Q. When can I serve a 3-day Notice to Pay Rent or Quit?
A. A three day notice to pay rent or quit can be served the day after rent is due. Thus, if the rent is due on the first of the month then you could serve a 3-day Notice to Pay Rent or Quit on the second of the month. However, if the due date falls on a Sunday or holiday then you must give the tenant an additional day before the rent is due. Thus, if the rent is due on the first of the month and the second of the month is a holiday then the earliest you can serve the notice would be the third of the month.
Note: The notice must contain very specific elements including the tenants’ names, correct property address, total amount of rent due, dates that the rent calculated is owed for, name and address of person and place rent can be paid along with days and times that person will be available to receive the rent, and a valid telephone number. Make sure that your notice includes the above information, if it doesn’t – you are using an old 3-day Notice form and you will need to obtain updated forms to use. Remember, only unpaid RENT going back 12 months can be asked for in the notice “ NO LATE FEES OR UTILITY BILLS, ETC. may be included!
Q. I just want to get rid of my tenant. Can I just give them a 30 day notice to move out?
A. That depends on what type of tenancy you have with your tenant. If the tenant has a lease agreement with you then the answer is no, you cannot give the tenant a notice to vacate. If however, the tenant has a month-to-month rental agreement and has lived at the property for LESS than one year, then the tenant can be served with a 30 day notice to vacate. The tenant is still obligated to pay rent during this period, therefore if rent becomes due, you should only accept rent up to the expiration of the notice. This means, if the 30 day notice expires on the 20th of the month, and the rent is due on the first of the month, then you should only be accepting rent pro-rated for 20 days. DO NOT accept a full month’s payment as you will invalidate your notice. If the tenant fails to pay, you may still issue a 3-day Notice to Pay Rent or Quit, but only for the amount due up until the expiration of the 30 day notice.
Q. My tenant has been there over a year. Can I still give them a 30 day notice?
A. No, a tenancy of more than one year requires a 60 day notice. The same conditions apply as described for the 30 day notice above. Rent is still due and a 3-day Notice to Pay Rent or Quit can still be served if they do not pay the pro-rated rent on time.
Q. I own an apartment building in the city of San Diego. In one of the units I have a tenant who has lived in the building for about three years and pays his rent on time every month; however I would like to give him a notice to vacate. Can I give him a 60 day notice to vacate?
A. It depends on the circumstances of the tenancy (whether the tenant is on a month-to-month or a lease agreement) and where the rental is located. Certain cities have special laws that affect when a landlord may ask a tenant to vacate. For example for your situation, if the tenant is on a month-to month (as opposed to a lease) agreement and since the property is located in the City of San Diego, then you may give a 60 day notice, however you must include on the 60 day Notice to Vacate at least one of nine different reasons for giving him a 60 day notice. If none of the nine reasons applies to your matter then you will not be able to give your tenant a 60 day notice to vacate. Thus, it is important to inquire if the city in which your rental is located has any additional requirements it places on landlords before it will allow a landlord to issue a notice to vacate, as does the City of San Diego.
Q. What are the nine reasons that the City of San Diego allows a landlord to terminate a tenancy that has been in existence for more than two years?
A. San Diego Municipal Code Section 98.0730 states: A residential tenancy of more than two years duration shall not be terminated, nor shall its renewal be refused, except for one or more of the following reasons:
(a) Nonpayment of Rent. (This would require a 3 day pay or quit, not a 60 day)
(b) Violation of Obligation of Tenancy. The tenant has violated a lawful and
material obligation or covenant of the tenancy, except that the following may
not be grounds for termination or nonrenewal of a tenancy:
The failure to surrender possession of the rental-unit upon the expiration
of a specified term, except as provided in section 98.0730(e);
(c) Nuisance. The tenant is committing a nuisance or permitting a nuisance in, or
is causing damage to, the rental-unit or to the appurtenances thereof or to the
common areas of the housing complex containing the rental-unit, or is
creating an unreasonable interference with the comfort, safety, or enjoyment
of any of the other residents of the housing complex.
(d) Illegal Use. The tenant is using or permitting the rental-unit to be used for an
illegal purpose.
(e) Refusal to Renew Lease. The tenant who had a written lease or rental
agreement which terminated on or after April 26, 2004 has refused, after
written request by the landlord, to execute a written extension or renewal
thereof within the written period prescribed by the lease or state law for a
further term of like duration with similar provisions.
(f) Refusal to Provide Access. The tenant has refused to give the landlord
reasonable access to the rental-unit for the purpose of making repairs or
improvements, or for the purpose of inspection as permitted or required by the
lease or by law, or for the purpose of showing the rental-unit to any
prospective purchaser or mortgagee.
(g) Correction of Violations. The landlord, after having obtained all necessary
permits from the City of San Diego, seeks to recover possession of the rental unit
for necessary repair or construction when removal of the tenant is
reasonably necessary to accomplish the repair or construction work.
(h) Withdrawal of Residential Rental Structure from the Rental Market. The
landlord intends to withdraw all rental-units in all buildings or structures on a
parcel of land from the rental market.
(i) Owner or Relative Occupancy. The landlord, or his or her spouse, parent,
grandparent, brother, sister, child, grandchild (by blood or adoption), or a
resident manager plans to occupy the rental unit as their principal residence.
Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 18 years. He is also an adjunct law professor at the University of San Diego. Mr. Simone’s office is open Monday- Friday from 8:00 AM to 4:00 PM. Walk-in’s welcome -no appointment necessary. Tel: 619-235-6180, website: www.landlordslegalcenter.com or email [email protected].