New rules of the road for 3-Day Notices

In our last article, we took a cautious approach in a recent court decision, namely Eshagian v. Capeda. We’ve since sunk our teeth into it. Most importantly, housing providers need to note the following when serving 3-Day notices:

  • Start and end dates of the notice period.

  • The date the notice was served.

  • A clear notation that weekends and judicial holidays do not count

  • If the rent is not paid by a certain date, the tenant will lose possession of the unit.

It seems reasonable to have transparency, but the appellate court overreached. Let’s review the case without getting bogged down in legal terms.

After failing to pay rent for several months and accruing $8,000 in rent, the landlord threw up his hands and had had enough. He commenced an eviction proceeding. Out of nowhere, the tenant claimed that he didn’t owe the rent and claimed that the unit was uninhabitable. This is a favorite gambit/stalling tactic used by tenants and their attorneys to avoid paying rent. The attorney for the landlord wanted some sort of substantiation of these claims, posing questions like,

  • Why do you dispute your obligation to pay rent?

  • You claim that the unit was uninhabitable. Did you alert the landlord that there were unlivable conditions in the rental unit?

  • What, specifically, rendered the place uninhabitable?

Interestingly, the tenant did not contend that the notice was defective or that he didn’t understand the notice. After a series of motions, the tenant didn’t respond. Accordingly, the court issued a Writ of Possession. The Sheriff’s office locked out the tenant after the tenant owed 11 months of rent.

The tenant was a Johnny-come-lately in later griping that the notice was defective. On the eve of being evicted, the renter claimed that they were bamboozled.

Let’s ponder that for a moment. 

This gentleman, who did not pay rent for almost a year, claimed that the notice to pay rent was flawed. Really? As preposterous as it is, an appellate court rewrote the law and expressed some sort of empathy for an “ordinary tenant” who may be prone to understand the lease terms.

To which we say, can a so-called ordinary tenant believe that they can occupy a property rent-free for 8 months?

The appellate court stated that…

“…the notice did not state when the notice period commenced or ended, nor did it inform [the tenant]…when the notice was served, which commenced the three-day period. Absent this information, an ordinary tenant would not have reasonably understood the deadline by which the tenant needed to pay the rent due to avoid forfeiture of the premises.”

 

Generally speaking, an appellate court cannot raise issues that are not aired out in the lower court. But that’s exactly what happened. They issued a law out of thin air. Although the court, in our view, has overstepped its authority, we have to comply with it.

Parting thoughts

In light of this decision, the rental housing community needs to take a hard look at their notices served to problematic tenants, whether for nonpayment of rent or other breaches of the lease.

Never letting the grass grow from underneath our feet, we are acclimated to the new lay of the land, and, as always, Bornstein Law can assist rental housing providers in adjusting to a new regulatory regime.