This article explains the proper service of a 3-day notice, or other notice, on a tenant.
Diligence not required to locate a tenant
Even in the best of times, tenants become delinquent and need a reminder to come current, usually a more tender approach than service of a 3-day notice. And during the best of times, when rent is increased or landlord costs are shifted to the tenant, notice to vacate is usually given orally or in less formal writing than a printed notice conforming to statute.
Even then, some tenants fail to do as asked. It is then that the knowledge necessary to properly use and serve the correct notice, without more professional UD service assistance, falls on the resident manager, the property manager’s staff and the landlord. Good economic times for landlords and managers tend to be more relaxed in approach, financially allow them to call in a UD service to do the job of preparing notices and effecting service on the tenants.
However, as recession-induced vacancies rise, and with it delinquency rates among tenants, landlords also tighten their economic belt and begin to look to their managers to become, if you wish, more professional. They are told to prepare and serve notices on the tenants instead of outsourcing the work to UD services or attorneys.
The objective of service of a notice has two phases:
- to encourage tenant compliance by paying or vacating; and
- to establish the tenant’s unlawful possession of the property on failure to comply with the notice so the tenant can be evicted by a UD action.
Once learned, the rules for selecting the correct form, properly preparing it and legally serving it on the tenant remains the same over long periods of time and thus routine in application. This is landlording, and while it’s not rocket science, the rules require absolute adherence to attain the ultimate objective of eviction on tenant non-compliance.
A tenant delinquent in his rent may initially be hopeful for landlord leniency over the prospect the tenant is facing loss of shelter. But as a delinquency worsens, things can become testy, as cagey activities of the tenant attempt to delay what may be the inevitable – eviction.
Thus, the manager must have a fluid understanding of the eviction process – especially the service of notice, since the date of service commences the time period for compliance. If compliance by the tenant is not forthcoming, the tenancy is terminated on expiration of the period and continued possession is unlawful, the subject of evictions.
Suitable age and discretion
Rent owed by a residential tenant under a rental or lease agreement has become delinquent. In a final effort to collect the delinquent rent, the landlord (or property manager or unlawful detainer (UD) service) prepares a 3-day notice to pay rent or quit for service on the tenant.
The individual serving the notice, called a process server, attempts to personally serve the tenant at the tenant’s residence. The tenant is not present at the residence and the tenant’s place of business is unknown to the landlord.
However, a 16-year-old who responds to the process server at the premises is handed the 3-day notice. The process server believes the 16-year-old is of suitable age and discretion to accept service of the notice and pass it along to the tenant without the process server having to post the notice on the property.
A copy of the 3-day notice is also mailed on the same day to the tenant at the residence address since a business address is unknown.
The 3-day notice expires without the tenant paying the delinquent rent or vacating. A UD action is filed to evict the tenant.
At the UD hearing, the tenant defends his occupancy as lawful, by claiming the 3-day notice was improperly served. The tenant claims he cannot be evicted since a person of suitable age and discretion to accept service must be at least 18 years old to commence the running of the 3-day pay or quit period.
Is handing a copy of a 3-day notice to an apparently intelligent 16-year-old on the premises and mailing a copy to the tenant proper service to terminate the occupancy and establish an unlawful detainer of the property on its expiration?
Yes! The tenant’s unlawful detainer is established without personal service of the notice on the tenant. After an attempt at personal service, substituted service is authorized. Proper substituted service of a 3-day notice includes delivery of a copy to an intelligent and mature 16-year-old on the leased premises. Thus, having been served and the time for compliance expired, the tenant can be evicted. [Lehr v. Crosby (1981) 123 CA3d Supp. 1]
If the tenant is not available for personal service at his residence or his place of business, if known to the landlord, a 3-day notice may be:
- handed to any person who is of suitable age and discretion at either location; and
- copied and mailed to the tenant at his residence. [Calif. Code of Civil Procedure §1162(2)]
The rules for serving a 3-day notice do not specify a person of suitable age and discretion must be at least 18 years old.
A younger person who appears to be of suitable age and discretion, such as a guest or family member at the tenant’s residence or an employee at his place of business, is a person who may be handed the notice as part of the substituted service on the tenant.
Editor’s note — A person of suitable age and discretion to accept substituted service of a 3-day notice must, on questioning, be able to understand their responsibility to hand the notice to the tenant. If the responsibility is not understood, then the process server must post the notice at the rental property and mail a copy to the tenant.
