a collection of articles on tenant notices!
The content requirements for 3 day notices changed effective
1/1/02. See below for details.
The service requirements for notices to increase rent have
also changed. They may now only be served by personal service or by mail
(and if they are served by mail, add five days to the notice period). (Civil Code section 827.)
(This article is not legal advice; consult a lawyer for legal
REQUIREMENTS FOR THREE DAY NOTICES!
Susan Burnett Luten 2002
As you may have heard, the requirements for three-day
notices have changed. They are not
as onerous as some recent law firm
letters have portrayed, but they will require that you change your forms and
procedures. But first, a review of
Three-day notices to pay or quit are the notices
required prior to initiating any unlawful detainer proceeding (eviction) for
non-payment of rent. If the tenant
fails to pay before the expiration of the notice, the landlord can refuse to
accept later payment and seek a writ of possession (eviction).
In the past, there were only two required elements: an election of
forfeiture of the agreement if rent is not paid and that the amount required be
stated clearly and show how it was calculated.
A comment about the forfeiture requirement. If
there is a lease, the landlord may seek only to have the amount due paid, and
not to terminate the tenancy or obtain possession if it is not paid.
In other words the landlord might (although residential landlords
virtually never do) want to simply obtain a judgment for payment of the past due
rent, and keep the tenancy. This
would make sense in a poor rental market where the tenant has a fixed term
lease, particular for commercial properties.
But most residential landlords want to be paid or they want the tenant
I know of a well-respected law firm that does a high
volume of UDs. A not-so-careful
read of their three-day notice form shows that it fails to elect a forfeiture in
the event of non-payment. What does
that mean? If any tenant lawyer
bothered to read it, the tenant could wait until the day of trial, pay the rent,
and continue in his tenancy undisturbed. The
lesson? Read the form you decide to
use before you blithely complete and serve it, even if you have it done by a
lawyer! The time and money you save
will be your own!
In addition to the specification of forfeiture, you
must specify the amount of rent demanded, and how it was calculated.
The rent demanded cannot be for a period before the prior year.
So, what goes in a three-day notice to pay or quit
besides any unpaid rent for the past year?
NOTHING! Rent only, please.
All other sums due should be in another three day notice for compliance
with covenant or quit.
Can you include late charges in a three-day notice to
pay rent or quit? NO.
How about returned check fees? NO.
What about a replenishment of security deposit?
NO. What about amounts due
for damage to the property? NO.
Rent only and only rent. Everything
else can go in a three-day notice, just not a three-day notice to pay rent or
How do you calculate the rent due on the notice?
The rule is that the notice must state the rent due and how it was
calculated. The notice must be clear enough that the tenant can determine
what he is actually supposed to pay to avoid eviction.
Although this may seem an obvious statement, I have
seen three day notices scribbled on backs of envelopes, with circles and arrows
and inserts of the rental amount. I
have seen scratch-outs and write-overs that defy imagination. Such
a notice will not support a UD. In
other words, you can take that all the way to a trial, and the judge can and
very well may throw it out because it is not clear and unequivocal.
(And to be fair, the tenant cannot be required to pay when he can’t
figure out what you are demanding of him.)
The best method to draft the “rent due” portion a
viable three day notice to pay or quit is to set out a column for time periods
for which rent is unpaid, the amount that was due that period, the amount paid
that period, and the balance of unpaid rent, followed by a line with the totals
of each numeric column. That way,
the tenant can tell the total amount due, and exactly how it was calculated.
I have had quite of few clients who hired me to do an
eviction, and when they showed me the three day notice, I could not figure out
what rent was actually due. And, I
have had more clients than I can count who have asked me to do a notice, and
after careful review, have been unable to document what rent was actually owing.
I have had more than a few clients who were contacted
by the tenant after serving such a notice to be shown an error in the three-day
notice before the UD was filed.
The three-day notice is the fundamental document
required for proof and evidence at an unlawful detainer trial.
So take time with this and do it right – there is no sense moving past
the three-day notice stage unless the notice itself will support the unlawful
detainer. What’s the lesson?
