When The Rent Is Unpaid, Act Immediately!

Last Updated: May 21, 2011By

By: GARY LINK, Attorney at Law

Although the legal process of evicting a tenant in California for non-payment of rent is among the most streamlined of legal proceedings, the beginning of that process is often delayed by the hesitancy of the landlord in serving a “Three Day Notice to Pay Rent or Quit” upon the tenant.

When a tenant has not paid the rent when due, landlords are confronted with a difficult decision as to whether a “Three Day Notice to Pay Rent or Quit” should be served immediately or at a later, more suitable or convenient date. For instance, landlords are justifiably concerned that serving the notice immediately may alienate the tenant or otherwise create unwanted and unwarranted disputes about the tenancy; whereas, waiting to serve the notice until later may allow the problem to dissipate or just “go away” by the tenant voluntarily paying at a later time.

Although it is a troublesome decision to make, I recommend that the “Three Day Notice to Pay Rent or Quit” be served upon the tenant right away! There are few reasons for delay.

The most common legal and practical exceptions to serving the “Three Day Notice to Pay Rent or Quit” right after the rent is due and unpaid are when the written rental agreement provides for a “grace period”; that the tenant has been a good tenant in the past and has expressed a temporary difficulty in paying the rent on time this particular month; or, that the tenant has had extraordinary medical expenses or family expenses and does not have sufficient funds to pay on or before the first day of this particular month.

We have all heard tenant excuses for untimely payment of rent. Nevertheless, it is the landlord’s burden to attempt to sort out the “fact from the fiction”. Regardless of the excuse, there is often no significant reason for the landlord to wait or delay serving the “Three Day Notice to Pay Rent or Quit.

For example, if the rent is due and payable on the first day of the month, and the tenant has not paid the rent, the landlord should have a properly prepared “Three Day Notice to Pay Rent or Quit” ready to be served upon the tenant on the second day of the month (note, however, that if the first day of the month falls on a court holiday such as Saturday, Sunday, or a holiday Monday – the “Three Day Notice to Pay Rent or Quit” may not be legally served upon the tenant until the second business day after the “holiday”.

The failure to serve the notice immediately may result in a tenant claiming at the eviction trial that the landlord “waived” the right to receive rent on the first day of the month or that the landlord and the tenant verbally “worked a deal” (modified the rental agreement) for rent to be paid later in the month, or that the landlord should be “estopped” (prevented) from demanding that the rent was due on the first day of the month because the landlord has accepted rent late on one or more occasions in the past.

After thirty-one years of practice representing landlords in the greater Sacramento area, it never ceases to amaze me how tenants with absolutely no corroboration of facts or proof, constantly claim to the court at trial that the landlord is the cause for the late payment situation because of a so-called “deal” or “waiver” by the landlord. Yet, it is apparent that the primary reason that judges listen so carefully to these “phantom” defenses is that they have all heard many cases where the landlord or the property manager waited and waited for the problem to just “go away” or that the landlord did indeed work out some type of verbal “deal” with the tenant.

The clear benefit to promptly serving the “Three Day Notice to Pay Rent or Quit” is that the landlord is then in complete control of whether to allow the tenant additional time to pay the rent or not. Note, however, that to avoid proof problems in court, any “deal” or agreement entered into MUST be in writing, and typically prepared by an attorney.

Prompt service of the “Three Day Notice to Pay Rent or Quit” will hopefully eliminate the possibility of the tenant claiming a defense at a trial of the matter, set a precedent for the future that the landlord will be insisting upon prompt and timely payment of rent, and most importantly place the landlord in control of the rental payment duty of the tenant.

As a final thought with regard to serving a Three Day Notice to Pay Rent or Quit, you should also consider whether the tenant is in default of any other provision of the rental agreement. If the covenant being violated by the tenant is curable, you may wish to include a concurrently served Three Day  Notice to Perform Covenant or Quit; you may also consider whether to serve a thirty or a sixty day notice to vacate at the same time. These, quite frankly, are issues that should be sorted out by an attorney before you choose to serve more than one appropriate notice at a time.

Mr. Link is an attorney in Sacramento, California who has been representing landlords, apartment complexes, property management and real estate companies in the Sacramento area since 1979. His office has filed over 38,000 eviction lawsuits in Sacramento, Yolo, El Dorado and Placer counties. He has personally litigated over 12,000 eviction trials. Mr. Link is frequent speaker on the subject of landlord-tenant law, fair housing, landlord rights, and evictions for the California State Bar Association, the Sacramento Valley Rental Housing Association, The Learning Exchange, Lorman Education Seminars, as well as other organizations. He can be contacted at (916) 447-8101 or by visiting his website at www.sacramentolandlord.com.


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