Q: I have a friend who has a tenant who refuses to pay the rent. The tenant offered to move if my friend gave him $7,000. My friend, in desperation, agreed, but the tenant changed his mind. My friend has consulted lawyers but has been told tenants' rights are so strong that there is nothing he can do. Any advice?
Landlords attorney James McKinley replies: Your friend has been given bad advice. A landlord should never agree to pay a tenant to vacate the property. This agreement could have been binding on your friend, which would have required him to pay the tenant to vacate; in addition, your friend would have waived any claim for rent.
However, because the tenant changed his mind, and apparently nothing was put in writing, it appears that no agreement was reached. Your friend should immediately serve a three-day notice to pay rent or quit for all rent currently owed. Make sure your friend is asking only for rent, and not late charges. Also, please remember, all three-day notices to pay rent or quit are required to include the landlord's name, address for delivery of rent, office hours for personal delivery of rent, and phone number.
An attorney familiar with landlord/tenant law can provide a proper notice form, or prepare the notice for your friend. Your friend must attempt to personally deliver the notice to his tenant, but if the tenant is not home, he can serve the notice by taping it to the door and mailing the notice using first class mail to the tenant.
After the three-day notice to pay rent or quit is served, the tenant has three days to pay. Start counting the days from the day after the notice is served. If the third day falls on a weekend or court holiday, the tenant will have until the next business day to pay the rent. If the tenant does not pay within the three-day notice period, the next step is to file an unlawful detainer action. The unlawful detainer, or eviction, action is the fastest way for a landlord to recover possession of real property. Your friend should definitely retain an attorney experienced in unlawful detainers to handle this matter.
Tenants attorney Steven Kellman replies: This is a great example of how myths are perpetuated and are then acted upon to great damage. The idea that tenants have too many rights and cannot be evicted is simply untrue.
The truth is that both landlords and tenants have rights that can be lost by improper action, lack of action or misinformation. Here, the lack of proper action could have cost your friend plenty.
James is right when he says that nonpayment of rent, even in rent-controlled areas, could bring about a relatively swift eviction. The complexity of the notice requirements James shares with us is a reminder that a landlord should seek legal advice before commencing legal action. Also, a landlord should get advice before making significant agreements with a tenant.
Many tenants also act under misunderstandings of the law and get in trouble. For example, this tenant believed in the myth that he cannot be easily evicted and has demanded a lot of money to move. A knowledgeable landlord would have simply handed the case to an attorney and the eviction proceedings would have begun. In this case, the combination of a landlord and a tenant who both did not know their rights and duties under the law sent their case spinning into strange lands. Fortunately, it appears that no agreement was finalized so an eviction could commence. The authors are property manager Robert Griswold and attorneys Steven R. Kellman, director of the Tenants' Legal Center, and James McKinley, of Moffitt & Associates, a law firm that represents landlords. Send questions to Rental Roundtable, 5703 Oberlin Drive, Suite 300, San Diego, CA 92121-1743, or by e-mail to email@example.com.