Chapter 21: Three-day notices to quit for nonmonetary breaches
213
Chapter
21
Three-day notices to quit
for nonmonetary breaches
After reading this chapter, you will be able to:
• differentiate between a curable breach a tenant can resolve and
an incurable breach a tenant cannot correct;
Learning
Objectives
• use a three-day notice to pay or quit when a tenant fails to timely
pay a money obligation;
• serve a three-day notice to perform or quit when the lease
provision breached is not for rent or other money obligation but
can be corrected by the tenant; and
• prepare a three-day notice to quit without an alternative when
the tenant’s breach is incurable or statutory.
assignment
notice to quit
curable breach
nuisance
monetary breach
reasonable person test
nonmonetary breach
retaliatory eviction
nonwaiver provision
statutory breach
notice to perform or quit
waste
On a routine inspection of an apartment complex, the property manager
observes a pet in one of the units. All the rental and lease agreements with
tenants in the complex prohibit housing of a pet on the premises. As a courtesy, the tenant is asked, both orally and by a personal note, to
remove the pet. However, the tenant retains the pet. Key Terms
Curable
and
incurable
nonmonetary
breaches
214
Landlords, Tenants and Property Management, Eighth Edition
To enforce the provision prohibiting pets in the tenant’s rental or lease
agreement, the property manager prepares a three-day notice to perform
or quit. The notice is served on the tenant. The notice gives the tenant an
ultimatum — either remove the pet (the performance required) or vacate
the unit within three days (the alternative performance). [See Form 576
accompanying this chapter] The tenant fails to remove the pet from the premises and remains in the unit
after the three-day notice expires. curable breach
A breach of the lease
agreement which can
be remedied by action
from the tenant.
Can the landlord file an unlawful detainer (UD) action to evict the tenant for
failure to either remove the pet or vacate under the three-day notice? Yes! On expiration of the three-day notice to perform or quit, the tenant
may be evicted if one of the conditions has not been met. Here, the tenant
breached the provision in their rental or lease agreement prohibiting the
keeping of a pet on the premises. This type of breach, which can be remedied
by the tenant’s action, is known as a curable breach.1 However, if the tenant breaches a provision in their rental or lease agreement
that the tenant is unable to perform within three days, the landlord or property
manager may serve a three-day notice to quit the premises, permitting no
alternative action. A breach which cannot be remedied by the tenant during
the notice period is classified as an incurable breach.2 Types of
three-day
notices for
various
breaches The three-day notice served on a tenant needs to be the correct type before
an unlawful detainer, or holdover, of a premises can be established and the
tenant evicted. Depending on the nature and extent of the tenant’s breach, one of the
following types of three-day notices may be served: • a three-day notice to pay rent or quit [See Form 575 in Chapter 20]; • a three-day notice to perform or quit [See Form 576]; or • a three-day notice to quit. [See Form 577 accompanying this chapter] monetary breach
A tenant’s failure
to pay rent or other
money obligation due.
nonmonetary
breach
A tenant’s breach of
any obligation other
than a monetary
obligation under the
lease agreement.
When a tenant’s breach is the failure to pay rent or other money obligation
before it becomes delinquent, the tenant is served with a three-day notice to
pay rent or quit. This type of breach is known as a monetary breach which
is curable by paying money. When the provision breached is not for rent or other money obligation, called
a nonmonetary breach, and the breach can still be quickly corrected by the
tenant, such as the pet situation in the opening scenario, the tenant is served
with a three-day notice to perform or quit. [See Form 576] 1 Calif. Code of Civil Procedure §1161(3)
2 CCP §1161(3)
Chapter 21: Three-day notices to quit for nonmonetary breaches
215
Form 576
THREE-DAY NOTICE TO PERFORM OR QUIT
Prepared by: Agent ____________________________
Broker ____________________________
Phone _______________________
Email _______________________
NOTE: A tenant who fails to perform any terms of the rental or lease agreement which can be performed or rectified must
within three (3) days after service of written notice of the breach, either cure the breach or vacate and deliver possession
of the premises to the landlord. [Calif. Code of Civil Procedure §1161(3)]
DATE: _____________, 20______, at _____________________________________________________, California.
To Tenant: _____________________________________________________________________________________
Items left blank or unchecked are not applicable.
