Q&A Regarding Proofing Your Notices

June 1, 2017

 

Q: fresh 60-Day Notice with new dates or can I issue a corrected notice and use the original dates?

 

A:  Your question doesn’t say if the Notice is to increase the rent or terminate the tenancy. But in either case, the answer is the same. In Oakland, San Francisco and Berkeley, you start over.

An eviction action in court is a special proceeding with special rules. The time frames for responding to an unlawful detainer complaint, for responding to discovery and for proceeding to trial are all expedited. In exchange for this speedy proceeding, the landlord is required to strictly comply with the unlawful detainer laws.

What this really means is that notices for things like nonpayment of rent, breach of a covenant and the like, must be perfect. No mistakes. Most judges in rent control jurisdictions strictly construe the unlawful detainer statutes -- especially when a strict construction will benefit the tenant.

But many judges have taken things too far. It is understandable how a mistake in calculating rent due would render the notice defective. But if you have a tenant’s name on the notice, what does it matter if the apartment number is incorrect? If the notice is properly served, it should be valid and enforceable. After all, it is the tenant and not the apartment number that is served with the Notice.

A colleague of mine just had a case thrown out of court because he misspelled “December” on a three day notice to pay rent or quit. He spelled it “Decmber”. The judge, not the tenant’s attorney, spotted the typo and claimed the notice was defective.  Bad decision!  After paying the other side’s legal fees, the landlord will have to start over by serving a new notice on the deadbeat tenant.

So long as we have judges with rent control mentalities, landlords and their attorneys will have to be extra careful with proof-reading all notices. And please, use that spellcheck button at the top of the screen!

 

​​Copyright © 2017 by Fried & Williams LLP. All Rights Reserved. The information in this article is general in nature and should not be considered legal advice. For any specific matter, please consult with an attorney.

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