Take care in drafting the notice, and triple check it before it is
Now for the new stuff. In the past, the notice merely had to contain the demand for
rent, and show the calculations. Now,
the notice must also state the name, address and telephone number of the person
to whom the overdue rent demanded must be paid, and the usual days and hours
that person is available to receive the payment. If the address does not allow for personal delivery, such as
a post office box, then the payment may be mailed, and it will be conclusively
presumed that the payment was made on the date posted if the tenant can show
proof of mailing. The notice can
also provide instructions and information for electronic transfers, and if prior
rent payments have been made in that way, whether such transfer will satisfy the
requirements of the notice.
Is it that simple?
It’s never that simple! As
a practical matter, many landlords have rent delivered to resident managers, who
may or may not be available on a regular basis, and may or may not have a means
to deposit payments into a drop box. Several
clients are concerned about the security aspects of leaving drop boxes with rent
payments. Those problems will have
to be solved by individual landlords.
Many landlords do not have a person or place where
rent can be delivered, so mailing seems like a handy option.
What the legislature is not telling you is that other law, entirely
unrelated to this code section, provides that if the recipient of funds
specifies mail delivery, that person takes the entire risk of receipt.
I.e., if the rent payment is lost in the mail, the landlord loses.
If the rent payment is delayed for months, the landlord loses.
And as a practical matter, the landlord will not know for many days
whether in fact the rent was timely paid consistent with the demand made in the
notice. I predict many landlords
will commence UDs only to be told after the expense and time has been spent that
the rent was mailed.
Many landlords enthusiastically endorse electronic
transfers. From the lawyer’s
point of view they can be problematic. Again,
one is never quite sure when the rent has been paid. More importantly, the tenant can pay the rent after the
expiration of the notice – up to and including during a trial! – and the
landlord is then accused of having accepted the late-paid rent, and forfeiting
any right to possession.
The new law also requires that all subtenants be
served, even if they are not “official”.
In this day and age, landlords should be able to do
their own three-day notices. Most
of the time – almost all of the time – we as lawyers must redo the notice
either because it was improperly drafted or improperly served.
Take time to do it right, and consult a lawyer if you have questions.
Call our office for a brief telephone consultation.
Remember, the notice is the foundation for the UD – if anything about
it is wrong, the UD will fail. It
is worth a small investment of time and money to get it right.
2001 CHANGE IN 30 DAY NOTICES
TO INCREASE RENT!
(c) Susan Burnett Luten 2000
This article is not legal advice.
Always consult a lawyer for legal advice.
This month’s topic is notices of
change of terms of tenancy. Thanks
to the tenant lobby in Sacramento, changes are afoot. There have been a lot of challenges to landlord rights, those
few that are left, and we survived most of them.
But not all.
The tenants usually seem to be
fairly complacent during down times, when rents are low and vacancy rates are
high. If one rental unit does not
work out, there are others, usually at reasonable rents. If a landlord makes a few too many demands, there is always
somewhere else to go without too much disruption. (Unfortunately, as faithful readers know from past columns,
this also leads to complacency by landlords, whose procedures become sloppy,
leading to potential liability -- but that’s another column!)
But when vacancy rates are low,
and low rents hard to find, tenants become more active locally, and in
Sacramento. That explains the
recent flurry of rent control proposals locally, and the push in Sacramento to
change how the industry works. It
also explains the housing shortage, and the skyrocketing rents. This situation, and the increasing tensions between landlords
and tenants, and elected officials and property owners, will not change until
more housing is available. So far,
Sacramento has no solution for that problem, so look fore continued erosion of
But one of the changes that
squeaked through was passed and will become law. It requires that landlords give 60 days’ notice when
increasing the rent more than 10%.
This change is a revolutionary
modification of law that is well settled in the minds of landlords throughout
the state. It will take some
discipline to adjust to it. Begin
now to train yourself to think in terms of 30 and 60 day notices, not just 30
Until this new law, a 30-day
notice could be given to change any term of a month-to-month tenancy, including
the rent level. All the landlord
had to do was prepare a notice, state the new term, or attach a new rental
agreement, and properly serve it on the tenant.