FACTS:
1. You are a Tenant under a rental or expired lease agreement
1.1 dated __________________, at___________________________________________________, California,
1.2
entered into by _________________________________________________________, as the Tenant, and
1.3
1.4
________________________________________________________________________, as the Landlord,
regarding real estate referred to as __________________________________________________________
______________________________________________________________________________________.
NOTICE:
2. You are in breach of the terms of your rental or lease agreement as follows:_______________________________
___________________________________________________________________________________________
__________________________________________________________________________________________.
3. Within three (3) days after service of this notice, you are required to either:
3.1 Perform or rectify the breach by ____________________________________________________________
______________________________________________________________________________________
______________________________________________________________________________________.
OR
3.2 Deliver possession of the premises to Landlord or ______________________________________________
______________________________________________________________________________________.
4. If you fail to cure the breach or to deliver possession within three (3) days, legal proceedings may be initiated
to regain possession of the premises and to recover the rent owed, treble damages, costs and attorney fees.
5. Landlord hereby elects to declare a forfeiture of your lease if you fail to cure the breach noted above.
5.1 Landlord reserves the right to pursue collection of any future rental losses allowed by Calif. Civil Code
§1951.2.
6. State law permits former Tenants to reclaim abandoned personal property left at the former address of the Tenant,
subject to certain conditions. You may or may not be able to reclaim property without incurring additional costs,
depending on the cost of storing the property and the length of time before it is reclaimed. In general, these costs
will be lower the sooner you contact your former Landlord after being notified that property belonging to you was
left behind after you moved out.
Date:_____________, 20______
Landlord/Agent: ______________________________DRE #:____________
Signature: ____________________________________________________
Address: _____________________________________________________
____________________________________________________________
Phone: _________________________Cell: _________________________
Fax: _________________________________________________________
Email: _______________________________________________________
FORM 576
01-13
©2013 first tuesday, P.O. BOX 20069, RIVERSIDE, CA 92516 (800) 794-0494
When a tenant is in default for a failure to pay rent as well as a curable
nonmonetary breach, a three-day notice to perform or quit is used. The
demand to pay rent is listed as an additional (monetary) breach to be cured
under the notice to perform or quit. A three-day notice to quit without an alternative requires the tenant to
vacate. The notice to quit is served on a tenant when the tenant’s breach is: • a breach impossible to cure in three days3; or • a statutory breach.4
3 Matthew v. Digges (1920) 45 CA 561
4 CCP §1161(4)
Three-Day
Notice to
Perform or Quitt
216
Landlords, Tenants and Property Management, Eighth Edition
Notice to
perform or
quit notice to perform or
quit
A notice which
requires a tenant to
perform an action
to remedy a curable
breach of the lease
agreement. [ See ft
Form 576]
The three-day notice to perform or quit requires the tenant to either:
• perform under the breached lease provision; or • vacate the premises.5 The tenant’s breach of a provision in a rental or lease agreement needs to be
a significant breach, called a material breach, to justify serving a three-day
notice. A minor or trivial breach by the tenant will not support a three-day
notice.6
For a tenant to avoid a forfeiture of their right of possession, they are first
given an opportunity to reinstate the rental or lease agreement. The landlord
is required to give the tenant an opportunity to remedy the breach if the
breach can be cured in three days. The three-day notice to perform or quit specifies the provision breached and
the action to be taken to cure the breach. When the tenant cures the breach
before the three-day notice expires, the breach of the rental or lease agreement
is eliminated and possession continues as though no breach occurred. When a tenant fails to cure the breach by performance or by vacating
within three days after service of the notice to perform or quit and the notice
contains a declaration of forfeiture provision, the landlord may initiate a
UD action and have the tenant removed even if the tenant later performs.
The declaration of forfeiture in the three-day notice bars the tenant from
reinstating their right to possession after the three-day notice expires and
they have failed to first perform.7 Curable
nonmonetary
breaches
A tenant operates a retail business on leased premises. The lease agreement
requires the tenant to periodically hand the landlord an inventory of their
sales merchandise. Also, the landlord is permitted to examine the tenant’s
business records. The landlord makes a request for an inventory and access to the records. The
tenant does not provide the inventories or permit the landlord to examine
their business records. The landlord serves the tenant with a three-day notice to quit the premises.
