Incurable breaches and statutory breaches necessarily forfeit the tenant’s right of possession. Incurable breaches either cannot be remedied within the notice period, or are incurable by statute. [CCP §1161(3)]

Statutory breaches, being incurable, include:

• an unauthorized subletting or assignment of the premises;
• a nuisance; or
• an unlawful use of the premises. [CCP §1161(4)]

The Three-Day Notice to Quit – Residential and Nonresidential published by RPI (Realty Publications, Inc.) is used by a property manager or landlord when a tenant under a rental or lease agreement commits an incurable breach or fails to perform obligations which cannot be performed or rectified within three days, to notify the tenant they are to vacate and deliver possession within three days. [See RPI Form 577]

The three-day notice to quit does not need to state the provision breached or the activity of the tenant constituting the breach. Further, it does not need to include a lease forfeiture declaration by the landlord. Here, the tenant’s right of possession is automatically forfeited by the tenant’s incurable or statutory breach. Since these breaches cannot be cured by the tenant, the right of possession may only be reinstated if the landlord chooses to later waive the forfeiture.

However, while a forfeiture of the lease has already occurred, a UD action requires service of a three-day notice before a landlord may recover possession.

To establish the UD of a property by a tenant or subtenant, statutory service requirements are to be strictly followed. [Lamey v. Masciotra (1969) 273 CA2d 709]

Both residential and commercial properties are subject to the same three-day notice and service rules.

The three-day notice may be served on the tenant by:

• personal service;
• leaving a copy with a person of suitable age and discretion at the premises and mailing a copy to the premises when the tenant is not personally served at their residence or place of business, called substituted service; or
• posting the notice on the leased premises and mailing a copy to the premises when the tenant is not available for personal service at their place of business or residence address if known, or a person of suitable age and discretion is not be found at the tenant’s residence or place of business, a form of substituted service termed loosely as “nail and mail.” [CCP §1162]

The first attempt to serve a three-day notice is by personal delivery of a copy to the tenant under the personal service method. [CCP §1162(a)(1), 1162(b)(1)]

Personal delivery can be made wherever the tenant is located. Personal service is 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 any attempt at substituted service.

Second, when the tenant is absent from both their residence and place of business (if known), the attempts to personally serve the tenant fail. In this event, a copy of the three-day notice may 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 their residence or the address where the property is located. [CCP §1162(a)(2), 1162(b)(2)]

Third, when both the tenant’s residence and place of business are unknown or the tenant cannot be found for personal service at either the residence or business addresses, or a person of suitable age and discretion cannot be found for substituted service at either location, these methods of service have failed. In this event, service of the three-day notice under the “nail and mail” approach is accomplished by:

• posting notice on the leased premises; and
• mailing a notice to the tenant at the address of the leased premises. [CCP §1162(a)(3), 1162 (b)(3)]

Editor’s note — Usually, a landlord’s resident or property manager is responsible for preparing and serving a three-day notice as part of their employment by the landlord. Thus, they avoid hiring third parties and incurring an unnecessary expense to serve the notice when the tenant cures the default within the three day period. [See RPI Form 590 and 591]

Statutory requirements need to be strictly followed when preparing and serving a three-day notice for the notice to be legally effective.

When the three-day notice is incorrectly or inaccurately prepared, or improperly served on the tenant, the notice is invalid. To maintain a UD action to evict the tenant, a new three-day notice needs to be correctly and accurately prepared, and properly served on the tenant. Only then can the landlord maintain a UD action when the tenant fails to cure the breach or vacate. [Lamey v. Masciotra (1969) 273 CA2d 709]

Further, a proof of service form needs to be filled out and signed by the person who serves the three-day notice. Without a proof of service accompanying the three-day notice, a UD action cannot be maintained. [See RPI Form 580]

The individual who serves the three-day notice completes a form to confirm they properly served the notice and the manner of service completed. This form is called a proof of service. [See RPI Form 580]

The Proof of Service – For Service of Notice to Real Estate Tenants published by RPI is used by a property manager or landlord when serving a tenant a notice to pay, perform, vacate or quit or a notice of change in rental terms, to document the date and time the notice was served and the manner of service for use in any judicial proceeding. [See RPI Form 580]

When a UD action is filed to evict a holdover tenant, a completed proof of service will be produced at trial, as evidence the three-day notice was served.

