WHEN CAN A 3-DAY NOTICE BE SERVED
The 3-day notice can be served as soon as the
rent is past due. In other words wait until the tenant is late with the rent. If you have a written lease, you should consult with your lease to determine when
he rent is due. For instance if your lease states that the rent is due on or
before the first of the month and a late fee is charged after the fifth of the month, you do not necessarily need to wait
until the fifth and can serve a 3-day notice on the second as the rent was due on the first.
WHAT AMOUNTS CAN BE CLAIMED ON A 3-DAY NOTICE
You can only claim rent amounts that are past
due. Do not include any amounts that are not “rent”, such as utilities,
security deposits, late fees or other costs. If you have a lease in effect with
your tenant and any of the preceding items are defined as rent in the lease then you may include it in the amount due in the
3-day notice. If you claim items other than rent in your 3-day notice or rent
that is not due (future rent) the eviction case can be dismissed. Example: If
your lease contains language that states that as additional rent the tenant shall pay a late fee if the rent is paid late
then the late fee may be included in the 3-day notice.
HOW TO DELIVER THE 3-DAY NOTICE
The 3-day notice should be personally delivered
to the tenant. If the tenant is not at the leased premises the 3-day notice may
be posted in a conspicuous place at the leased premises, i.e., tape it to the
front door. You can also mail the 3-day notice to the tenant. However, please note that you must add 5 days each way for mail time.
If you mail the 3-day notice add 5 days for the notice to be delivered via the mail to the tenant and 5 days for the
tenants response to be delivered via the mail to you. In other words if you use
the mail to deliver the 3-day notice it actually becomes a 13 day notice.
There are some circumstances where delivering
the notice via the mail is the only option or where the tenant will always be allowed to use the mail to respond to a 3-day
notice. This typically occurs when the landlord uses a P.O. Box or an out-of-town
address for the tenant to pay rent.
TENANT PAYMENTS DURING THE 3-DAY NOTICE PERIOD
If the tenant attempts to tender payment for the
full amount due as per your 3-day notice you must accept the payment and can’t evict the tenant for non-payment. If the tenant attempts to tender a partial payment you do not have to accept it. Some landlords may decide to accept partial payments or a payment plan for the arrears. This is entirely up to the landlord. If
the landlord accepts a partial payment the 3-day notice has been partially complied with and you can’t evict the tenant
for non-payment of rent. You may technically be able to evict the tenant for
non-payment of rent if you serve the tenant with a new 3-day notice with a revised amount.
As far as accepting a tender of full payment goes, you must accept the payment in the usual manner that it is paid. You can only insist on certified funds or cash if the tenant has given you bounced
checks in the past. If you accept cash from tenants keep a receipt book and provide
the tenant with a receipt for cash.
3-DAY NOTICE FLAWS
Courts have struggled and differ on how to treat
defects in 3-day notices. However, the end result is that many times cases are
dismissed due to the defect. Among the consequences a dismissal has for the landlord
is that a new 3-day notice must be served and the case started from scratch. Another
more bleak result is that the landlord may be liable to the tenant for legal fees and costs associated with defending the