Landlord/Tenant Law Legal Topics Real Property Law

8 Steps to Preparing a 3-Day Notice of Eviction

Preparing a 3-day notice to pay rent or quit? Use this checklist to be sure that you get the form and content of the notice right.

  1. ___ Put it in writing, but signing is optional. Under CCP §1161, the 3-day notice to quit must be in writing; oral notice isn’t enough. But there’s no express requirement in CCP §1161 that the 3-day notice be signed. If the notice is prepared and served by someone other than the landlord, such as an attorney or agent, the landlord may be required to prove that he or she authorized the attorney or agent to serve the notice.
  2. ___ Describe the premises. The landlord should identify the premises with some specificity in the notice, although CCP §1161 does not expressly require a description. The unlawful detainer complaint that follows the notice must “describe the premises with reasonable certainty.” CCP §1166(a)(3). Because CCP §1161 requires that the notice demand the tenant’s surrender of possession “of the property,” it follows that the property should be described in the notice. Any description that enables the tenant to identify the property (e.g., the street address or other location information) is probably enough.
  3. ___ Determine if termination for breach is justified. If the 3-day notice will be based on a breach of covenant in the lease other than nonpayment of rent, ascertain whether the covenant was express or implied, whether the breach was merely trivial or technical, and whether the breach was waived. Some local ordinances don’t allow eviction for a trivial breach.
  4. ___ Describe the breach and demand a cure or quit. A 3-day notice must specify the nature of the breach (e.g., nonpayment of rent or other breach of covenant) and if the breach is curable, demand that the tenant cure the breach within 3 days or relinquish possession. If the 3-day notice is based on the tenant’s nonpayment of rent, the notice must also specify the amount due and to whom and where to pay it. If the breach if not curable, the notice to quit need not be stated in the alternative.
  5. ___ Make an unequivocal demand for possession. A 3-day notice must clearly, positively, and unequivocally state the landlord’s intention to repossess the premises. Of course, a demand for possession isn’t rendered equivocal or unclear just because the notice is stated in the “alternative” form required by CCP §1161, i.e., a demand that the tenant either perform the covenant allegedly breached or vacate the premises. But a landlord may create uncertainty by his or her conduct and shouldn’t take any action that would be inconsistent with the intention to terminate the tenancy.
  6.  ___ State that the tenant has 3 days to pay rent or perform the covenant. The purpose of the 3-day notice period for a rectifiable breach of the lease is to give the tenant an opportunity to perform within that period; thus, it’s axiomatic that the notice should indicate clearly that the tenant has 3 days in which to rectify the breach.
  7. ___ Include an election of forfeiture. The landlord may obtain a provision in an unlawful detainer judgment declaring the lease forfeited only if the notice to quit indicated the landlord’s election to declare a forfeiture. A 3-day notice that merely demands that the tenant pay rent or surrender possession doesn’t sufficiently indicate the landlord’s intent to declare a forfeiture. But the notice doesn’t have to specifically use the word “forfeiture”; any language showing the landlord’s intent to treat the lease as terminated should suffice.
  8. ___ Include any extra required content under eviction control ordinances. Some rent control ordinances mandating good cause evictions require not only that a landlord intending to evict have a specified permissible cause to do so, but also state in the 3-day notice that the landlord has good cause to evict under one of the permitted reasons in the ordinance. See e.g., Berkeley Mun C §13.76.130.

For more detail on these steps and sample notice forms, turn to CEB’s California Evidence Defense Manual, chap 6, or California Landlord-Tenant Practice, chap 8 on terminating a tenancy. Also check out CEB’s On Demand program Residential Unlawful Detainers to learn from experienced professionals who have mastered the arcane technicalities and uncertainties of the eviction process on behalf of landlords and tenants.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2018. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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