The new term was effective 30 days after service.
The rationale was that if the tenant stayed in the premises beyond the 30
days notice, he accepted the terms. If
he chose not to accept them, he vacated.
These notices can be used for
virtually any change in terms. Most
commonly they are used to increase the rent.
But, they can also be used to eliminate an attorney’s fees provision
from a rental agreement (which all landlords should do), change the date for
payment of rent, change house rules, and the like. In fact, many landlords ask how they can get their
month-to-month tenants to sign a new lease – no need.
Simply attach a new rental agreement to a 30-day notice, serve it, and it
becomes effective 30 days after service. (See
other articles at www.luten.com for
more on these topics.)
Now, effective January 1, 2001, we
will have two types of “30 day notices” – 60 day notices and 30 day
notices. In other words, if you
want to change any term of tenancy other than rent, or if you want to increase
the rent by 10% or less, then you can give a 30-day notice. If you want to increase the rent by more than 10%, you must
give a 30-day notice.
The new law requires that if more
than one increase is given in a year, that the 60-day notice must be given for
that portion that takes the increase over 10%.
So for example, if the landlord gives a notice for a 9% increase on
January 1, 2001, that notice can be for 30 days. If he then notices another increase of 5%, that notice
requires 60 days notice.
Note, however, that there may be
additional angles for argument by tenant lawyers about what that 10% really is.
For example, suppose that the landlord changes the terms of tenancy to
require that the tenant pay utilities in the future.
That is, arguably, an increase in rent.
It may be 10% or more, or less. Couple
that with a 5% increase and rent, and it may very well be over 10%. So, landlords must be careful about what the changes in terms
of tenancy are, and how they are noticed.
So what about the landlord in a
rent controlled jurisdiction such as Oakland who is allowed to increase the
rents to cover capital improvement increases and increased debt service?
The same applies. But note that the tenant has only 30 days in which to
petition the board if he wishes to challenge the increase. (Look for that to change in a heartbeat, once the Oakland
board learns of this new state law. Check
your local board if your property is in a rent controlled jurisdiction.)
What is the implication of failing
to serve the 60-day notice? First
of all, the tenant is not obligated to pay the increase. I often hear from landlords that their tenants did not pay
the increase after a 30-day notice. Upon
careful examination, it turns out that either the notice was not valid, or it
was not validly served. Now, the
tenant may not be paying for some other reason, but the impact on the landlord
is immediate: he cannot maintain an unlawful detainer for non-payment of the
To anticipate the question, if the
landlord gives the notice in the form of a 30-day notice, when it should have
been 60, will it become effective in an additional 30 days?
No. While there are no
strict requirements for the language of a 30-day notice, it must be clear and
unequivocal about the effective time or date.
For example, most say, “effective 30 days from the date of this
notice…” If the notice says
that, and it should have been 60, it is simply invalid and ineffective – and
Now that we know what goes into
the notice, how is it served? A 30
or 60 day notice can be served in all the ways a 3-day notice can be served –
in person, substituted service, posted and mailed. It can also be served by certified mail; returned receipt is
advisable because you can show actual receipt.
If the notice is either posted and mailed or mailed certified, you do not
have to add five days for mailing, as is required in various court procedures.
That is why it is advisable to not
state a specific date in the notice for its effective date.
If service is delayed for some reason, and the notice gives a date
certain, then there may not be a full 30 or 60 days before the effective date.
Finally, you can give a 30 or 60
day notice at any time during the month, not just on the first.
When giving a rent increase notice, the new rate becomes effective either
30 or 60 days after service, which may be the middle of them month.
The landlord then has the choice of specifying whether it becomes
effective on the first of the subsequent month, or whether the landlord wishes
to have the new rent rate paid immediately.
So, for example, if the notice becomes effective on the 15th of the
month, and rent is due on the first, the landlord may request payment on the 15th
of the per diem increased for the remainder of that month.
