Hello everybody. In case you are not aware, on September 1, 2019 new 3-Day Notice laws and New Unlawful Detainer laws took effect. And they affect every landlord in California who serves a 3-Day to Pay Rent or Quit and every landlord who files an eviction action against a tenant.
I wrote about these new laws some months ago for AOA members. But now that the new laws are operational, they bear review.
Starting September 1, 2019, the counting of days lengthened for the 3 days which must elapse after the service of a 3-Day Notice to Pay Rent or Quit (AOA Form 103) or a 3-Day Notice to Perform or Quit (AOA Form 104).
So too did the counting of the 5 days which must elapse after personal service of a Summons and Complaint for an Unlawful Detainer.
Before reading further, I suggest that you pull out a 2019 calendar to follow along with the discussion below. Much of it will be confusing without a calendar in front of you.
New 3-Day Notice Changes
The Former Law: First enacted around 1872 (yes, 1872, not 1972) the third day after service of a 3-Day Notice was the end of the third calendar day after the Notice was served, unless that 3rd day was a Saturday, Sunday or legal holiday. It the third calendar day was a Saturday, Sunday or legal holiday, then the tenant had until the end of the first business day after the 3rd calendar day to pay the rent.
If the first or second day after the Notice was served was a Saturday or Sunday, those days were counted to determine the 3rd day. It was only when the 3rd day was a Saturday, Sunday or holiday that the time is extended to the end of the next business day.
Here is an example of the former law: If the 3-Day Notice was served on Friday August 23, 2019, the 3rd day by which the tenant must pay or perform was the following Monday, August 26. That is because Saturday and Sunday counted as days 1 and 2. If the notice was served on Wednesday August 21, the third calendar day would have been Saturday August 24, but the tenant would still have had until the end of the following Monday to pay or perform because Saturdays and Sundays did not count if they were the 3rd calendar day.
The New Law: Starting September 1, 2019, the law changed. Now the only days that count for the three days are those days which are not Saturdays, Sundays or legal holidays. [Technically, Sundays are legal holidays in California.]
So under the new law, if the tenant is served with a 3-Day Notice on Wednesday November 27, 2019, the tenant would have through the end of Wednesday December 4 to pay or perform a covenant in the lease. That is because Thursday November 28 is Thanksgiving (and not counted) and the next day (Friday) is considered a legal holiday (and not counted). Further, the following Saturday and Sunday are not to be counted either. So the three days which would be counted would be Monday, Tuesday and Wednesday (i.e., December 4) of the following week.
There are 13 legal holidays in California, not including Saturdays and Sundays. They are: New Year’s Day, Martin Luther King Day (third Monday in January), February 12 (Lincoln’s Birthday), the third Monday in February (President’s Day), March 31 (Cesar Chavez Day), Memorial Day (last Monday in May), the 4th of July, Labor Day (first Monday in September), Columbus Day (second Monday in October), Veterans Day (November 11), Thanksgiving, the Friday following Thanksgiving, and Christmas. [Technically, Saturdays are not legal holidays, but they are not counted anyway.]
Also there are a few qualifications to the dates of those legal holidays. If January 1, February 12, March 31, July 4, September 9, November 11, or December 25 fall on a Sunday, the Monday following is declared to be a legal holiday.
If Veterans Day (November 11) falls on a Saturday, the preceding Friday is declared to be a legal holiday.
The California Legislature’s reason for enacting the new law is that it believes: “Three calendar days to cure a breach [or pay the rent due] is an unreasonably short time period and results in many avoidable evictions of tenants who could have paid the rent or resolved the problem with a little more time.” (Calif. AB 2343)
Unreasonably short? It seems the Legislature willfully ignored the fact that tenants had a full month to save and budget for the rent which will be due on the first day of the next upcoming month.
The bottom line is that Saturdays, Sundays and legal holidays are now excluded from the three days that tenants will have to pay their rent of perform a covenant after receiving a 3-Day Notice.
So be careful when counting. If you file the eviction papers before the 3-day period expires, the entire lawsuit will be tossed out of court when you get to trial.
New Extended Time for Tenants to Respond to Unlawful Detainers
The Former Law:
As with 3-Day Notices, the California Legislature saw fit to extend the normal five day period for tenants to respond to an Unlawful Detainer Complaint after service of the Summons.
Before September 1, 2019, tenants who had been personally served with an Unlawful Detainer Summons and Complaint (i.e., the Court eviction papers), had five calendar days to file their responsive pleading with the Court. Usually, the pleading would be an Answer, though less frequently, it was a Demurrer or some sort of Motion.
However, if the 5th calendar day was a Saturday, Sunday or legal holiday, then the tenant had until the next business day to file his/her response with the Court.
