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Commercial Evictions… The Three Day Notice

Real Estate Law and Unlawful Detainers & Evictions

I have recently been handling a number of commercial evictions.  Several years ago I stopped handling residential evictions, but there are a lot of similarities in the process.

In California an eviction, (called an Unlawful detainer) is most often initiated because the tenant has failed to pay the rent when due.  The first step in such instances is to review the lease to make sure that any grace period has elapsed and then to serve the tenant with 3-day notice.

There are a number of requirements mandating what must be in a 3-day notice Unlawful detainer cases are strictly construed so if you mess up, you get to start all over again.  Among the key items in a 3-day notice are the name and address of the person to whom the past-due rent can be paid, the amount of rent due, and an election of forfeiture of the lease in the event that payment is not made.  There are other requirements as well so make sure you know what they are if you are going to do this yourself.

One of the advantages of a commercial tenancy is that the landlord can estimate the rent due in the 3-day notice.  Thus, if the estimate is wrong, that is not fatal to the unlawful detainer action.

The next step is to serve the tenant.  Service must be made personally or by a form of substitute service recognized under California law such as leaving a copy of the notice with someone at the premises and then mailing or posting and mailing if no one is available to leave the notice with.  California law also allows for notice as provided in a commercial lease, but serving the notice in a way not specifically authorized under California law is risky.

When the notice is effective may depend on whether the tenant was personally served or served by substitute service.  Clearly, if the tenant was personally served then the 3-day notice is really three days.  There is a split, however, when the tenant is served by substitute service and so the safer practice is generally to add another five days from the date of mailing.

If the tenant pays in full within the three days then there is nothing left to do until the next time the tenant defaults. However, if the tenant makes a partial payment, you should be careful in deciding whether to accept it and it may depend on what you put in your 3-day notice.

Assuming the tenant has not paid, the next step is filing the unlawful detainer action, which I will cover in a subsequent post.

If you or someone you know may need legal assistance regarding such matters, don’t hesitate to contact Brewer Offord & Pedersen LLP at (650) 327-2900, or visits our firm website to learn more about our attorneys and their practice areas at www.BrewerFirm.com.

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