An explanatory cover letter should suffice.
So be forewarned and forearmed,
and ready to meet the New Year with the proper notices and procedures.
Next month: my annual New
Year’s resolutions for landlords!
Here are three articles about 3 and 30 day notices:
(These articles are not legal advice. They are based on California Law. Always consult a lawyer for legal advice.)
The Three and Thirty Day Notices
© 1998 Susan Burnett Luten
Thirty day notices are given by the tenant to terminate his tenancy, or by the landlord to terminate the tenant’s tenancy. No
reason is required for either.
Thirty day notices can be given at any time. There are no specific requirements for the content of the notice (unless the property is
located in a rent controlled jurisdiction – check your local ordinance). The notice need only state unequivocally that the tenancy at the particular address is terminated in thirty days. But even this is often problematic. Many landlords write a nice- folksy letter to the tenant, probably to soften the blow of termination. They then write something rather vague like "So, we would appreciate it if you could be out by October 1, 1998.) This is not a thirty day notice. Remember: unequivocal, unambiguous.
And speaking of nice, folksy letters, the less said about the termination, the better. Doubtless whatever you say will be used against
you, so just write the bare fact of termination, and let it go. Tenants commonly tell their landlords that the landlords are required to give a reason. Not true. You will need to explain to a judge at an eviction trial what your reason was, but you do not have to give a reason on the notice itself. (I should also point out that one of the most popular landlord guides which I recommend to my clients has a form which contains a place to state the reason for termination. Leave it blank.)
So when during the month can you give a thirty day notice? Anytime. But be careful about two little potential problems. First, be careful what rent you collect after you have served the notice. If you give the notice in them middle of the month, and collect the full rent the following first of he month, you have just rescinded the notice. The better approach is to serve the notice with a short letter stating the pro-rated rent that will be due on the first. For example, "since you will be leaving by October 18, 1998, please pay rent of $___ (per diem rent for eighteen days) on the first of the month.
If the tenant pays the full rent, either give it all back and ask for a replacement check (the best answer), or cash the check, and quickly refund the difference.
What if you have a security deposit including the last month’s rent? If the last month’s rent has been specifically collected instead of or in addition to a specific sum for security deposit, take that into account. Don’t accept any rent, merely advise the tenant with the notice that you are applying his last month’s rent, and show how you calculate it. If you give the notice mid-month, you
will probably have to refund some rent to the tenant from that last month’s rent deposit.
What if the tenant gives you notice then changes his mind? Be careful what rent you accept, and be careful if there is a last month’s deposit. Just remember that any acceptance of rent that exceeds the time given in the notice effectively rescinds the notice.
Also be careful about extending the noticed period. A client called recently to ask about how long a thirty day notice could be
extended. The tenant gave notice in May, then asked for a couple weeks more. The landlord agreed, and called me in frustration in August. What’s the rule? The landlord had been accepting rent the while two and half months after the termination date. That acceptance rescinded the notice.
How does a landlord serve the thirty day notice? The landlord can serve it himself, preferably in person. if not, it can be served in
any of the ways a three-day notice is served – substitute service and by posting and mailing. Alternatively, a thirty day notice – and only a thirty day notice – can be served by certified mail. Any service that involves mailing extends the thirty day period by five days.
Consider whether you want to serve the notice yourself, or hire a process server. I recently had a situation where a landlord served the thirty-day notice, but did so improperly. We had to start all over again when we discovered the error. Another thirty days lost.
Her error? She served only on notice, even though there were two named tenants. She should have served separate copies on each
I won’t cover the intricacies of proofs of service in this column, but be sure to have whoever serves the notice fill out a proof of service form when service has been made. You will get all of your facts straight while they are fresh in your mind. (This is another reason to have a registered process server: they not only know how to serve such documents, but know how to properly fill out the forms. And they will be at your side in court to testify when the tenant testifies that he never saw the notice.)