No alternative performance is given to allow the tenant to rectify the failures
and stay. The tenant does not vacate the premises. The landlord files a UD action, seeking to evict the tenant since the tenant
materially breached a lease obligation. The tenant claims they cannot be evicted since the three-day notice did not
give the tenant the alternative to perform by delivering inventory lists and
records to avoid a forfeiture of possession. 5 CCP§1161(3)
6 Baypoint Mortgage v. Crest Premium Real Estate Investments Retirement Trust (1985) 168 CA3d 818
7 CCP §1161(3)
Chapter 21: Three-day notices to quit for nonmonetary breaches
217
Form 577
THREE-DAY NOTICE TO QUIT
Residential and Nonresidential
Prepared by: Agent ____________________________
Broker ____________________________
Phone _______________________
Email _______________________
NOTE: A tenant must vacate and deliver possession to the landlord within three (3) days after service of written notice for
breach of any terms of the rental or lease agreement which cannot be performed or rectified. [Calif. Code of Civil
Procedure §1161(4)]
DATE:_____________, 20______, at ______________________________________________________, California.
To Tenant: _____________________________________________________________________________________
Items left blank or unchecked are not applicable.
FACTS:
1. You are a Tenant under a rental agreement or expired lease agreement
1.1 dated ____________________, at _________________________________________________, California,
1.2
entered into by _____________________________________________________________, as the Tenant,
and _____________________________________________________________________, as the Landlord,
1.3
regarding real estate referred to as __________________________________________________________
______________________________________________________________________________________.
NOTICE:
2. You are in breach of the terms of your rental or lease agreement as follows:
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
___________________________________________________________________________________________
3. Within three (3) days after service of this notice, you are required to vacate and deliver possession of the premises
to Landlord or _______________________________________________________________________________.
4. If you fail to vacate and deliver possession of the premises within three (3) days, legal proceedings may be
initiated to regain possession of the premises and to recover the rent owed, treble damages, costs, and attorney
fees.
5. Landlord hereby elects to declare a forfeiture of your lease.
5.1 Landlord reserves the right to pursue collection of any future rental losses allowed by Calif. Civil Code
§1951.2.
6. Notice: State law permits former Tenants to reclaim abandoned personal property left at the former address of the
Tenant, subject to certain conditions. You may or may not be able to reclaim property without incurring additional
costs, depending on the cost of storing the property and the length of time before it is reclaimed. In general, these
costs will be lower the sooner you contact your former Landlord after being notified that property belonging to you
was left behind after you moved out.
Date: _____________, 20______
Landlord/Agent: _____________________________DRE #:______________
Signature: _____________________________________________________
Address: ______________________________________________________
______________________________________________________________
Phone:__________________________Cell: __________________________
Fax: __________________________________________________________
Email:_________________________________________________________
FORM 577
01-13
©2013 first tuesday, P.O. BOX 20069, RIVERSIDE, CA 92516 (800) 794-0494
Can the landlord maintain a UD action against the tenant based on the threeday notice to quit? No! The three-day notice served on the tenant needs to be in the alternative
— perform or quit. Here, the tenant is able to hand over an inventory to the
landlord and give the landlord access to the business records, all within three
days.8 8 Hinman v. Wagnon (1959) 172 CA2d 24
Three-Day
Notice to Quit
218
Landlords, Tenants and Property Management, Eighth Edition
When the tenant is capable of taking steps within three days which cure a
breach of a lease provision, the landlord needs to allow the tenant to cure the
breach, monetary or nonmonetary.9 Notice to
quit; no
alternatives
notice to quit
A notice the landlord
serves the tenant if the
tenant has made an
incurable breach or a
statutory breach.
Recall from the opening scenario the use of a three-day notice to quit when
the tenant’s material breach is:
• an incurable breach; or
• a statutory breach.
Incurable breaches and statutory breaches automatically forfeit the tenant’s
right of possession. Incurable breaches either cannot be remedied within the
notice period, or are incurable by statute.10 Statutory breaches, being incurable, include:
• an unauthorized subletting or assignment of the premises;
statutory breach
A breach of the lease
agreement which
automatically forfeits
the tenant’s right of
possession.
• nuisance; or
• unlawful use of the premises.11
The three-day notice to quit does not need to indicate the provision breached
or the activity of the tenant constituting the breach. Nor does it need to include
a lease forfeiture declaration by the landlord. The tenant’s right of possession
was automatically forfeited by the tenant’s incurable or statutory breach.
Since these breaches cannot be cured by the tenant, the right of possession
may only be reinstated if the landlord chooses to waive the forfeiture. However, while a forfeiture of the lease has already occurred, a UD court
requires service of a three-day notice before a landlord may recover possession.