Serving a notice
To terminate a tenancy under a 3-day, 30-day, or 60-day notice and establish a tenant’s unlawful detainer (UD) of the property on expiration of the compliance period set by the notice without compliance, the tenant must be served. Until served, the period for the tenant to comply with the notice does not begin to run and thus cannot expire.
To establish the UD of a tenant or subtenant by expiration of the proper notice period without tenant compliance, a requisite to a UD action, statutory requirements must be strictly followed when preparing and serving a 3-day notice. [Lamey v. Masciotra (1969) 273 CA2d 709]
Both residential and nonresidential property are subject to the same notice and service rules, with various records for compliance, to establish an unlawful detainer by the tenant.
When a rental or lease agreement is breached, one of the following statutory 3-day notices is served on the tenant, residential or nonresidential, to commence the running of the 3-day response period, depending on the type of activity or inaction which is the breach:
- a 3-Day Notice to Pay Rent or Quit [See first tuesday Form 575];
- a 3-Day Notice to Perform or Quit [See first tuesday Form 576]; or
- a 3-Day Notice to Quit. [CCP §1161; see first tuesday Form 577]
To terminate or modify the terms of a month-to-month occupancy under a rental agreement or expired lease which has been extended on a monthly basis, the compliance period for the notice depends on the tenant’s time in occupancy and the type of tenancy, residential or non-residential.
The period for compliance with the notice is commenced by serving the appropriate notice from the following:
- 30-day notice to vacate [See first tuesday Form 569];
- 60-day notice to vacate [See first tuesday Form 569.5];
- 30-day notice of change in rental terms [See first tuesday Form 570]; or
- 60-day notice of change in rental terms [See first tuesday Form 574].
Service by elimination of methods
The appropriate notice can be served on the tenant by:
- personal service by handing the notice to the tenant at the property, his place of business or wherever located;
- leaving a copy with a person of suitable age and discretion at the premises and mailing a copy to the premises if the tenant is not personally served at his residence or place of business, called substituted service; or
- posting the notice on the leased premises and mailing a copy to the premises if the tenant is not available for personal service at his place of business or residence address if known, or a person could not be found to be served at the tenant’s residence or place of business. [CCP §1162]
The first attempt at serving a notice must be by personal delivery of a copy to the tenant, called personal service. [CCP §1162(1)]
Personal delivery can be made wherever the tenant can be located. Personal service must be attempted at both the tenant’s residence and place of business, if known. These two attempts to personally serve the notice are a prerequisite to an attempt at substituted service.
Secondly, if the attempt to personally serve the tenant fails because he is absent from both his residence and place of business (if known), a copy of the notice may then be:
- handed to a person of suitable age and discretion at either the tenant’s residence or place of business; and
- mailed to the tenant at his residence, called substituted service. [CCP §1162(2)]
Thirdly, if both the tenant’s residence and place of business are unknown, which is rare, or the tenant cannot be found for personal service at either the residence or business addresses, and a person of suitable age and discretion cannot be found for substituted service at either place, the notice may be:
- posted on the leased premises; and
- mailed to the tenant at the address of the leased premises, loosely deemed service by nail and mail. [CCP §1162(3)]
Typically, a landlord’s resident manager or property manager is responsible for preparing and serving a notice as part of their employment by the landlord.
The attorney or UD service is often employed to handle the anticipated eviction and prepare and cause the notice to be served.
If personal service cannot be accomplished, the three-day notice period begins to run the day the notice is either served by substituted service and mailed, or posted on the property and mailed. The day following service is day one of three. If the third day is a Saturday, Sunday or holiday, the 3-day period continues through to midnight of the first business day which follows.
The individual who serves the notice must complete a form confirming he served the notice and the type of service completed, called a proof of service.
If a UD action is filed to evict a tenant, a completed proof of service must be produced at trial, evidencing service of the notice.
If the notice is personally served on the tenant, the individual serving the notice must verify he made the personal service at the address served.
When the server completes a substituted service, he verifies:
- his attempts to personally serve the tenant at both addresses were unsuccessful;
- the notice was handed to a person of suitable age and discretion at the tenant’s residence or business address; and
- the notice was mailed to the tenant at his residence.
If the notice is served by posting on the premises, the server verifies:
- no person of suitable age or discretion was available at the tenant’s residence and business addresses, or the addresses are unknown; and
- the notice was mailed to the tenant at the address of the leased premises.
Full compliance on each attempt
When serving a notice, the landlord must first attempt to personally serve the tenant before resorting to substituted service. [Nourafchan v. Miner (1985) 169 CA3d 746]
Personal service occurs when the notice is handed to the tenant, whether or not the notice is:
- accepted by the tenant; or
- dropped at the tenant’s feet after the tenant refuses to accept the notice.