Also (and this will be a little confusing, I know), if any one of the five days after personal service of the Summons was a legal holiday other than a Saturday or Sunday, then that legal holiday did not count toward the five days. The tenant was allowed an extra day. (CCP Section 1167)
Thus, if the tenant did not file his/her paperwork within the allowable time period, then the landlord could file his Request to Enter Default on the 6th day, unless the 5th day was a Saturday or Sunday or unless one of the five days was a holiday. (CCP 1169)
Here is an example: If the old law had not changed and the tenant was personally served with the U.D. Summons and Complaint on Friday October 11, 2019, he would have to respond by Thursday October 17. (The intervening Saturday and Sunday would be counted as part of the five days, but Columbus Day on October 14 would not counted.) If tenant did not file his responsive pleading by October 17, then the landlord could file a Request for Default on October 18.
The New Law:
Effective September 1, 2019, the tenant’s time to respond to the pleadings is now five calendar days after service (assuming personal service), but those five days exclude all Saturdays and Sundays as well as the 13 legal holidays listed above.
Here is an example: Assume that the tenant is personally served with the Summons and Complaint on Friday October 11, 2019. Can you figure out on your own (without reading further) what is the last day the tenant would have to respond to the Complaint? Hint: You will need to use a calendar.
Answer: He will have 10 days to file his response, that is, by Monday October 21. That is because Saturday and Sunday (October 12 and 13) are not counted, nor is Monday October 14 counted because it is Columbus Day. Nor are Saturday and Sunday (October 19 and 20) counted. If the tenant does not respond by October 21, then the landlord can file a Request for Default on October 22. Thus, the tenant will have 4 more days to respond under the new law than under existing law.
The Legislature’s rationale for extending the time for tenants to respond to the eviction papers was that tenants have “tremendous barriers” to responding within the existing five-day period. According to the Legislature, those barriers are that “legal forms are complex, attorneys are expensive, legal aid services are in short supply, and tenants have to travel to the courthouse, wait in line, fill out forms, make copies, and figure out how to serve process.” (Google: “California AB 2343” for the Legislature’s additional reasons.)
I have a better idea for tenants: Just pay your rent on time. You are required to do so by your lease and doing so will facilitate your landlord’s ability (landlords are people too!) to pay his taxes, assessments, bills and mortgage payments on time. If your landlord breaches his lease with you, file in Small Claims Court where the forms are simple, the trial comes quickly, and lawyers are not allowed. You would probably have better luck there anyway.
The bottom line for landlords is that the new law excludes all Saturdays, Sundays, and legal holidays when counting the 5 days after personal service of the U.D. Summons. Do not file for a default against the tenant until all 5 days have passed. If you file too soon, your default will be rejected by the court clerk and delay your case by perhaps two weeks or so.
2020 RESIDENT MANAGER LAW UPDATE
Starting January 1, 2020, the maximum monthly rent that can be charged to a manager who is required to live on site as a condition of employment will change.
Assuming that the landlord employs less than 26 people, then throughout the remainder of 2019, that maximum rent is capped at $621.28 for a single manager and $919.02 for a couple.
Beginning January 1, 2020, that maximum rent rises to $677.75 for a single manager and $1,002.56 for a couple. (The one exception to that law is what I call the Check Exchange exception. Please see the January 2019 issue of this magazine for a full discussion of that exception.)
Similarly, starting January 1, 2020, the maximum amount of discounted rent that may be credited to the wages owed to the manager who is required to live on site as a condition of employment will also change.
Assuming that the landlord employs less than 26 people, then throughout remainder of 2019, that maximum discounted rent that may be credited against wages will be capped at $621.28 for a single manager, and $919.02 for a couple.
Throughout 2020, the maximum discounted rent that may be credited against wages will be capped at $677.75 for a single manager and $1,002.56 for a couple.
Incidentally, from time to time readers telephone me to ask what the minimum amount of rent is that a landlord may charge their managers. The answer is that there is no set minimum rent. In other words, a landlord may charge reduced rent all the way down to zero dollars.
One other point of information: if the manager is not required to live on site as a condition of employment (such as might be the case in an under 16 unit building and provided the employment contract specifies that on site residency is not required to retain his job), then there is no mandated maximum amount of rent that the landlord may charge.
Concluding Remarks
By December 31, 2019, AOA members should review their written employment contracts to determine if they comply with the new 2020 labor laws. Depending on the circumstances, tens of thousands of dollars may be awarded against an owner if the manager’s compensation (whether it be wages, salaries, reduced rent or free rent, or some combination thereof) is not properly set forth in a signed written employment contract between the two.
Dale Alberstone is a prominent real estate attorney who has specialized in real property and resident manager law for 40+ years. He has been appointed to periodically serve as a judge pro tem of the Los Angeles Superior Court and is a former arbitrator for the American Arbitration Association.
Mr. Alberstone has been awarded an AV rating from Martindale-Hubbell. An AV rating reflects an attorney who has reached the heights of professional excellence and is recognized for the highest levels of skill and integrity.
The foregoing article was authored in September 2019. It is intended as a general overview of California law only and may not apply to the reader’s particular case. Readers are cautioned to consult an advisor of their own selection with respect to any particular situation.
Address correspondence to Dale S. Alberstone, Esq., ALBERSTONE & ALBERSTONE, 269 S. Beverly Drive, Suite 1670, Beverly Hills, California 90212 or telephone (310) 277-7300.