Quit! The
breach
cannot be
undone
Consider a tenant who leases agricultural property. The lease agreement
states the tenant’s use of the property is limited to grazing sheep. However,
the tenant plants crops on the property in breach of the lease agreement use
provision. Based on the tenant’s unauthorized use of the premises, the landlord initiates
the eviction process by serving a three-day notice to quit on the tenant. The tenant’s use of the property to raise crops, instead of the single agreed-to
use as a pasture, is an incurable nonmonetary breach of the lease agreement.
The tenant cannot reverse the act or the effects of raising the crops on the soil
since the activity has already occurred.12
In another example, consider a tenant in possession of agricultural property
improved with an orchard. The lease obligates the tenant to poison squirrels
on the property to control the agricultural pest. 9 CCP §1161(3)
10CCP §1161(3)
11CCP §1161(4)
12Harris v. Bissell (1921) 54 CA 307 Chapter 21: Three-day notices to quit for nonmonetary breaches
219
The tenant does not poison the squirrels as required by the lease agreement
and the premises becomes infested with squirrels. The landlord serves the tenant with a three-day notice to quit the premises
based on the tenant’s failure to eradicate the squirrels with poison. The tenant does not vacate the premises. The landlord files a UD action to
evict the tenant. The tenant claims they cannot be evicted since the proper
notice to serve for the failure to poison the squirrels is a three-day notice to
perform or quit, allowing the tenant to cure their breach. However, the three-day notice to quit is the proper notice. The elimination
of squirrels by poisoning cannot be performed before the three-day notice to
quit expired.13
A tenant may be evicted for maintaining a nuisance or unlawful use of the
premises, even if these activities are not prohibited by the lease agreement.14 A nuisance includes anything which: • is injurious to health, such as contamination of the property’s soil; • is offensive to the senses, such as excessive noise levels or obnoxious
fumes; or • obstructs the use and enjoyment of surrounding property.15
For example, a tenant in a multi-unit property maintains a nuisance on the
premises in the form of excessive late-night noise. The noise interferes with
another tenant’s use or enjoyment of their premises. As a result, the landlord
may serve a three-day notice to quit on the interfering tenant. Also, a tenant who illegally sells, grows or manufactures controlled substances
on the premises has, by their actions, triggered an automatic forfeiture of the
leasehold. The tenant may be served with a notice to quit for maintaining a
nuisance. If they do not vacate, they may be evicted by a UD action.16
A tenant’s unlawful use of the premises under the statute includes violations
of local laws or ordinances if the prohibited use affects the property, such as
noncompliance with zoning ordinances restricting the use of the premises.
Again, the leasehold is forfeited automatically due to the statutory violation.
The three-day notice is required as a requisite to maintaining a UD action
when the tenant remains in possession.17
However, before the use is unlawful and justifies service of a notice to quit,
the use needs to: • threaten the physical safety of the property; • stigmatize the premises; or • impair the landlord’s continued receipt of rent. 13Matthews, supra 14CCP §1161(4)
15Calif. Civil Code §3479 16CCP §1161(4) 17Haig v. Hogan (1947) 82 CA2d 876 Breach of
statutory
prohibitions
is a forfeiture nuisance
An action which is
injurious to health,
offensive to the senses,
or obstructs the use
and enjoyment of
surrounding property.
Committing a nuisance
may trigger a threeday notice to quit.
220
Landlords, Tenants and Property Management, Eighth Edition
Nuisance or
unlawful use
For example, a tenant’s lease agreement contains a provision stating the
tenant will not use the premises for any unlawful purpose or to violate any
laws, a provision that restates the statute. The tenant’s business, which is authorized to operate on the premises, is
penalized for conducting the pricing of its services and goods in violation of
federal anti-trust laws. The landlord seeks to evict the tenant for unlawful
use of the premises in violation of the lease. Here, the landlord may not evict the tenant. The tenant’s violation of antitrust laws is the unlawful conduct of their lawful business, not an unlawful
use of the premises by the tenant.18 When a tenant’s activity is considered a nuisance or an unlawful use, a
three-day notice to quit may be served on the tenant even if the tenant is
able to cure the breach by terminating or eliminating the activity within
three days. The mere occurrence of the unlawful and endangering activity
automatically forfeits the lease, leaving nothing for the tenant to do except
vacate or be evicted based on the three-day notice to quit. Forfeiture on
assigning or
subletting
Consider a lease provision prohibiting the tenant from entering into a
sublease or an assignment of the lease without first obtaining the landlord’s
written consent, called a restraint-on-transfer provision. Unknown to the
landlord or the property manager, the tenant subleases the premises. The
property manager discovers the premises is occupied by a subtenant. The property manager names and serves both the tenant and subtenant with
a three-day notice to quit. The subtenant does not vacate the premises. The
landlord files a UD action to regain possession from both the tenant and the
subtenant. The tenant claims their leasehold interest cannot be terminated by the threeday notice to quit since the landlord cannot unreasonably withhold their
consent to a sublease of the premises. Can the landlord serve a three-day notice to quit and evict a tenant who
subleased the premises without their consent? Yes! The landlord may proceed to evict the subtenant based on a three-day
notice to quit. The tenant’s breach was the failure to request the landlord’s
consent prior to subletting the premises, an event that cannot be cured.