When the three-day notice is personally served on the tenant, the individual serving the notice verifies in the proof of service that they made the personal service on the tenant at the address stated. [See RPI Form 580 §5.1]

When notice is served via substituted service, the proof of service verifies:

• the attempts to personally serve the tenant at both their home and business 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 three-day notice was mailed to the tenant at their residence. [See RPI Form 580 §5.2]

When the notice is served by posting on the premises, the proof of service 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 three-day notice was mailed to the tenant at the address of the leased premises. [See RPI Form 580 §5.3]

A notice to quit is distinguished in its use from a notice to vacate.

A notice to quit is used when the tenant has materially breached a rental or lease agreement and the landlord uses the breach, if uncured or incurable, to terminate the lease by a declaration of forfeiture in the notice or an automatic statutory forfeiture forcing the tenant to vacate or be evicted in a UD action.

Alternatively, a notice to vacate is used to terminate a rental agreement and cease the automatic renewal of the periodic tenancy when no breach of the rental agreement exists. Exceptions exist for terminating residential tenancies subject to rent control, Section 8 and foreclosure sales. [See RPI Form 569]

A periodic tenancy automatically continues for successive equivalent periods of time, such as a week or a month. The length of each successive period of time is determined by the interval between scheduled rental payments. A periodic tenancy is automatically renewed when the landlord accepts rent.

Examples of periodic payment intervals include:

• annual rental payments, indicating a year-to-year tenancy;
• monthly rental payments, indicating a month-to-month tenancy; and
• weekly rental payments, indicating a week-to-week tenancy.

A periodic tenancy is created when a landlord and tenant enter into a rental agreement. A rental agreement sets the terms of a periodic tenancy, including the rent to be paid, who will pay which utilities, and the maintenance responsibilities between the landlord and tenant. [See RPI Form 551]

A periodic tenancy also arises due to occupancy under a defective lease agreement. A tenant who enters into possession under an unenforceable lease agreement (e.g., oral, or unsigned) and pays rent in monthly intervals that the landlord accepts is a month-to-month tenant.

A periodic tenancy continues until terminated by service of a notice to vacate. This makes a periodic tenancy flexible, since it allows either the landlord or the tenant to terminate a month-to-month tenancy by giving the other the appropriate notice to vacate. [Kingston v. Colburn (1956) 139 CA2d 623; Calif. Civil Code §1946; see RPI Form 569 and 572]

To terminate a periodic tenancy, the notice period needs to be at least as long as the interval between scheduled rental payments, but need not exceed 30 days. However, an exception exists when a residential tenant has occupied the property for more than 12 months, which requires a 60-day notice to terminate the periodic tenancy. [CC §1946.1; see RPI Form 569-1]

The 30-Day Notice to Vacate – From Residential Landlord published by RPI is used by a residential property manager or landlord when the landlord is terminating a month-to-month tenancy and the tenant has occupied the property for less than one year, requiring the tenant to vacate. [See RPI Form 569]

For commercial property, the 30-Day Notice to Vacate – From Nonresidential Landlord published by RPI is used by a nonresidential property manager or landlord when the landlord seeks to terminate a month-to-month rental agreement or the occupancy of a tenant paying rent under an expired lease, to terminate the tenancy and require the tenant to vacate. [See RPI Form 571]

A landlord may concurrently serve both a three-day notice to pay (perform) or quit and a 30-day notice to vacate or change terms. However, the notices need to be served separately. If attached or otherwise combined, other than their being served at the same time, they may be reasonably confused by the tenant as one. If challenged, the confusion might defeat any UD action based on the three-day notice.

Also, each notice is accompanied by its own separate proof of service to clarify their independent existence. [See RPI Form 580]