Hello everybody. In case you have not heard, get ready for tenants having more time to pay their rent and it taking more time for landlords to evict them when they don’t!
Starting September 1, 2019, the counting of days will be 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, will the counting of the 5 days which must elapse after personal service of a Summons and Complaint for an Unlawful Detainer.
My column this month will review the existing laws regarding 3-Day Notices and regarding service of Unlawful Detainer pleadings, and acquaint AOA members with the new laws that are soon coming.
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
A. Existing Law: Presently, and through August 31, 2019, the third day after service of a 3-Day Notice is the end of the third calendar day after the Notice is served, unless that 3rd day is a Saturday, Sunday or legal holiday. If the third calendar day is a Saturday, Sunday or legal holiday, then the tenant has until the end of the first business day after the 3rd calendar day to pay the rent or perform the covenant.
If the first or second day after the Notice is served is a Saturday or Sunday, those days are counted to determine the 3rd day. It is only when the 3rd day is a Saturday, Sunday or holiday that the time is extended to the end of the next business day.
Here is an example. If the 3-Day Notice is served on Friday March 8, 2019, the 3rd day by which the tenant must pay or perform is the following Monday, March 11. That is because Saturday and Sunday count as days 1 and 2. If the notice is served on Wednesday March 6, the third calendar day would be Saturday March 9, but the tenant would still have until the end of the following Monday to pay or perform because Saturdays and Sundays do not count if they are the 3rd calendar day.
As far as I can determine, that has been the law since 1872.
B. New Law: Starting September 1, the law changes. At that time, the only days that will count for the 3 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 Friday September 6th, the tenant would have through the end of Wednesday September 11th to pay or perform because the intervening Saturday and Sunday are not to be counted. Under existing law, the tenant would only have until Monday September 9th to pay.
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 a legal holidays.
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 November 11 falls upon 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 has 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 starting September 1, 2019, Saturdays, Sundays and legal holidays will be excluded from the 3 days that tenants will have to pay their rent 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
A. Existing Law: As with 3-Day Notices, the California Legislature has seen fit to extend the current 5 day period for tenants to respond to an Unlawful Detainer Complaint after service of the Summons.
Presently, and through August 31, 2019, tenants who have been personally served with an Unlawful Detainer Summons and Complaint (i.e., the Court eviction papers), have 5 calendar days to file their responsive pleading with the Court. Usually, the pleading is an Answer, though less frequently, it may be a Demurrer or some sort of Motion.
However, if the 5th calendar day is a Saturday, Sunday or legal holiday, then the tenant has 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 is a legal holiday other than a Saturday or Sunday, then that legal holiday does not count toward the five days. The tenant is allowed an extra day. (CCP Section 1167)
Thus, from now through August 31, 2019, if the tenant does not file his/her paperwork within the allowable time period, then the landlord may file his Request to Enter Default on the 6th day, unless the 5th day is a Saturday or Sunday or unless one of the five days is a holiday. (CCP 1169)
Here is an example: If the tenant is personally served with the U.D. Summons and Complaint on Friday October 11, 2019, he must respond by Thursday, October 17. (The intervening Saturday and Sunday are counted as part of the five days, but Columbus Day on October 14 is not counted.) If the tenant does not file his responsive pleading by October 17, then the landlord can file a Request for Default on October 18.
B. New Law: Effective September 1, 2019, the tenant’s time to respond to the pleadings will be 5 calendar days after service (assuming personal service), but those five days exclude all Saturdays and Sundays as well as the legal holidays delineated above.
Here is an example: Assume once again that the tenant is personally served with the Summons and Complaint on Friday October 11, 2019. He will then 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. In other words, the tenant will have 4 more days to respond under the new law than under existing law.
The bottom line for landlords is that the new law will exclude all Saturdays and Sundays, as well as legal holidays, when counting the 5 days after personal service of the U.D.
The Legislature’s rationale for extending the time for tenants to respond to the eviction papers is that tenants have “tremendous barriers” to responding within the existing 5 day period. According to the Legislature, those barriers are that “legal forms are complex, attorneys are expensive, legal aid services are in short supply, 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 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 will exclude all Saturdays and Sundays, as well as 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.
RESIDENT MANAGER LAW UPDATE
In the 2019 January and February issues of this AOA magazine, I discussed the maximum monthly rent that a California landlord may charge resident managers who are required to live on site as a condition of employment.
From my columns in those issues, readers may recall that if the landlord employs less than 26 people, the maximum monthly rent during 2019 that may be charged for a unit occupied by a single manager who must live on site is $621.28, and the maximum rent that may be charged for a unit occupied by two managers (i.e., a couple) who must live on site is $919.02. (The one exception to that law is what I call the Check Exchange exception. Please see the January issue of this magazine for a full discussion of that exception.)
Some readers have since telephoned me to ask what the minimum amount of rent is that a landlord may charge to such managers. The answer is that there is no set minimum rent. In other words, a landlord may charge any amount of reduced rent, all the way down to zero dollars.
Also, 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, 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.
If readers have not updated their written employment contracts to comply with the new 2019 labor laws, they should do so promptly. 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. He also testifies as an expert witness for and against other attorneys who have been accused of legal malpractice.
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 March 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 9021, or telephone: (310) 277-7300.