Further, as a statutory breach of the lease agreement, the tenant immediately
forfeits their right of possession. The landlord need not declare the forfeiture. The tenant cannot avoid the forfeiture of their right of possession due to the
breach by claiming the landlord was unreasonably withholding consent.
Here, the landlord was not given the opportunity to grant or withhold their
consent.19
18Deutsch v. Phillips Petroleum Co. (1976) 56 CA3d 586
19Thrifty Oil Co. v. Batarse (1985) 174 CA3d 770 Chapter 21: Three-day notices to quit for nonmonetary breaches
221
When provisions in a lease agreement prohibit assignment or subleasing
without the landlord’s consent, and the tenant does so without obtaining
consent, a three-day notice to quit may be served on the tenant to recover
possession. By statute, the act is an incurable activity that terminates the
lease, leaving no alternative to vacating.20
Assignment
or subleasing
prohibited
However, the landlord need not consider the lease terminated when the
tenant assigns the lease or sublets the premises without the landlord’s
consent. The landlord can waive the statutory forfeiture of possession. assignment
A tenant’s sublease of
a portion of the leased
premises.
Thus, a three-day notice to perform or quit may be served on the tenant. The
tenant may then retain their possession by requiring the subtenant to move
from the premises within three days.21
Waste to the leased premises by a tenant is a breach that cannot be cured.
Waste terminates the tenant’s right of possession. The tenant needs to vacate
if the landlord serves a three-day notice to quit. [See Sidebar, “Covering your
bases with alternatives”]
However, waste is grounds for eviction only when the value of the leased
premises is substantially or permanently impaired due to the tenant’s
conduct. Waste occurs when a tenant: • intentionally damages or destroys the leased premises; or • neglects the premises and impairs its value by failing to care for and
maintain it as agreed. Consider a tenant in an office building. The tenant’s lease agreement obligates
the tenant to follow all building rules. The building rules prohibit tenants
from adjusting the temperature controls. The tenant’s employees adjust the
temperature controls, resulting in damage to the thermostat. The landlord serves the tenant with a three-day notice to quit the premises.
The tenant does not vacate. The landlord then files a UD action. The landlord
claims the tenant committed waste to the premises since adjusting of the
temperature controls damaged the building’s thermostat. The tenant cannot, however, be evicted for waste. The damage to the
thermostat was minor and reparable within three days. Also, the landlord
was unable to demonstrate the tenant’s conduct substantially diminished
the property’s market value. 22
Now consider a landlord who discovers a tenant’s pets have damaged the
wooden floors, doors and plastered walls of the tenant’s apartment unit.
Unsanitary conditions also exist in the unit. A three-day notice to quit is served based on the tenant’s waste to the unit. 20CCP §1161(4) 21CCP §1161(3) 22Rowe v. Wells Fargo Realty, Inc. (1985) 166 CA3d 310 Waste forfeits
the lease waste
The intentional
destruction or neglect
of property.
222
Landlords, Tenants and Property Management, Eighth Edition
Again, the landlord is unable to evict the tenant for waste. The tenant’s
failure to maintain the unit has not significantly nor permanently lowered
the market value of the unit. The damage created by the tenant’s pets can be
repaired and the unit quickly returned to a marketable condition. The threeday notice to quit was inappropriate.23
Waiver of
breach by
conduct Consider a tenant of nonresidential property who wants to add further
improvements to the leased premises. The lease agreement requires the
landlord’s written consent before the tenant may make improvements to the
premises. The tenant submits a request to the landlord for approval of additional
improvements they want to make. The landlord does not respond to the
tenant’s request. Without the landlord’s consent, the tenant begins construction on the
improvements. The landlord is aware of the construction. Further, the
landlord knows the construction extends beyond the area of the leased
premises and encroaches onto other property owned by the landlord. The landlord demands the tenant remove the improvements they
have constructed. As a result, the landlord and tenant commence lease
negotiations to expand the leased premises to include the property on which
the improvements now encroach. During negotiations, the landlord accepts all rent payments made by the
tenant. Ultimately, the landlord and tenant are unable to reach an agreement.
