The Law Specifies Steps to Take to Evict Pesky Tenant

QUESTION: I have been renting a cottage to a tenant who has been an ongoing problem since Day One. He is late with his rent, messy, parks wherever he wants and so on. He has not paid rent this month, and so I wrote out a three-day notice to pay or quit and tacked it to his door.

After three days, I called him and said that if he didn’t pay up, I would start the eviction process. He said I couldn’t do that because the notice hadn’t been properly served. Is he correct?

ANSWER: Your tenant has done his homework, and you need to serve him with a new notice. There are several proper ways to serve a three-day notice.

Preferred service is to hand the notice to the tenant; if he won’t take it, drop it next to him. It’s good to have a witness to this service, although it is not required.

If you cannot find the tenant at home, you can also serve the notice at the tenant’s workplace.

If you can’t find your tenant either at home or at work, you can do what is known as “substitute service”: Leave a copy of the notice with an adult at the tenant’s home or workplace and mail another copy to the tenant’s home.

If you cannot find someone at either the rental or workplace, then you can do the “nail and mail” service, which involves posting the notice in a conspicuous place and also mailing a copy by first-class mail.

How to count the days? If the tenant is served personally, start counting the three days on the day after you serve the notice. If, on the other hand, the tenant is served by a method involving mail, it is possible that the tenant may be entitled to an additional five days after the notice was mailed before the three-day period can begin.

One appeals court has ruled that the service is not effective until the tenant actually receives the notice and that the three days can begin only after the notice is actually received.

You would be wise to check with an attorney familiar with the interpretation of the notice period in your local area, or take the conservative approach. If the third day falls on a weekend or holiday, skip on to the next business day. If the rent is still not paid on the fourth day, you may file in court for eviction.

Before you start the legal action, you might want to tell your tenant that you are serious and that if you do start the eviction--called an unlawful detainer--he may have a blot on his credit that will last for at least seven years.

Landlord’s Deduction Might Not Be Correct

Q: I had to break my lease six months early because of a family emergency. My landlord said I could find another tenant to use the rest of my lease.

After I found a suitable tenant, the property owner decided not to re-rent but to sell the property. Fortunately, the new tenant had not given a notice at her current complex, so there was no harm done there.

I just received my deposit refund and my landlord has deducted the two months’ rent from my deposit. Is this deduction allowed?

A: When a tenant breaks a lease, the tenant is responsible for rent until the unit is re-rented and for other costs the owner might incur, such as an ad.

Although signing a lease meant that you assumed financial responsibility for the full term of your lease, California Civil Code 1951.2 states that even when a tenant breaks a lease, a property owner must try to re-rent the property as soon as possible. This is to help reduce the financial obligation of the departing tenant.

Because your landlord made a business decision not to re-rent the property, there is a question as to whether you can be charged rent for the unused portion of your lease.

Talk with the owner about your feelings that the additional rent deduction is questionable. If she does not agree, contact your local housing mediation program for assistance. If a satisfactory solution still is not found, you always have the option of pursuing the matter in Small Claims Court.

Family Pet Hampers Search for Apartment

Q: I started to look for an apartment several weeks ago, but I have been rejected several times because my children have a dog. Aren’t there any laws to protect our right to have a family pet?

A: There is no broad legislation covering the right to have pets. Los Angeles prohibits landlords from refusing to rent to tenants with pets.

Other legislation favoring pets covers support animals needed by people with disabilities and pets owned by seniors residing in federally subsidized housing.

All other tenants must either find a landlord willing to accept pets or convince a landlord that the pet will not create damage or be a nuisance to neighbors.

Here are a few selling points to use in trying to convince a landlord to accept you and your dog:

* Letters or verbal references from your previous landlord and neighbors attesting to your dog’s good behavior.

* Literature describing the gentle nature of your breed (if that is the case).

* Proof of obedience training.

* An offer to pay a higher deposit, not to exceed the state limit of two months’ rent.

‘Deposit’ Needn’t Pay for Last Month’s Rent

Q: A tenant gave me a 30-day termination notice today, which happens to be the first of the month. When I asked him about this month’s rent, he said, “Take it out of my deposit.” The monthly rent and his security deposit are the same amount. He was very adamant, but I haven’t seen the interior of the apartment yet. Do I have to use his deposit for his last month’s rent?

A: You do if you labeled the deposit “last month’s rent.” In that case, the deposit can only be used as payment of the tenant’s last month’s rent. If you labeled the deposit “security” or “cleaning” or just “deposit,” you do not have to use it for last month’s rent.

In this case, you are entitled to use it as defined in the California Civil Code 1950.5. This civil code allows you to use the deposit after the tenant vacates for any necessary cleaning, repair of damages done by the tenant or his guests or rent owed.

However, it would not be wise to make any refund until you check the condition of the apartment after your tenant moves out. If the apartment is in good condition and you have no expenses to deduct from the deposit, you should return it to the tenant within 21 days, unless your agreement states a shorter period.

This column is prepared by Project Sentinel, a rental housing mediation service in Sunnyvale, Calif. Questions may be sent to 1055 Sunnyvale-Saratoga Road, Suite 3, Sunnyvale, CA 94087; they cannot be answered individually.

For housing discrimination questions, complaints or help, call the state Department of Fair Housing and Employment at (800) 233-3212 or the Fair Housing Council, Fair Housing Institute or Fair Housing Foundation office in your area:

Bellflower: (888) 777-4087.

Carson: (888) 777-4087.

El Monte: (626) 579-6868.

Hawthorne: (888) 777-4087.

Lancaster: (888) 777-4087.

Long Beach: (562) 901-0808.

Pasadena: (626) 791-0211.

Redondo Beach: (888) 777-4087.

San Fernando Valley: (818) 373-1185.

South-Central Los Angeles: (213) 295-3302.

Westside Los Angeles: (310) 474-1667.

Orange County: (714) 569-0828.

San Bernardino County: (909) 884-8056.

San Diego County: (619) 699-5888.

Ventura County: (805) 385-7288.