Three day notices are given by the landlord only, for the purpose of compelling the tenant to comply with some aspect of his rental agreement, or even state law, before a termination of tenancy. Literally, the notice is entitled " Three day Notice to Pay Or Quit" or "three day notice to perform covenant or quit." In a very few instances, when the breach is clearly non-curable, the tenant may be given a three day notice to quit.
Let’s take a moment to focus on that last type of notice. If a tenant does something which cannot be fixed, then the landlord is entitled to terminate the tenancy on three days’ notice. However, if that breach is truly curable, and the tenant was not given an opportunity to cure, then the court will likely throw out the notice, and the landlord will have to start all over again, if he can.
For example, suppose the tenant gets a dog in violation of his lease. We suspect that he will not get rid of the dog, and will have to be evicted. But his breach is curable – he can remove the dog from the premises, and avoid termination of his
So back to the more common types of three day notices.
The landlord is required to state in the three day notice the tenant’s name, the address of the premises, and the reason for the notice. (Again, to give the tenant fair warning of why the agreement will be forfeited if he doesn’t cure the breach.) It must also say what the remedy is – that the landlord will seek possession of the unit, forfeiture of the rental agreement, rental damages and unpaid rent. The notice must tell the tenant precisely what he must do to correct the breach. (E.g., deliver rent to Mr. Landlord at Landlord’s address, within three days of service of this notice.")
Three day notices can be given at any time. Be careful that you do not give a three- day notice to pay rent or quit during a grace period. It will be ineffective if you do.
If the notice is for unpaid rent, then the notice must specify the amount of the rent owed, and how it was calculated. I suggest that landlords make a table listing the months rent was due, what was paid, and what was owed for that month, then a running balance to show how the total was accumulated. Many people come to me with three day notices they served themselves, only to find out that they did not careful calculate the rent, and we must start all over.
If the property is in a rent controlled jurisdiction, local ordinance may require that particular language be included in the notice. Check your local rent control ordinance.
So what happens if the tenant offers to pay the rent during the three day period? You must accept it. Remember, you served a
notice to pay or quit. If they choose to pay, you must accept it.
But, just as commonly, what if the tenant pays some, but not all of the rent after receiving the notice? It’s up to you. You can accept it, and serve a new three day notice for the remainder, or reject the payment since it is not full payment.
How long must you accept the rent if offered by the tenant? For the full three days after service of the notice, plus the next
business day of the third day was a holiday or weekend. But be careful – personal service results in a three day period for the three day notice. Posting and mailing results in EIGHT days to perform or quit three days for the notice, plus the extra five days for mailing.
What if there is a security deposit available? Should you use it to offset the unpaid rent? It is not required that you do so, and it is actually a very bad idea. You still face the problem of the condition of the unit and other potential breaches if the tenant leaves. It may also be difficult to get the deposit replenished if the tenant stays. The best idea? Hold the deposit to cure any final
breaches at the end of the tenancy; insist that the tenant pay or quit when you serve a notice.
B very careful about rescinding the notice, but making any agreement with the tenant to give more time or make some other
How does a landlord serve the three day notice? The landlord can serve it himself, preferably in person. if not, it can be served by substitute service and by posting and mailing. Any service that involves mailing extends the thirty day period by five days.
A three day notice is much more likely to result in an unlawful detainer lawsuit that a thirty day notice, so it is much more
important that the service be done properly. Consider hiring a process server. You don’t wean t to end up at trial and have the whole case thrown out because the judge doesn’t’ believe your service was valid. Registered process servers not only know how to serve such documents, but know how to properly fill out the forms. And they will be at your side in court to testify when the tenant testifies that he never saw the notice.
The ABC's of Three Day Notices
© 1997 Susan Burnett Luten
So, let’s go back to basics. Three day notices to pay or quit. When to use them, how to draft them.
This time of year there seem to be a lot of people running short on rent money. I see a lot of landlords who have tenants with
chronic rent-paying problems that seem to get worse in the late summer. I don’t know if it is time for vacations – which we all know are more important than paying the rent, or whether it is expenses of getting ready for the school year. In any event,
non-payment seems to increase just about now.