The unauthorized construction remains unresolved. The landlord then
serves a three-day notice to quit followed by a UD action to evict the tenant. The tenant claims the landlord’s acceptance of rent payments waived the
landlord’s right to terminate the tenant’s possession on the tenant’s breach. Can the landlord evict the tenant? Yes! The landlord did not waive their right to terminate the tenant’s
possession by accepting rent addressed in the lease agreement. The landlord
continuously objected and never acquiesced to the construction of the
improvements. While the landlord accepted rent payments, the landlord demonstrated to the
tenant that they did not intend for the tenant to construct the improvements
and continue to occupy the premises under the terms of the existing lease
agreement.24
23Freeze v. Brinson (1991) 3 CA4th Supp. 1 24Thriftimart, Inc. v. Me & Tex (1981) 123 CA3d 751 Chapter 21: Three-day notices to quit for nonmonetary breaches
A tenant’s failure to comply with building rules or to maintain the premises in a clean and
sanitary manner are breaches of a lease agreement. Generally these types of breaches can
be remedied within three days.
The landlord who serves a three-day notice to perform or quit provides the tenant with an
opportunity to comply with building rules, or clean the premises and stay. If the tenant’s
breach remains uncured after three days, and the tenant remain in possession, the landlord
may file an unlawful detainer (UD) action to evict the tenant.
223
Sidebar
Covering your
bases with
alternatives
Consider again the tenant who may not be evicted for waste since their failure to follow
building rules did not permanently lower the market value of the premises.
A tenant whose breach results from the failure to follow building rules may stop the activity
constituting a violation on receiving a three-day notice perform or quit. If the tenant performs
on the notice by complying with building rules within the three-day period, the tenant cannot
be evicted.
However, the tenant might later resume the breaching activity. The tenant’s repeat conduct
may then constitute a nuisance, perhaps obstructing other tenants’ ability to enjoy the use
of the building.
The tenant will likely contest a three-day notice to quit for nuisance. The landlord will then
be forced to show how the tenant’s conduct constitutes a continuing nuisance. Also, a threeday notice to quit results in a forfeiture of the tenant’s right of possession, as no alternative
exists — a harsh result courts do not favor.
Thus, if the tenant’s breach is non-statutory and can be cured within three days, a three-day
notice to perform or quit is the proper notice to serve.
When a landlord is uncertain about whether or not a breach can be cured within three days,
a three-day notice to perform or quit will either:
• cause the tenant to cure the breach within three days; or
• support the landlord’s UD action to evict the tenant.
Many lease agreements contain an enforceable provision that states a
landlord’s waiver of a tenant’s breach of the lease is not a waiver of similar
or subsequent breaches by the tenant. This provision is called a nonwaiver
provision. [See first tuesday Form 552 §20.1] nonwaiver
provision
A provision in the
lease agreement that
states a landlord’s
waiver of a tenant’s
breach of the lease
is not a waiver of
similar or subsequent
breaches.
The
nonwaiver
provision
When a nonwaiver provision is in the lease agreement, the landlord’s
acceptance of rent does not constitute a waiver of their right to evict the
tenant for a separate or later breach of the lease.25
Consider a tenant who operates a concession stand on leased property.
The lease agreement prohibits camping on the premises and contains a
nonwaiver provision. The tenant is unable to stop campers from using the premises. The tenant
installs a sign stating camping is not allowed and erects fences to keep
overnight campers off the premises. On a demand from the landlord, the
tenant takes down the sign and fences. 25Karbelnig v. Brothwell (1966) 244 CA2d 333 Landlord’s
conduct
condones
breach
224
Landlords, Tenants and Property Management, Eighth Edition
On removal of the fence, the tenant advises the landlord of their inability to
prevent campers from using the premises without maintaining the sign. The
landlord does not respond, but continues to accept rent. After an extended time, the landlord serves a three-day notice to quit
for breach of the lease agreement provision prohibiting camping on the
premises. The landlord files a UD action to evict the tenant. Can the landlord evict the tenant? No! The landlord’s conduct misled the tenant into believing the breaching
conduct was no longer a concern of the landlord. The landlord was
prevented from processing an eviction based on tenant activity authorized
by the landlord. This holds even if the lease agreement contains a nonwaiver
provision.26 Once the tenant’s actions breaching a lease agreement provision have been
condoned by the landlord, the landlord has waived the nonwaiver provision.
