Unlawful Detainer Primer & Pitfalls

• Citation: Vol. 20 No. 1
• Publication year: 2014
• Author: By Keith Scheuer

Unlawful Detainer Primer & Pitfalls

By Keith Scheuer

Keith Scheuer specializes in business litigation, including commercial landlord-tenant and other real estate disputes, contract actions, partnership dissolutions and business torts. He received his undergraduate degree from Stanford University in 1971 and his law degree from the University of Southern California in 1978. He worked for national law firms before founding Scheuer & Gillett in 2006.

When the rent is due, landlords like to be paid. The typical lessor acts quickly to demand the money it's owed and, if necessary, evict the defaulting tenant and re-let the property. The freeloading tenant takes up space that should be, but isn't, generating income. Making matters worse, a delinquent tenant represents a bubbling cauldron of risks to the lessor. In addition to sinking further behind on his rent each month, the tenant might also default on obligations to third parties that could put the landlord in jeopardy (such as by failing to pay property taxes or insurance premiums); or ignore his responsibility to maintain and protect the property from deterioration, vermin or vandals; or, in an extreme case, pilfer equipment, wiring, fixtures and other items that belong to the landlord but are accessible to the tenant in possession.

The landlord's statutory method of extricating itself from this mess is an unlawful detainer action, which commences with service a three-day notice to pay rent or quit pursuant to C.C.P. § 1161(2). Because U.D. actions are summary and expedited procedures, courts require strict compliance with statutory notice requirements. Kwok v. Bergren, 130 Cal. App.3d 596, 599-600 (1982). Accordingly, the landlord must proceed with careful attention to detail to avoid procedural pitfalls in both drafting and serving the three-day notice. Irregularities may allow the tenant to remain in the property rent-free for additional weeks or months.

I. CONTENT OF THE THREE-DAY NOTICE

Among other things, the notice must specify the amount of delinquent rent that the tenant must pay to retain possession of the premises. Except as set forth below, a three-day notice that overstates that amount cannot support an unlawful detainer action. Levitz Furniture Company of the Pacific v. Wingtip Communications, 86 Cal.App.4th 1035, 1038 (2001). Even a trivial overstatement of the overdue rent may invalidate the notice. Nourafchan v. Miner, 169 Cal.App.3d 746, 763 (1985).

A statutory exception to this rule grants...