CAA Article:
What About Those Three Day Notices to Pay Rent or Quit

For years I have always been sitting on the fence when it came to advising landlords whether the residential landlord could include more than technical rent in the three day notice to pay rent or quit (e.g. late charges, furniture rental, etc.). I had always been told by other counsel and owners that we couldn’t include late charges or furniture rental or utilities in the three day notice to pay. I had my own doubts about the rule, so I decided to take the bull by the horns and research the matter.

My wild ride starts with the case of Werner v. Sargeant (1953), 121 Cal.App.2d 833. This case has always been cited for the proposition that three day notices cannot include anything but rents. Werner concerned the landlord’s unlawful detainer based on his service of a notice to pay rent or quit in which he demanded $350.00 per month rent; $300.00 of which was for rent and $50.00 was for furniture rental. In response to a summary judgment motion, the landlord decided not to press the claim for furniture rental and proceeded solely on the matter of the actual rent. The court awarded the landlord judgment, finding that the rent was owing and the tenant had to move. On appeal the court held that since the notice asked for $350.00 rent but only $300.00 was argued as owing, the notice asked for more rent than was due and reversed the judgment sending the case back for trial.

"So far as the record is concerned, the notice to pay rent or quit did not correctly set forth the amount of rent due. Section 1161 of the Code of Civil Procedure requires that the three-day notice must state "the amount which is due." It is settled law that this section incorporates the common law view that in order to work a forfeiture of a lease for nonpayment of rent the landlord must demand the precise sum due, and that a demand in excess of the judgment will not support the judgment." (Werner, supra)

While the Werner case is incorrectly cited for the proposition that one can’t ask for anything other than rent in a three day notice to pay rent or quit, a reading of the case itself shows that any such citation would be misplaced.

The next case I reviewed was Canal-Randolph Anaheim, Inc., v. James B. Wilkoski (1978) 78 Cal App 3d 477; 144 Cal Rptr 474. In the Canal case, the landlord had brought an unlawful detainer based on the service of a three day notice to pay rent or quit which included interest and late charges. In holding that the notice was enforceable, the court stated as follows:

"Corporation contends that even if its obligation to pay rent was not suspended by section 3802, plaintiff's three-day notice to pay rent or quit was nevertheless defective in that it included in the amount claimed due $ 792.02 in interest and late charges. Although no authority is cited for the proposition, it is apparently the claim that only the amount of rent due may be included in the notice, and it is asserted that late charges and interest do not constitute rent.

Paragraph 2(a) of the Maher lease, entitled "Rental," sets forth the rent as $ 1,225 per month and thereafter provides: "If any rent or other payment under this Lease is not paid when due it shall bear interest at the rate of ten percent (10%) per annum until paid . . .. ." It is under this provision that the $ 792.02 is claimed to be due. Arguably, it can be classified as additional rent. In any event, however, we do not agree that a proper notice may not include anything other than technical rent. It is true that subdivision 2 of Code of Civil Procedure section 1161 relates to a default in the payment of rent. However, the subdivision refers to the "lease or agreement under which the property is held" and requires the notice state "the amount which is due." The language is not "the amount of rent which is due" or "the rent which is due." We think the statutory language is sufficiently broad to encompass any sums due under the lease or agreement under which the property is held." (Emphasis added.)

In the case of Valov v. Tank (1985) 168 Cal App 3d 867;

The appellate court also was faced with the argument that Werner v. Sargeant stood for the proposition that the notice to pay rent required a specific amount of rent to be set forth in the notice.

"Werner v. Sargeant (1953) 121 Cal.App.2d 833 [264 P.2d 217] and Johnson v. Sanches (1942) 56 Cal.App.2d 115 [132 P.2d 853] are cases frequently cited for the proposition that the notice is defective if it does not state the precise amount due. (E.g., 4 Miller & Starr, Current Law of Cal. {168 Cal. App. 3d 872} Real Estate (1977) § 27:114.) Those cases properly stand only for the rule that a notice which contains a demand for rent in excess of the amount provided in the lease is defective. Certainly, such a notice does not fulfill its purpose of giving the tenant an opportunity to pay the delinquent rent and retain possession." (Emphasis added).

