Evictions for failure to pay rent
In a rental relationship, both landlords and tenants have mutual responsibilities, and for tenants, a foremost obligation is to pay rent on a timely basis. Once a month, they have the opportunity to violate this covenant of the lease. It is no wonder, then, that our office handles so many nonpayment of rent cases.
By far, the most important landlording decision is the selection of a tenant. Once asked what the most successful outcome of an eviction is, our response was an eviction that never occurs at all. Ideally, housing providers do a thorough job in the tenant screening process so that we can avoid a nonpayment of rent eviction.
Yet many rental risks can be concealed, and life happens for even the most credit-worthy tenants with a stellar payment history.
When rent goes unpaid, our firm can draft and serve a three-day notice to pay rent or quit, and this should be a blanket policy articulated to tenants at the outset of the tenancy. “Ms. Bogdan, it is our policy to serve a formal demand for rent when the rent is not paid on the first of the month, and in fairness, we do this with all residents.” Something like that.
From our hard-won experience, many landlords are conflict avoiders who kick the can down the road, or out of compassion for the tenant, allow extra time for chronically late tenants to pay rent. While housing providers can empathize with tenants going through a hardship, it is important to understand that landlords are operating a business, and whenever cash flow is interrupted, action must be taken.
Evictions for nonpayment of rent have been elongated.
When a proper 3-day notice to pay rent or quit is served and the tenant has not paid the rent within three days (excluding weekends and judicial holidays), the landlord has perfected their right to file an unlawful detainer action, which is the trade word for an eviction. Yet eviction entails a carefully choreographed series of steps governed by state law. Fundamentally, the eviction chronology hasn’t changed, as illustrated in this “cheat sheet.”
What has changed is the length of time it takes to see this process through from start to finish. At one point, we would tell clients that it is a 60-90 day process to recover possession of the unit. Fast forward to today and it’s more likely that it will take 120 days for this process to play itself out.
What is a painful pill for housing providers to swallow is they cannot accept a penny of rent after the eviction action is filed because once the landlord accepts rent, the tenancy is reinstituted and we’ll have to begin anew.
It’s hard enough to serve a nonpaying tenant with a notice, but a new law now doubles the amount of time that a tenant has to respond to eviction actions from 5 days to 10 days (not counting weekends and judicial holidays). This problematic statute only stands to prolong the misery of landlords bereft of rental income. We also expect that this extra breathing room will lead to a drop in default judgments and allow more time for tenants not paying rent to seek out free legal counsel that can delay the eviction even longer.
There are brilliant tenants’ attorneys who are looking for landlords to make mistakes. The antidote is to avoid these mistakes.
Once a proper 3-day notice to pay rent is served, there is a story yet to unfold. The biggest variable in our client’s success is which attorney the tenant gets and how hard they fight.
Tenants’ attorneys may or may not be great litigators, but they are adept at spotting procedural errors that can tank an eviction action. Even if the tenant indisputably owes months of rent, the landlord can still lose their case because of procedural errors, however trivial.
Let’s go over some common errors.
Demanding more rent that is due
Only legally due rent can be demanded. Late fees, utilities, or other miscellaneous charges owed by the tenant cannot be included. The 3-day notice to pay rent or quit is specifically for rent arrears.
Missing information in the 3-day notice
We’ll need the property address, tenant names, the amount of rent owed, and how to pay it, along with the contact information of the landlord. Although housing providers can accept electronic payments through platforms like Zelle, it cannot be the only payment option; tenants will need a specified physical address to make payments.
If a payment option is to deposit the rent at the landlord’s bank, the notice should point out the nearest bank branch where the rent can be deposited. At any rate, the matter is resolved once the tenant pays the rent within the required time frame. If landlords refuse to accept the payment before the notice expires but proceed with an eviction action anyway, it may come back to haunt them.
We’ll also need to state in no uncertain terms that if the rent goes unpaid, legal action will result.
Once the rent goes unpaid after the notice expires and an eviction lawsuit, there are several defenses that tenants or their legal counsel can argue.
Habitability issues
Whether the claim has any merit or not, a favorite argument is that the landlord did not maintain the rental unit in a livable condition, and therefore, rent is not due. We have always admonished landlords to anticipate this by doing three things.
Require that repair requests be made in writing: Don’t get us wrong. When housing providers are alerted to a problem in the rental unit through any mode of communication, they should promptly respond. Yet at the inception of the tenancy, we want to make it clear how tenants can make formal requests for repairs. Ideally, this is embedded in the lease. Too often, tenants will claim habitability issues without informing their landlord of any problems. Housing providers cannot make repairs when they are not alerted to a problem, and so the narrative we’d like to have in front of a judge or jury is that the tenant had ample opportunity to report issues if they arise but failed to alert the landlord.
Respond to repair requests promptly: Things can and will go wrong in a rental unit. Whenever there is a problem, we urge housing providers to get on top of it without delay. Sure, it may cost more to send out a contractor on a weekend, but it will be much more costly to be mired in a lawsuit.
Document correspondence with tenants: We want to demonstrate that the landlord has been communicative and responsive to repair requests. This does not mean that housing repairs need to capitulate to unreasonable demands for repairs or improvements that are not necessary. The rental unit need not be in pristine condition, but it must be safe and in a habitable living condition. Think no heat, a mold infestation, broken plumbing, etc.
What repairs are necessary? California Civil Code § 1941.1 outlines conditions under which a dwelling is considered habitable or not, and defines the implied warranty of habitability.
Housing providers are advised to acknowledge the request for repairs and document, in writing, the response to the request. For example, “Elena, thank you for alerting me to the water leak at 106 W Franklin Street. Upon your request, I sent ABC Plumbing to the property to assess the situation, and they did XYZ repairs. The situation has been remedied. Please contact me if any other issues arise.” Something like that.
But what if the repair is unnecessary? We still want to acknowledge and document it. “Elena, we are in receipt of your request for XYZ repairs, and regrettably, we have to decline this request for the following reasons….” Something like that.
The overarching point? We want to portray the landlord as a responsible housing provider that takes care of their property and does not ignore the needs and concerns of tenants.
Other potential missteps abound in terms of properly drafting and serving 3-day notices, and navigating the minefields of the eviction process when rent goes unpaid. Tether yourself to Bornstein Law to accomplish your goal as quickly and as inexpensively as possible, taking into account time, risk, and attorneys' fees.
Get cash flowing again. When tenants do not pay rent or are chronically late, it is time for a chapter change in the tenancy.
Bornstein Law can assist landlords in transitioning out non-paying or chronically late tenants so that a more credit-worthy, responsible tenant can be found.
Avoid procedural mistakes and costly delays by seeking proper counsel.