Failure to attempt substitute service at both the tenant’s residence and place of business, if known, before service of the notice by posting the property results in defective service. The landlord will be unable to maintain a UD action against the tenant should the tenant challenge the service of the notice.
When attempting substituted service, merely showing, and not handing, a copy of the 3-day notice to a person on the premises and mailing a copy to the address is not proper service. [Kwok v. Bergren (1982) 130 CA3d 596]
When leaving a copy with a suitable person or posting a notice on the leased premises, service is completed only if the notice is also mailed to the tenant. [Jordan v. Talbot (1961) 55 C2d 597]
The notice, when required to be mailed, may be mailed by first- class, registered or certified mail.
However, the lone mailing of a notice is not itself a proper service. For service to be effective when mailed, the notice must first (following attempts at personal service) be either handed to an individual of suitable age and discretion or, if such an individual is not available, posted on the premises. [Liebovich v. Shahrokhkhany (1997) 56 CA4th 511]
No diligence required to locate
Personal service must first be attempted before resorting to substituted service, but reasonable diligence is not required in the attempt to locate the tenant so he can be personally served.
For example, consider a property manager of an apartment building who prepares a 3-day notice for service on a tenant. The property manager is unaware of any business address for the tenant. No business address is listed on the application to rent.
The property manager attempts to serve the 3-day notice on the tenant at his unit.
The property manager receives no response after ringing the doorbell and knocking on the door of the premises. Thus, no personal or substituted service can be made. The property manager posts the 3-day notice to the door with tape (or a nail) and mails another copy addressed to the tenant at the apartment unit by first-class mail.
The tenant does not pay the delinquent rent or vacate before the 3- day notice expires. A UD action is filed and served on the tenant.
The tenant claims improper service of the 3-day notice since the property manager made no effort to locate the tenant’s business address in order to personally serve him before serving the 3-day notice by posting the property and mailing him the notice.
However, the property manager is not required to use diligence, much less investigate the location of the tenant when attempting personal service of a 3-day notice. A review of the property management files and personal knowledge will suffice.
The property manager’s use of the post-and-mail alternative for service was proper. When the landlord or property manager is unaware of any address for the tenant other than the leased premises:
- no attempt to ascertain the tenant’s other address is necessary; and
- service by posting the premises and mailing to the leased premises is sufficient when no suitable person for substituted service is found at the premises. [Hozz v. Lewis (1989) 215 CA3d 314]
Consider an individual who leases space in a retail center to operate his business.
The tenant fails to pay his rent, and the property manager prepares a 3-day notice for service on the tenant. The property manager does not know the tenant’s residential address.
The property manager attempts to personally serve the tenant with the 3-day notice at the leased premises, his place of business, but the tenant is absent from the business. The manager does not know the tenant’s residential address.
The property manager hands the 3-day notice to an employee of the tenant and mails a copy to the tenant at the premises.
Is the method of service used by the property manager proper?
Yes! Since reasonable diligence is not required when attempting personal service, the property manager need not make a second effort, such as returning to the premises or looking in a directory or voting records, to discover the tenant’s residential address. [Nourafchan, supra]
Personal receipt of certified mail
Even if the attempted service is defective, the tenant’s admitted receipt of the 3-day notice establishes personal service. Thus, the defective service is no longer an issue. [Valov v. Tank (1985) 168 CA3d 867]
For example, a property manager sends a 3-day notice by certified mail. It is the property manager’s only attempt to notify the tenant. No personal service is attempted, no copy of the notice is left with a person of suitable age and discretion on the premises, and no notice is posted on the premises.
However, the tenant personally signs the postal receipt accepting the certified mail. Thus, the tenant personally receives the 3-day notice on the date he acknowledges receipt. The tenant’s acknowledgement of receipt confirms he has been personally served (by the post office) with the 3-day notice on the date he acknowledged receipt.
The mailing of the notice by the property manager did not constitute service of the 3-day notice on the tenant — even though certified mail was used. However, the tenant’s signing of the postal receipt is proof the tenant was handed the 3-day notice by a post office employee — which is personal service.
The tenant who fails to pay the delinquent rent within the three- day period following acknowledgment of his receipt of the 3-day notice by mail is unlawfully detaining the premises and can be evicted.
Editor’s note — If any person other than the tenant signs acknowledging the receipt of the mail from the USPS, personal service is not accomplished. [Liebovich, supra]
An evasive tenant might not pick up certified mail addressed to him when his rental payment is delinquent.