They need to take reasonable steps if they intend to reinstate and enforce the
nonwaiver provision. A reasonable step to reinstate enforceability is the use of a written 30-day
notice to the tenant, stating the landlord’s intent to enforce the nonwaiver
provision in the lease agreement on expiration of the 30-day notice if 30 days
is sufficient time to cure the breach. [See Form 570 in Chapter 19] If the tenant continues to breach after expiration of the period for reinstating
the provision, the landlord may serve a three-day notice to perform or quit.
Service of
notice
Statutory requirements need to be strictly followed when preparing and
serving a three-day notice. [See Chapter 19] If the three-day notice is incorrectly or inaccurately prepared, or improperly
served on the tenant, the notice is invalid. To evict the tenant, a new threeday notice needs to be correctly and accurately prepared, and properly served
on the tenant.27
Further, a proof of service form is filled out and signed by the person who
serves the three-day notice. Without a proof of service, a UD action cannot be
maintained. [See Form 580 accompanying this chapter] Concurrent
service of two
notices
A landlord may concurrently serve both a three-day notice to pay (perform)
or quit and a 30-day notice to vacate or change terms. However, the notices
need to be served separately. If attached or otherwise combined, other than
their being served at the same time, they may be reasonably confused as one.
The confusion might defeat any UD action based on the three-day notice. 26Salton Community Services District v. Southard (1967) 256 CA2d 526
27Lamey v. Masciotra (1969) 273 CA2d 709 Chapter 21: Three-day notices to quit for nonmonetary breaches
225
Form 580
Proof of Service
Also, each notice is accompanied by its own separate proof of service to
clarify their independent existence. [See Form 580] For example, a tenant on a month-to-month tenancy breaches their obligation
to maintain the premises. The landlord concurrently serves the tenant with
both a three-day notice to perform or quit and a 30-day notice to vacate.
Each notice stands alone, unattached to the other, and is separately, but
concurrently, handed to the tenant. Each service is returned by the server
accompanied by a separate proof of service. The tenant fails to maintain the
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Landlords, Tenants and Property Management, Eighth Edition
premises under the three-day notice to perform and remains in possession.
The landlord files a UD action based on the service of the three-day notice
and its proof of service. At the UD hearing, the tenant claims they were unaware of their need to
vacate within three days since they were also served with a 30-day notice
giving the tenant 30 days to vacate. reasonable person
test
A test a court of law
uses to determine
reasonable behavior
between two parties.
The court examines the content of the separate notices. The court’s analysis is
based on the reasonable person test which sets guidelines for reasonable
behavior between the two parties to an action. The court finds that a
reasonable person might be confused by the separate requirements contained
in the concurrently served notices.
Therefore, the tenant is granted a relief from forfeiture of possession under
the three-day notice to perform or quit. The tenant is allowed to stay, on
the condition they immediately perform the maintenance addressed in the
three-day notice.28
Regardless of any confusion the tenant had, in response to the judgment the
tenant will either: • immediately perform the maintenance called for in the notice and
retain the right of possession; or • take no action, and be evicted from the property for failure to perform
the maintenance called for in the notice. Application
of the
reasonable
person test
Now consider a tenant under a month-to-month tenancy who is served with
a three-day notice and a separate 30-day notice at the same time. Each notice
has its own proof of service statement. The three-day notice to pay or quit requires the tenant to pay amounts due
and delinquent, within three days after service of the notice, or vacate and
deliver possession to the landlord. The 30-day notice to vacate states the tenant is required to vacate and deliver
possession of the premises to the landlord within 30 days after service of the
notice. [See Chapter 23] The 30-day notice does not request that the tenant pay any delinquent rent
which is due, only the amount which will become due within 30 days on the
first of the next calendar month. The tenant pays the rent before the threeday period expires. Later, at the end of the 30-day period, the tenant refuses to leave. The landlord
initiates a UD action on the 30-day notice to vacate. At the UD hearing, the
tenant claims they believed that by paying the delinquent rent under the
three-day notice, the 30-day notice was no longer applicable. Again, the court will apply the reasonable person test to determine if the
notices served might result in the tenant’s confusion. 28CCP §1179 Chapter 21: Three-day notices to quit for nonmonetary breaches
227
Courts also enforce the legislative scheme to make sure the landlord follows
all statutory requirements regarding content and service of the notice. If
the landlord is in compliance, the court awards the landlord relief available
under the legislative scheme. Here, the contents of the notices show they are mutually exclusive of one
another. Further, the three-day notice does not indicate that payment of the
delinquency mentioned in the three-day period nullifies the order to vacate
in the 30-day notice.
