While evictions for failure to pay rent are on hold during the Coronavirus (COVID-19) pandemic, unlawful detainers are still being heard in California courts when “necessary to protect public health and safety.”
This rule under Rules of Court, Appendix 1, Emergency Rules related to COVID-19, Emergency Rule 1(b) (Unlawful Detainers) became effective in March 2020. That rule provides that: “A court may not issue a summons on a complaint for unlawful detainer unless the court finds, in its discretion and on the record, that the action is necessary to protect public health and safety.” If there is no summons in an unlawful detainer case, that means there is no need for the tenant to respond to a complaint, which means that the court cannot lock-out the tenant. Practically speaking, this rule shifts the balance of power to tenants and away from landlords as non-payment of rent will not allow the landlord to recover possession.
However, landlords are not without a remedy when the tenant violates public health and safety. The letter below has been drafted by Scott Talkov at Talkov Law Corp., a law firm assisting clients with expertise as a real estate attorney in Riverside, California.
[Sender’s Address, Phone Number and Email]
VIA POSTING AT PROPERTY, U.S.P.S. CERTIFIED MAIL AND EMAIL
Phone: [Recipient’s Phone]
Facsimile: [Recipient’s Fax Number]
[Recipient’s Email Address]
Re: Three-Day Notice to Quit – Violation of Public Health & Safety
Premises: [Premises Address]
Landlord: [Landlord Name]
Tenant(s): [Tenant Name(s)]
Dear [Mr/Ms.] [Tenant(s)]:
This office represents your landlord, [Landlord Name], as owner of your apartment [Apartment Address]. Please be advised that this letter serves as the Three-Day Notice to Quit pursuant to California Code of Civil Procedure section 1161(3). Unfortunately, the breach specified below of your [specific violation of Public Health & Safety] is incurable, which is why the landlord regrets that it must terminate your tenancy. We hope that you understand that the landlord wishes you well in finding a new residence that is more suitable for your needs.
THREE DAY NOTICE TO QUIT – VIOLATION OF PUBLIC HEALTH AND SAFETY
- Tenant(s): [Tenant Name(s)]
- Lease Agreement: You are Tenants under a rental agreement, dated [date of the rental agreement], relating to [premises address] entered into by [names of tenant(s)] as the Tenant(s), on one hand, and [name of landlord], on the other hand.
- Notice of Breach of Public Health and Safety: [Insert specific facts of the incident that is a violation of the public health and safety, i.e. who, what, where, when, how]
Please understand that unlawful detainers are still being heard by the [County] Superior Court when “necessary to protect public health and safety” under Rules of Court, Appendix 1, Emergency Rules related to COVID-19, Emergency Rule 1(b) (Unlawful Detainers).
California Civil Code section 1946.2 provides that the owner of residential real property may terminate a tenancy of over 12 months if there is “just cause.” Just cause includes, [if the violation of public health and safety relates to any of the at-fault just causes found in California Civil Code section 1946.2(1)(A)-(K), quote the section]
Further, paragraph [specify paragraph] of the Lease provides that the [if the violation of public health and safety is also a violation of any of the lease provisions then quote the relevant portions of the lease provision]
The tenant(s) actions have undermined public health and safety at the Property, thereby necessitating this action.
- Termination of Lease Due to Violation of Public Health and Safety: Due to the foregoing, within three (3) days after service of this notice, you are required to vacate and deliver possession of the premises to the Landlord located at [landlord address]. If you fail to vacate and deliver possession of the premises within three (3) days, legal proceedings may be initiated to regain possession of the premises and to recover the rent owed, treble damages, costs, and attorney fees.
Further, Landlord hereby elects to declare a forfeiture of the Lease.
While the Landlord is entitled to pursue collection of any future rental losses allowed by Civil Code § 1951.2, and hereby reserves this right, the Landlord has offers to waive this right provided that all Tenants turnover possession of the premises no later than [insert three-day notice deadline pursuant to Cal. Civ. Proc. Code § 1161(1-3). The code was amended in September 2019 to exclude Saturdays, Sundays, and other judicial holidays for counting the three-day notice deadline.]
Further, to the extent, the Tenants turnover possession no later than [insert three-day notice deadline], [specify offer if the Tenant(s) vacate the premises prior to the deadline e.g. full refund of the security deposit, rent credit etc.]
If you would like to discuss the above offer or have any questions, I can be reached at [your phone number] and at [your email address].
Very truly yours,
/s/ [Sender’s Signature]
Notice: Please contact an attorney to advise you of your rights upon an assessment of the facts in your case before using this letter. In the event that the tenant does not vacate the premises or if this matter relates to a case with significant monetary risk or damage, particularly in the commercial leasing context, it is strongly advised that you contact a commercial landlord tenant attorney to consider all of your options.