for mine and courts records? It is also my understanding that I don't need to give a 30 day notice to move out after the 3 day notice expires, I can just file an unlawfull detainer and have them deal with kicking him out correct? Never done any of this before and I want to do it all correctly because I want this guy and his family out for good!

[sandyclaus]

Originally Posted by Unregistered Thanks for the reply. If I am holding the check, which the tenant has verbally expressed is not good yet, can I be held accountable for not taking it to the bank? The tenant could lie and say he gave me the check and it's my fault I never took it to the bank. I don't trust this guy anymore. Also, who delivers the 3 day notice? not the landlord I assume. Do I get someone from the county to do it? And does there need to be a triplicate or can I just make copies for mine and courts records? It is also my understanding that I don't need to give a 30 day notice to move out after the 3 day notice expires, I can just file an unlawfull detainer and have them deal with kicking him out correct? Never done any of this before and I want to do it all correctly because I want this guy and his family out for good!

Just because he handed you a check doesn't mean you have to take the money. You can return the check to the tenant. Return it via certified mail return receipt requested.

You can serve a 3 day notice yourself, you do not have to have someone else serve it for you. You can hand it to them, have someone else do it, or even post a copy on their door. If you post, you must follow up with a copy via mail as well.

Once the 3 days is up, you can file the Unlawful Detainer with the court. "They" do not do the follow-thru here, and it doesn't just happen - you are responsible for taking action from start to finish. If you are unclear on the process, I would consult with an attorney who can walk you thru or hire them to represent you by handling everything for you.

Since CA is so pro-tenant, I would verify that the check is no good before you continue. If the check was good (and you were just holding the rent without cashing it) the judge may toss the eviction case. I can see the tenant telling the judge you had his rent check and just refused to cash it! He'd show the check book register and the judge would ask if you had it. Don't allow the tenant to use this defense. Verify that the check is NSF, then serve the pay or quit immediately.

if you think california is so pro-tenant you should see what its like to be a tenant in new york

especially when they havent paid since november.

you'll have to wait 4 months to kick them out in spring because they don't allow you to kick tenants out in the winter in NY

Well I've delivered the 3 day notice to my tenant today (Monday) and he claims to have payment by Thursday. Do I count 3 days from tomorrow or is today considered day 1 of the notice?

[sandyclaus]

Originally Posted by Unregistered Well I've delivered the 3 day notice to my tenant today (Monday) and he claims to have payment by Thursday. Do I count 3 days from tomorrow or is today considered day 1 of the notice?

The 1st day is the day after you've served it.

The 3 day gives him the opportunity to cure his breach by paying his rent in full by the end of the 3 day period.
But once he gives you payment, he's cured the breach and his tenancy remains active. Since you want the tenant to leave anyway, you can still serve him after that with a notice of termination (30 day notice) so he will have to move.

The poster clearly said, "My question is that the lease says..." This tenant has a lease. He will be unable to terminate it if the tenant pays the rent and cures the violation.

If the tenant pays up, take the rent. The second next month's payment is late, serve another pay or quit. Keep copies to prove a pattern of habitual late payments. Hopefully you are in a rent controlled area of CA and you will be able to terminate based on that.