The first rule of thumb concerning non-payment is to be business-like. Sometimes that means making accommodations for people who have a specific, short-term problem, such as illness or a job termination. But most of the time it means
requiring rent to be paid in full, and on time, every month.
If your tenant has recurring problems paying the rent, it will most likely get worse. The payment that is a week late will become two weeks late. Then the tenant will skip a whole month, and it becomes difficult for the landlord to keep accurate records about what is being offered, and what is being accepted. The best way to resolve a short-term shortfall is to require rent to be paid
twice a month, so that the tenant never gets a full month behind.
But if the rent becomes a full month in arrears, pay attention. If you decide to continue the tenancy, be sure your records reflect that the payment received in September is actually August rent. if you give receipts, make sure they say so. Why? In an unlawful detainer, you can only claim rent unpaid within the year prior to the notice. I have seen many landlords who thought a payment problem was behind them, only to have a serious problem recur, and a rent payment from the previous year yet unpaid. An unlawful detainer is probably not able to include a judgment for that rent, and a notice for that rent is probably not valid. (You can, of course, seek it in a small claims action for up to two years on an oral rental agreement, four years on a written agreement.) if you can show that you kept the old debt current, you may have a chance of getting it in a UD, but the better practice is simply to require it paid before the end of a year.
So, what goes in a three day notice to pay or quit besides any unpaid rent for the past year? NOTHING! Rent only, please. All other
sums due should be in another three day notice for compliance with covenant or quit.
Can you include late charges in a three day notice to pay rent or quit? NO. How about returned check fees? NO. What about a replenishment of security deposit? NO. What about amounts due for damage to the property ? NO. Rent only and only rent.
Everything else can go in a three day notice, just not a three day notice to pay rent or quit.
How do you calculate the rent due on the notice? The rule is that the notice must state the rent due and how it was calculated. The notice must be clear enough that the tenant can determine what he is actually supposed to pay to avoid eviction.
Although this may seem an obvious statement, I have seen three day notices scribbled on backs of envelopes, with circles and arrows and inserts of the rental amount. I have seen scratch-outs and
write-overs that defy imagination. Such a notice will not support a UD.
The best method to draft the "rent due" portion a viable three day notice to pay or quit is to set out a column for time periods for which rent is unpaid, the amount that was due that period, the amount paid that period, and the balance of unpaid rent, followed by a line with the totals of each numeric column. That way, the tenant can tell the total amount due, and exactly how it was calculated.
I have had more than a few clients who were contacted by the tenant after serving such a notice to be shown an error in the three day notice before the UD was filed. What’s the lesson? Take care in drafting the notice, and triple check it before it is served.
So, three day notices to pay rent or quit: rent only, no extraneous charges. Set out the rent unpaid step by step in the notice. Put other charges in separate three day notices for breached covenants. Double check and recheck the notice before you serve it, and before you proceed to eviction.
THIRTY DAY NOTICES CAN REDUCE EVICTION RISKS
(c) Susan Burnett Luten 2000
Over the past 18 months or so, a change has occurred in the approach tenants take to opposing evictions resulting from 30-day notices. They are electing to fight back in court more often, and when they fight, they are fighting harder and longer. Realizing that rents are increasing sharply, and rental housing is at a premium, the tenant reaction to termination notices is
understandable: the hot rental housing market makes relocation much tougher. There are fewer units available in a given area, and the rent is invariably higher. (This is also the inevitable result of rent controls – virtually anywhere a tenant looks for new housing, the rents will be much higher than what he is paying now. In Oakland, Berkeley, and San Francisco those rents can be three times what the tenant is used to paying – or even more.) It simply makes sense for tenants to oppose notices more often, and more aggressively.
So in general the tenants’ responses to 30 day notices (as well as 3 day notices) are much more combative. There is much
more to fight about, and more money at stake, making the expense of legal help more palatable. The notion that a tenant can require a jury trial even without a meritorious defense means that every landlord who terminates a tenancy could face a legal bill of $25,000 or more raises the stakes even higher.