It is not that the court’s object to the inclusion of other items in the notice to pay rent, it is the overstatement of what ever is due that causes problems.

Thus the court held that any money owing under the Lease may be included in a notice to pay rent or quit. This holding was reference later in the case of S. James Bevill v. Latif Zoura (1994) 27 Cal App 4th 694 . Bevill also involved an unlawful detainer action based on a three day notice to pay rent or quit. In Bevill the landlord included in the three day notice rent that was due more that 12 months prior to the service of the notice. As a side note, California law requires that to make use of the summary proceeding of the unlawful detainer statutes, the three day notice cannot include any rents that are more than one year old.

In Bevill, the court found that the landlord’s notice was defective because it included in the notice rent that fell due more than twelve months prior to the service of the notice. However, in discussing the nature of the notice and what could be included in the notice the court noted in footnote one as follows:

"Zoura [the tenant] also says the notice was defective because it requested nonrent in the form of common area maintenance charges. The argument is without merit. A three-day notice is not limited to rent per se; it may include "any sums due under the lease." ( Canal-Randolph Anaheim, Inc. v. Wilkoski (1978) 78 Cal.App.3d 477, 492 [144 Cal.Rptr. 474].) Because paragraph 7b of the parties' lease required Zoura to pay a portion of common area charges, Bevill's inclusion of these unpaid amounts in the three-day notice was proper."

I would like to point out a fairly recent case Levitz Furniture Company of the Pacific v. Wingtip Communications, Inc. (January 31, 2001), in which the court cited Bevill with approval for the proposition that in some situations, even stale rent (more than 12 months old) may be included in a three day notice if the other rents are estimated and (apparently) if the "stale" rent does not exceed twenty percent of the non state rent due, the total rents are not overstated.

"As noted, however, we do not see how section 1161.1 impacts the second provision of section 1161(2). The fact that a commercial landlord may estimate rent due does not necessarily mean that he or she is excused from serving a three-day notice within one year of the time that "the rent becomes due." However, we see no reason why a three-day notice that demands payment of rents due within one year of the notice is automatically invalidated because it also sets out (or demands) rent due more than a year before the notice. Such invalidation is not mandated by the policy underlying the second provision of section 1161(2), that is, preventing a landlord from using long overdue rent--but no rent unpaid within one year--to effect an eviction." Levitz.

An interesting situation came up in Cal-American Income Property Fund IV v. Ho (1984) 161 Cal App 3d 583. In Cal-American the court found that while the lease obligations to pay taxes and to pay common area maintenance charges (CAM) might involve the payment of money, the obligations were covenants to perform duties and thus not subject to the one year limitation on enforcement in an unlawful detainer even though the covenant required the payment of money. It raises an interesting situation. A landlord could conceivably serve a notice to pay rent, taxes and CAM. The rent would have to be less than a year old, but the obligation to pay the taxes and CAM could be over a year old, unless, of course, the lease defines such obligations as rent obligations. It could get very confusing.

In conclusion, I have not seen any other recently reported cases that state that a notice to pay rent or quit is invalid if it includes other amounts other than rent. I suspect that in the residential cases, some courts may read the statute more literally and a judge may not want claims for late charges included in the notice to pay, even if defined as additional rent; the same goes for claims for furniture rental, utilities or other "nonrent" sums due. Whether the residential landlord decides to leave nonrent claims out of the notice or include them shouldn’t but may depend on the local court position. At least the cases support a landlord’s right to include sums other than traditional rent in the notice to pay rent or quit.

William H. Leifer

William H. Leifer, Esq.
Gilmore Magness Leifer
10 River Park Place East, Suite 240 • Fresno, CA 93720-1534
Phone: (559) 448-9800, ext. 108 • Fax: (559) 448-9899

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