Waste forfeits the lease
Waste is the intentional destruction or neglect of property which diminishes its value.
The concept of waste exists in numerous real estate contexts. When an owner of encumbered property fails to meet their obligations regarding the care, use and maintenance of the secured real estate, the owner is in default under the waste provision in the trust deed. The default on the trust deed exists even though the owner may be current on all payments called for in the note. [Calif. Civil Code §2929; see RPI Form 450 §2.1]
Waste is also present in the context of landlord-tenant law. Under the terms of a lease agreement, a tenant agrees not to destroy, damage or remove any part of the premises or commit waste or permit any person to do so. [Calif. Code of Civil Procedure §732; see RPI Form 550 §6.10]
Waste to the leased premises by a tenant is a breach that cannot be cured. As an incurable breach, waste terminates the tenant’s right of possession. A landlord terminates a breaching tenant’s right of possession by service of a three-day notice to quit. [See RPI Form 577]
Editor’s note – If the property is subject to Just Cause eviction requirements, the landlord uses RPI Form 577-1. More information on Just Cause eviction requirements can be read here.
However, waste is grounds for eviction only when the value of the leased premises is substantially or permanently impaired due to the tenant’s conduct.
For instance, consider a residential tenant who occupies a rental unit. The tenant observes a leaking pipe in the unit. The tenant does not attempt to fix the leak or notify the landlord of the problem. Left uncorrected, the leak causes significant damage to the property. The tenant does not notify the landlord of the leak until immediately prior to the expiration of the lease term.
Here, the tenant committed waste since they neglected the property by failing to inform the landlord of the leak. Here, the damage resulted from neglect.
If the tenant or a person permitted on the premises by the tenant commits waste to the property, the tenant commits an incurable breach of the lease agreement and forfeits their right of possession.
The landlord’s remedy for an incurable breach is to serve notice on the tenant to quit the premises within three days after service. The tenant has no alternative but to vacate. [See RPI Form 577]
A declaration of forfeiture provision accompanying the three-day notice is unnecessary, and if included, is ineffective since the failure cannot be cured and the tenancy cannot be reinstated.
As is expected in a lease agreement, the tenant agrees not to destroy, damage, or remove any part of the premises or equipment, or permit or commit waste on the premises. This clause is called the waste provision. A waste provision exists in both the context of residential and commercial lease agreements and residential rental agreements. [See RPI Form 550 §6.10, 552 §7.4 and 551 §6.10]
Termination of periodic tenancies
A landlord enters into a lease agreement granting the tenant the right to use and occupy a single-family residential property. The lease agreement obligates the tenant to maintain the property’s landscaping as a condition of the right of possession granted.
The landlord receives complaints from surrounding property owners regarding the tenant’s behavior. A high number of visitors arrive at the property late at night producing excessive noise. On more than one occasion, the police have responded to calls from neighbors regarding the noise. Also, the city ordinance compliance department has given notice for the removal of disabled vehicles from the property.
On a drive-by inspection, the landlord discovers the landscaping and lawn have deteriorated since the tenant has not kept them watered.
The landlord decides to require the tenant to vacate the property although the tenant consistently pays the rent on time and several months remain on the lease. The tenant’s interference with their neighbors’ use and enjoyment of their property is a nuisance and the failure to maintain the leased premises is waste. Both a nuisance and waste are events automatically terminating the tenant’s right of possession.
The landlord prepares and serves the tenant with a 30-day notice to vacate to avoid stating their reasons for terminating the tenancy. [See RPI Form 569]
The tenant remains in occupancy of the premises after the 30-day notice expires and tenders the next rent payment on time. The landlord refuses to accept the rent payment and files an unlawful detainer (UD) action to evict the tenant.
Can the landlord, subject to an unexpired lease that the tenant has breached, evict the tenant from the premises with a 30-day notice to vacate?
No! When the tenant occupies the property under an unexpired lease, a notice to vacate does not terminate the tenant’s right to possession as required to maintain a UD action. Here, the landlord needed to use a three-day notice to quit. The tenancy was already terminated by statute due to the separate issues of nuisance and waste. Thus, the three-day notice to quit is merely required to evict in a UD action.
A residential or commercial notice to vacate is only effective when used by a landlord or tenant to terminate a periodic tenancy, such as a month-to-month tenancy or one created by a continuing occupancy after a lease expires.
Service of the notice
Statutory requirements are to be strictly followed when preparing and serving a three-day notice.
If the three-day notice is incorrectly or inaccurately prepared, or improperly served on the tenant, the notice is invalid. To later evict the tenant, a new three-day notice needs to be correctly and accurately prepared, and properly served on the tenant.
A proof of service form needs to be filled out and signed by the person serving the three-day notice. Without a proof of service, a UD action cannot be maintained. [See RPI Form 580]
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 are to be served separately.
If attached or otherwise combined, other than in time, they may be reasonably confused as one. The confusion would properly defeat any UD action based on the three-day notice.
Also, each notice is to be accompanied by its own separate proof of service to clarify their independent existence.
History of the term
“Waste” finds its root in the 12th century Anglo-French and Old North French term “wast,” meaning, “desolate region,” and the Latin term, “vastum,” meaning, “to leave, abandon, give out.”
It was first referenced in England to protect owners who were inheriting estates from those who had harmed the property while in possession. It was later adopted into California cases, codified into common law in 1872, supported by the case, Robinson v. Russell (1864), which set consequences for those whose interest were subject to the lien of a mortgage and had harmed the property, impairing the mortgage holder’s security. [Calif. Civil Code §2929]
