Last year, California landlords had to jump through hoops to evict tenants for nonpayment. This year, it is much easier. In the article below, I’ll discuss how to draft and serve a notice under current law. Remember, always consult an attorney before performing an eviction, because the law changes frequently in this area, and the information on this page may no longer be accurate after a few months.
COVID-19 Tenant Relief Act likely will not apply
The COVID-19 Tenant Relief act modified the content of all notices. Any notice lacking the prescribed special language was void.
Those requirements remain, but they only apply if the missing rent payments are from the COVID-19 protected time period or COVID-19 transition time period. Both time periods ended on September 30, 2021. This means if the missing rent payments is from any period after September 30, 2021, then you do not need to consult the COVID-19 Tenant Relief Act.
What Notice Should Be Served
Code of Civil Procedure section 1161 requires landlords to give three-days’ notice to the tenant before the tenant becomes guilty of unlawful detainer. This is typically referred to as the “3-days to Fix or Quit Notice.” During COVID-19, the 3-day period was extended to 15-days, but for debts not covered by the COVID-19 Tenant Relief Act (see above), 3-days is sufficient.
Content of the Notice
To be successful in your eviction, the 3-day notice must include the following content: “the amount is due, the name, telephone number, and address of the person to whom the rent payment shall be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment . . . .” (Code Civ. Proc., § 1161.)
You do not need to use a pre-existing form. You may write the notice on your computer. Just make sure it includes all the information required and properly allows 3-days (not including weekends). (Note, you may allow more time. Sometimes there is a strategic advantage to “playing it safe.”)
Method of Delivery
The fix or quit notice must be delivered according to Code of Civil Procedure section 1162. The two most common methods are personal delivery, substituted service, and posting. They must be attempted in order.
1st: Personal Delivery
The code allows you to deliver the notice at the residence or at the tenant’s regular place of business. Code of Civil Procedure section 1162 subdivision (b) allows substituted service only if “[the tenant] is absent from his or her place of residence,[sic] and from his or her usual place of business. . .” This requirement sets the clear expectation that the landlord has tried both locations before opting for substituted service.
Tip: Keep notes on the times, dates, and locations that you attempt delivery of the notices. You will need this information later.
2nd: Substituted Service
If you have attempted service at the residence and the usual place of business, but you have not found the tenant, then you may leave it with “with some person of suitable age and discretion at either place. . .” (Code Civ. Proc, § 1162, subd. (a)(2).) When you do this, you must also mail a copy of the notice via US Postal Service to the tenant at the rented address. Both the physical delivery to a person of suitable age and the mailed copy must be sent in order for substituted service to be effective.
Tip: Substituted service does not require multiple attempts at personal service. If you attempt personal service and you meet a person of suitable age, leave a copy with the person. If you later attempt service at the usual place of business and fail to personally serve notice, then you have already completed the first step of substituted service and need only deposit your remaining copy of the notice in the mail.
If after several attempts, you still cannot find any person suitable for service under personal service or substituted service, you may post the notice and mail it. Like substituted service, you must both post and mail. Performing only one of these actions is not sufficient.
Tip: This is where your record of visits and attempts becomes most important. You will need to show the court that you attempted a reasonable number of times during morning hours and also during afternoon hours. The general rule is at least 3 attempts covering both time periods. (i.e. 2 morning attempts and 1 afternoon attempt OR 1 morning attempt and 2 afternoon attempts.) The attempts for the same time period must be made on different days.
Who Can Serve Notice
In this article, we talk about “serving notice,” which is different from serving process. Anyone can serve notices. There is no restriction. When you finally file for the unlawful detainer, you will need to serve two documents that together are referred to as “process.” Process cannot be served by the party who filed the complaint, which means that you need a friend or family member to physically hand the documents to the tenant. Personally, I use Nighthawk, which is a professional process server in Bakersfield. They are fast and cost-effective.
If you need help with an unlawful detainer action in Bakersfield, call Coleman & Horowitt. Ask to speak with Jared Clemence, and they will set up a meeting for you.