COSTLY 3-DAY NOTICE MISTAKE
Your worst nightmare as a landlord runs something like this. You are losing rent due to a tenant’s non-payment. You spend a few hours looking online to figure out how to write a proper 3-day notice, and you actually get it right. You send it to the tenant, who still doesn’t pay.
Several days pass and you’ve paid $200 in filing fees for your unlawful detainer complaint, and possibly even attorney fees. The judge then informs you in front of the tenant or at court, that your service of the 3-day notice was defective and you are now blessed with the chance to start all over again, poorer and with even more rent lost.
PROPERLY SERVING THE 3-DAY NOTICE
There are three avenues to serve a notice to quit or pay rent:
- personal service on the tenant;
- substituted service and mailing; or
- “nail and mail”.
Done right, service of a 3-day notice is quick, easy and cheap. Done wrong and the nightmare begins.
Unlike litigation, where service must be done by a non-party, a landlord can perform service themselves. If the property is managed by a manager, then allowing the manager to serve the notice may reduce the tension with the tenant.
The landlord or manager should first attempt personal service on the tenant by delivering the 3-day notice directly to the tenant or in case of a sublet, the sub-tenant. If there are multiple tenants on the lease or rental agreement, then each named person on the lease should be appear on the notice.
If personal service can’t be had because you can’t find the tenant or he’s not at home, you may serve someone of “suitable age” on the property as substituted service. Unlike the eventual litigation, you do not have to repeatedly attempt personal service before you can use substituted service. You need only give the 3-day notice to anyone who appears to be of suitable age and then mail a copy of the notice to the tenant in his or her name (or both if multiple) to the tenant’s home or place of business.
Suitable age can be a tricky question. Case law has held that a 16 year old child can be found of suitable age. You may, however, be far safer to find someone who appears to be at least 18.
Finally, if all else is unavailable (no adults to take service and you cannot find the tenant at home or at his work), you may “nail and mail”. Service by posting, as it is properly called, requires that you affix the notice to the property; a nail is not really required. The posting is followed up by mailing the notice to the tenants residence. Service by posting does require the person serving the notice to declare that substituted service was unavailable and that the tenant could not be found at his home or residence.
PROOF OF SERVICE
The final requirement is for the server to complete a proof of service of the 3-day notice. The proof of service original can be given to the landlord for later filing if the tenant refuses to pay. You may find a proof of service form here for the server to complete.
Reprinted from www.jvslegal.com