Understanding the 3-Day Notice to Pay Rent or Quit in California: A Landlord’s Guide
The eviction process is initiated by a notice, but rest assured, mistakes in preparing and serving the notice will lead to costly delays and interruptions in cash flow.
“Elena, I want you to know that it’s our policy across the board - this applies to all residents - to serve a formal notice demanding rent be paid within a specific window of time or risk having the matter escalated. We welcome you to our rental community, and we want to be fair to everyone, so we treat everyone the same with regard to late rent payments.”
Something like that.
Nonpayment of rent is easy to prove
We told CalMatters that while property owners may have other reasons to evict particular tenants, such as not keeping their unit clean or antagonizing neighboring tenants, “the easiest type to prove is nonpayment of rent.”
Amazingly, though, many housing providers seek other theories to evict a problematic tenant even though the rent is unpaid. Rather than building a case and gathering evidence for another reason to evict (nuisance behavior, for example), the path of least resistance is to proceed with an eviction for nonpayment of rent.
What must be included in the 3-Day Notice to Pay Rent or Quit?
These notices are designed to be technical for one reason alone: to protect tenants and set landlords up for failure. Any omissions or wrong information? The landlord will lose their case, even if it is indisputable that the tenant didn’t pay rent.
Let’s go over some items that need to be included in the notice.
Legal names of tenants:
These are adults (age 18+) who have signed the lease, as well as any spouses, roommates, or anyone else contractually responsible for the rent, even if their name isn’t listed on the lease. If multiple tenants are on the lease, all of them should be listed on the notice, even if only one failed to pay. If there are occupants who are not on the lease but are living in the unit, include “all other occupants in possession” of the unit.
This ensures that everyone staying on the property is properly notified and can be evicted if necessary. It can also prevent future disputes about who is or is not a tenant and who is legally entitled to be on the premises. However, if you know the name of the adult occupant, you should name the occupant in the notice.
Rental home address and Unit Number:
This should be self-explanatory, but double-check to make sure everything is right. For example, sometimes the address suffix is wrong; it is Franklin St. instead of W. Franklin St, or Avenue instead of Lane. Other times, the zip code is wrong.
Remember that any errors will derail an eviction case, extend the eviction timeline, and cost landlords additional legal fees.
The exact amount of rent the tenant owes:
When we say exact, we mean exact and not an estimate. Importantly, the dollar amount demanded can only be for base rent. Any non-rent fees, such as late fees, utility bills, repair costs for damages, and the like, cannot be included in the notice.
A cardinal sin is including miscellaneous charges in the 3-Day Notice to Pay Rent or Quit. An easy example: a notice is issued demanding $1,500, taking into account $1,300 in rent and another $200 in late fees. This is a defective notice.
Meticulous bookkeeping is one of the hallmarks of excellent property management, and when clients come into our office, we usually have a gut feel for how organized they are. Some are not sure how much rent is owed for what periods, and others have beautiful, detailed ledgers with copious notes in hand.
Rental housing providers need to know their numbers, and if this is an area of difficulty, consider entering the 21st century and investing in property management software solutions like Appfolio or Yardi.
A statement that all of the past due rent must be paid within 3 days, or the tenant must move out:
Some housing providers mistakenly believe that if the tenant comes up with the money after the 3-Day Notice to Pay Rent or Quit expires, the payment has to be accepted. Incorrect. If the tenant fails to pay within the prescribed period, the landlord does not have to accept it, and they have perfected their right to evict.
Verbiage explaining that weekends and judicial holidays are excluded:
The late-paying tenant must be apprised that they have bought extra time because the “3 days” may be elongated because weekends and judicial holidays do not count.
For example, the 3-Day Notice to Pay Rent or Quit is served on a Friday. That’s day zero. Saturday and Sunday don’t count. But neither does Monday because it’s Memorial Day. Tuesday begins day one, and Wednesday begins day two. Thursday marks day three, and the tenant has until Thursday at midnight to pay the rent arrears.
We want overexuberant landlords to be aware of this calculus so that they do not lose their case by not giving tenants ample opportunity to pay up.
A 3-day Notice to Pay Rent or Quit means 3 days. It does not mean 3 days plus whenever the tenant has the wherewithal or inclination to pay the rent.
If the landlord truly wants the tenant gone, they cannot accept a penny of rent after an eviction action is commenced; accepting payment reinstitutes the tenancy, and we’ll have to begin anew with the eviction process.
The name, address, and telephone number of an actual person:
An individual’s name, address, and phone number to reach them at should be included in the notice, and we emphasize the term individual. This is not to be confused with who the tenant can write a check out to or the bank account to make deposits to.
Indeed, many housing providers operate their rental businesses through LLCs and other business entities, but these entities are not individuals; we still need a real person to serve as a point of contact. The tenant can still make a check payable to XYZ, LLC.
