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Time to Get Down to Business: Change in Eviction Notice Requirements Now in Effect

September 4 2019

 

By Mark E. Ellinghouse & Josh H. Escovedo

 

As you may know, late last year, California Governor Jerry Brown signed Assembly Bill 2343, which changes the long-standing notice requirements that apply before a landlord can pursue an unlawful detainer action against a tenant who has violated its lease. The new requirements are now effective, applying to all leases whether for residential or commercial property. Landlords and tenants should pay attention to these subtle, yet significant, changes, as they may affect the validity of an eviction should the need for such enforcement action arise.

Before enforcing a breach of lease against a tenant, landlords generally must provide notice to the tenant and an opportunity for that tenant to cure the claimed breach. Historically, the minimum notice period required was three calendar days. This time period could be expanded by contract, but could not be shortened. Because the requirement was based on calendar days, this meant that if a notice was, for example, served on a Friday, the notice period would expire the following Monday, leaving the tenant with a single business day to address the allegations in the notice.

Under the amended Code of Civil Procedure (CCP) sections 1161(2) and (3), now in effect, the notice “days” have been revised to exclude Saturdays, Sundays, and judicial holidays. This will have the effect of extending a tenant’s time to respond to a 3-day notice if a weekend or holiday falls within the response period. For example, if a 3-day notice to cure is served on a Friday, the tenant will have, at least, until Wednesday of the following week (or later if a holiday falls within the cure period). This change in the law cannot be modified by contract.

While these new requirements apply to all leases, they don’t necessarily apply to all breaches of a lease. 3-day notices for failure to pay rent (CCP § 1161(2)) or comply with lease terms (CCP § 1161(3)) are the primary targets of the legislation, and are included. However, notices for failure to vacate leased premises following expiration of a lease (CCP § 1161(1)), or for the commission of nuisance, waste, or an unauthorized assignment (CCP § 1161(4)) are excluded. These latter exclusions make sense, as they often involve breaches that cannot be cured or represent fundamental threats to a landlord’s property for which an extension of time is improper.

The bill also makes changes to the response times in unlawful detainer proceedings. Instead of the traditional 5-calendar-day period to respond to a complaint for unlawful detainer, defendants now receive the same exclusion of weekends and holidays discussed above. This represents yet another delay in a landlord’s ability to recover possession of its property where a tenant fails to pay its rent, or otherwise comply with the terms of its lease.

Both landlords and tenants would be well served to keep this change in the law in mind when reviewing a statutory eviction notice. Landlords will need to ensure they are providing sufficient time for a tenant to respond and do not act prematurely before filing a complaint for unlawful detainer. Similarly, tenants should feel less time pressure to respond when a notice period includes a weekend or holiday. Failure to comply with the new prescribed periods could result in further delays, lost profits, and unnecessary attorneys’ fees and costs.

Of course, for all of your lease interpretation and enforcement needs, please feel free to contact us.