Also, while served concurrently, the landlord did serve the notices separately.
Both notices followed their respective legislative schemes: • one for collecting delinquent rent; and • the other for terminating the month-to-month tenancy. Finally, the tenant’s supposed confusion is not about the time for performance
or vacating while one of the notice periods remained unexpired. Rather,
the tenant assumed one notice overrode the provisions of the other, an
assumption unfounded and unreasonable, given the explicit content of the
notices. Thus, the tenant’s purported confusion is not a legal excuse for failing
to vacate.
A tenant under a month-to-month rental agreement continually fails to
timely pay rent and becomes delinquent on the current month’s rent. In
response to the repeated delinquencies, the tenant’s landlord concurrently
serves the tenant with a three-day notice to pay or quit and a 30-day notice
to vacate.
The tenant claims the 30-day notice was served to terminate their tenancy in
retaliation for being late with the rent, called a retaliatory eviction.
A retaliatory eviction occurs when a residential landlord attempts to evict a
tenant for: • exercising their right to file a complaint with an appropriate agency
regarding the habitability of the premises; • orally complaining to the landlord about the habitability of the
premises; • filing documents to initiate a judicial or arbitration proceeding
regarding the habitability of the premises; • organizing or participating in a tenant association or an association for
tenant’s rights; or • lawfully exercising any rights, such as the refusal to authorize
credit reports or personal investigation after taking possession of the
premises.29
29CC §1942.5
Retaliatory
eviction retaliatory eviction
A tenant who is
required to terminate
their tenancy for
lawfully exercising
any rights.
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Landlords, Tenants and Property Management, Eighth Edition
Here, the tenancy was not terminated in retaliation for complaints about the
habitability of the premises or for a legal right exercised by the tenant. Instead,
the tenant was being evicted for their continued delinquent payment of
rents — a breach by the tenant of the month-to-month rental agreement. Recall that a notice to vacate need not include a reason for the termination of
occupancy. It is therefore up to the tenant to determine whether the landlord’s
conduct may justify the claim of a retaliatory eviction. [See Chapter 23]
A landlord convicted of a retaliatory eviction is liable for punitive damages
up to $2,000 for each act of retaliation.30
30CC §1942.5
Chapter 21
Summary
The three-day notice served on a tenant must be the correct type before
the tenant’s unlawful detainer of a premises can be established and the
tenant evicted.
Depending on the nature and extent of the tenant’s breach, one of the
following types of three-day notices may be served:
• a three-day notice to pay rent or quit;
• a three-day notice to perform or quit; or
• a three-day notice to quit.
A breach which can be remedied by action from the tenant during the
notice period is known as a curable breach. A breach which cannot be
remedied by action from the tenant is known as an incurable breach.
When a tenant’s breach is the failure to pay rent or other money
obligation which is due, the tenant is served with a three-day notice
to pay rent or quit. This type of breach is known as a monetary breach
which is curable by paying money.
When the lease provision breached is not for rent or other money
obligation, called a nonmonetary breach, and the breach can still be
quickly corrected by the tenant, the tenant is served with a three-day
notice to perform or quit.
A three-day notice to quit is used when the tenant’s material breach is:
• an incurable breach; or
• a statutory breach.
Chapter 21
Key Terms
assignment..................................................................................... pg. 221
curable breach............................................................................... pg. 214
monetary breach........................................................................... pg. 214
nonmonetary breach................................................................... pg. 214
Chapter 21: Three-day notices to quit for nonmonetary breaches
nonwaiver provision................................................................... pg. 223
notice to perform or quit............................................................. pg. 216
notice to quit.................................................................................. pg. 218
nuisance.......................................................................................... pg. 219
reasonable person test ................................................................ pg. 226
retaliatory eviction ..................................................................... pg. 227
waste................................................................................................ pg. 221
statutory breach............................................................................ pg. 218
229