How to pay the rent
It’s not enough that a tenant be put on notice that they need to pay the rent to stave off eviction; they also have to be given explicit instructions on how to pay the rent, and there are a handful of options.
Housing providers should ensure that the notice clearly states all acceptable payment methods. Ideally, there is a physical location such as a leasing office or a dropbox. The tenant should be informed of the hours when rent can be paid in person and who can accept the payment.
The overarching goal is to give the tenant a real opportunity to pay within the period required by a 3-Day Notice to Pay Rent or Quit. If housing providers do not adhere to the letter or spirit of the law, a court could invalidate the notice, and any resulting eviction could be dismissed.
Electronic deposits are a viable option for tenants to fulfill their obligation to pay rent, but come with many caveats.
Read our earlier article: How the digital age has transformed rental relationships »
Some housing providers cannot demand rent unless the amount reaches a certain threshold.
Certain cities like Oakland and Berkeley restrict landlords from serving a 3-Day Notice to Pay Rent or Quit unless the tenant’s unpaid rent exceeds a specific threshold aligned with the “Fair Market Rent” (FMR), as determined by HUD. This is based on the unit’s size.
What this vexing rule means is that if a tenant owes less than the HUD-established FMR for their unit size, housing providers cannot serve a 3-Day Notice to Pay Rent or Quit.
Let’s use as an example the current FMRs for Alameda County, and keep in mind that this is a fluctuating number adjusted annually.
As a hypothetical, a tenant rents a one-bedroom apartment for $1,500. The tenant misses their rent payment for June. Since the rent owed has not yet reached the threshold of $2,201, the landlord cannot serve a 3-Day Notice to Pay Rent or Quit. If the tenant misses July rent, then they are over the threshold, and a notice can be served.
The cycle perpetuates, and at Bornstein Law and our property management arm of Bay Property Group, we have already witnessed savvy tenants who take to the Internet, educate themselves on the law, and use this loophole to avoid making timely rent payments.
These cash-strapped or unscrupulous tenants will hold onto rent until the last minute - say the 25th of each month - to avoid paying the full amount of rent when it is due, knowing that they cannot be evicted for nonpayment of rent until they reach the threshold. If this becomes a pattern, our strong advice is to reject partial payments so as to allow enough debt to accumulate to serve a 3-Day Notice to Pay Rent or Quit and break the erratic cycle of payments.
How to serve the 3-Day Notice to Pay Rent or Quit
In California, a 3-day Notice to Pay Rent or Quit can be served in one of three ways: personally, by leaving a copy with a person of suitable age and discretion at the property and mailing a copy, or by posting and mailing a copy to the property. The landlord, their agent, or anyone over 18 can serve the notice.
Here's a more detailed breakdown:
Personal Service (Preferred Method):
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Hand the notice directly to the tenant or any tenant named on the notice.
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The person serving the notice should keep a record of the service, including the date and time.
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If a belligerent tenant refuses to take the notice or shuts the door, document the attempted service.
Substituted Service (Leaving with a Person and Mailing):
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If the tenant is not home, leave a copy of the notice with a person of suitable age and discretion who resides at the property.
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You must also mail a copy of the notice to the tenant's address via first-class mail, postage prepaid.
Posting and Mailing:
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If you cannot find a person of suitable age at the property, you can post a copy of the notice on the door.
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If you post a notice on the door, be sure to take photographs; notices can be torn down, but we want to show the court that you indeed posted it.
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You must also mail a copy of the notice to the tenant's address via first-class mail, postage prepaid.
Note that when filing an unlawful detainer complaint in court, housing providers must prove that the tenant was properly served with the notice. The proof must include:
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Who served the notice.
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When, where, and how it was served.
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Who received it (or where it was posted, if "nail and mail").
Without proper service and a declaration of service, the court may dismiss the case.
Even though landlords in California can serve notices themselves, any errors in service can invalidate the notice and delay the eviction process. Hiring a process server is relatively inexpensive compared to the cost of starting over. An experienced and trained process server is a neutral third party familiar with local court preferences and procedures.
Now that we have properly prepared and served the notice, we have perfected our right to file an eviction action, right? We’re not done yet.
A handful of rent-controlled cities require landlords to file or register a 3-Day Notice to Pay Rent or Quit with the local rent board or housing authority. While the demand for rent is the purview of state law, some local eviction protections go beyond state law.
For informed advice, contact the law firm built for rental property owners.
At first blush, demanding rent from a tenant late on payments is straightforward, but as you can see, landlords have a lot of rope to hang themselves. At Bornstein Law, our goal is to help housing providers get cash flowing again or recover possession of the unit as quickly as possible without costly delays. Call our office at 415-409-7611 or share the details of your challenges online.