Given that atmosphere, it is even more important than ever to make sure that any termination is properly done, for articulatable legal reasons, and that there are a minimum of defenses that can be raised. Faithful readers know that the best way for landlords to protect themselves is to be prepared with good procedures, carefully kept forms, and scrupulous policies, especially those that come into play when a tenancy is terminated. Key among those factors is the absence of an attorneys’ fees provision in the rental agreement, which has been repeated often enough in this column to wear a permanent line of type in the paper!
Assuming the landlord has done all of those things, the next step is to consider whether the termination is for a legal reason, and to what extent the tenant will have the opportunity to claim it is for an illegal reason. The easiest defense for a tenant to assert is retaliation: If there has been any exercise of the tenant’s legal rights within the 180 days prior to the service of the notice, the termination is presumptively illegal. (Civil Code section 1942.5.) That means that entering the courtroom on the day of trial, it is presumed the landlord’s termination is illegal unless he can prove otherwise.
But there is an exception.
Recall that according to property management books a landlord is not required to state the reason for the termination in a
30-day notice. (Properties in rent-controlled jurisdictions with just cause eviction limitations are subject to other requirements; check with a local attorney for guidance and advice.) Most landlords do not, and until recently, the generally advice from experienced landlord attorneys was that landlords should not give a reason. Most tenants did not oppose a termination based on a 30-day notice, so it merely caused more problems than it solved.
Recent experience suggests that landlords should state the reason for the termination, as long as it is a legal reason, and it is the real reason. If a reason is stated in the notice, there is no presumption of retaliation. (Civil Code section 1942.5(e).) If a tenant claims that the real reason is retaliation, then the landlord must prove that the actual reason is the one stated in the notice.
What does this mean in real terms? Suppose the landlord wants to terminate the tenancy because his child wants to move into the unit. If the notice gives no reason, the tenant assumes the reason is retaliation (or at least it is an easy defense) because the tenant
complained about a leaky faucet four months before. The landlord walks into court with a presumption against him that the reason is retaliation. The jury is instructed that the termination is retaliatory unless the jury finds otherwise.
But if the notice states the reason, the jury is simply told that the landlord asserts one thing, and the tenant another, and the jury must decide.
That is the benefit of giving a notice with a reason. But there are risks to giving a reason in the notice.
First, the reason must be a legal reason. Even a little sloppy thinking can result in setting forth a reason that could be
interpreted as illegal. That will make the situation much worse than no reason at all. Most landlords have difficulty stating a reason, which is one reason why the common wisdom has been to not give reasons in the notice.
Second, the reason must make sense. Many landlords say they want to terminate for some reason that has nothing to do with the unit or the tenancy. For example, if the landlord says he wants to terminate because he is going on vacation (which some landlords actually say to their lawyers), that makes no sense. If it makes no sense, then the tenant will assume there is an illegal reason that has not been stated.
Third, whatever is stated as the intention of the landlord better actually happen, or there will be big liability for the landlord. If the notice says the child is moving in, child better move in. The failure of the child to move in will imply that the termination was fraudulent, and the only thing possibly worse than a retaliatory termination is a fraudulent one.
And note that liability for a fraudulent termination survives the termination. In other words, if a landlord terminates because his child is moving in, and the tenant leaves without an unlawful detainer, and it turns out the child does not move in, the tenant can sue for fraud and other claims years later. And given the very pricey judgments for these claims, the tenants will check. So be sure that the intention is real, and that it does actually occur.
A sample 30-day notice of termination showing a sample reason is located in our "Sample Forms" page. But given these
hazards, it is always worthwhile to consult an attorney before drafting a 30-day notice. In most cases, having the attorney draft the notice is a small expense to pay for avoiding difficulties later on. Those few dollars are cheap insurance against the cost of a bad notice. Consulting the attorney ahead of time also assures that the attorney is prepared to go forward with your eviction should the tenant not vacate as noticed. It also means that you will not be in a position of serving a bad notice, waiting 30 days, consulting with counsel who says either the notice or service was bad, and starting all over again. And, remember, there can be landlord liability merely for serving an erroneous notice!