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CalAttorney2
CalAttorney2, Attorney
Category: Landlord-Tenant
Satisfied Customers: 10238
Experience:  I am a civil litigation attorney with experience representing both landlords and tenants in residential and commercial property disputes.
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I am a tenant of an apartment complex in Huntington Beach,

Customer Question

I am a tenant of an apartment complex in Huntington Beach, CA. My small family has had a rough last few months due to work being slow. That being said, we were then served an Unlawful Detainer Eviction Notice that was filed on December 18th. I attempted to pay our December rent on December 22nd. It was a cashiers check so funds were certified. Our landlord returned the rent to us on 12/23/15 with a letter, indicating that they will not accept the rent without the late fee's and payment was not made prior to the end of the 3 day pay or quit.
In speaking to others, I was told that the landlord acted inappropriately in that,
1. The 3 day pay or quit notice included charges other than rent. It includes late fees.
(Rent is $1325 and the 3 day notice was for $1475).
I was told they cannot due this.
2. After receiving the summons, and receiving the returned rent payment, I texted the landlord for clarification. He indicated that now, at this time, in order to stop the eviction, we now need to also pay the $705 in legal fees on top of the $1425. This amount was not included within the summons and I'm not sure if we are supposed to pay this nor if it is legal to require before an eviction can be stopped. Apparently there is a clause in our lease contract stating we are liable for all legal fee's.
Is it not a fact, that in order to stop the eviction, you pay what the eviction notice indicates? However what if that amount is not accurate? Can they just add on whatever fee they desire?
Submitted: 11 months ago.
Category: Landlord-Tenant
Expert:  CalAttorney2 replied 11 months ago.

Dear Customer,

I am sorry to learn of this matter.

  • The 3 day notice can include only past due rent. You are correct, the landlord's notice is improper.
    • You can argue that this is an improper notice and therefore the landlord will have to start all over again.
    • However, as a practical matter, it is probably a good idea to leave your options open here and remain open to negotiating a settlement - you haven't paid rent for a couple months, and the landlord will eventually get it right - even if they have to start over; and some judges ignore this provision, and allow the landlord to go forward even if the notice is improper, with an argument that "well the notice did say what the rent was"
  • Your landlord does not have to accept rent if it is offered more than 3 days after the notice (even if it is offered 1 day late). So your landlord is right on this one.
  • Re: legal fees - attorney's fees clauses are enforceable, while many are written so that they say "landlord may recover fees" (or similar language), they are enforced so that the "prevailing party" (so either the landlord OR the tenant) can recover their fees after a successful action.
    • It does cost money to start an unlawful detainer, $750.00 is not unheard of for initiating one.
  • Late fees. This is an area of dispute - here is one attorney's take on them: http://www.caltenantlaw.com/LateFees.htm
Customer: replied 11 months ago.
My argument is this though...We were served our Summons of Unlawful Detainer-Eviction notice on December 19th at 9pm. So we had until December 22nd, 9 pm to pay our rent in order to stop the eviction. We paid the correct rent amount of $1,325 before the 3 days expired. Infact dropped in box since he is never in his office, December 22nd, 12 Noon.AndIf they are requiring us to pay legal fee's, should we be given some sort of documentation, or invoice indicating so? Is that amount truly necessary to pay prior to stopping an eviction? I mean the reason we didn't just go in and pay the remaining $150.00 that was left out was because the apartment manager texted us that we now have $75 legal fee and another $705 legal fee on top of that which must be paid first. That made it impossible. So we wanted to speak to the judge on this as we are kind of in the dark as to our rights.
Expert:  CalAttorney2 replied 11 months ago.

Dear Customer,

I am confused - an "Unlawful Detainer" is the summons and complaint for the eviction matter, this IS NOT the same as the "3 day notice to pay or quit" which gives you 3 days to pay. If you are referring to the date that you were served with the unlawful detainer, as opposed to the 3 day notice, you do not have time to pay.

However, if the landlord refused to accept rent within 3 days (calculated as 3 calendar days After the date of service) of the 3 day notice to pay or quit, this is a defense to your unlawful detainer.

With regard to the legal fees, remember, you are in negotiations, they are not yet asking the court for a judgment or order against you - they don't have to prove the amount of damages yet.

(If you have not already found it, the California Courts have a very helpful site on unlawful detainers for tenants: http://www.courts.ca.gov/selfhelp-eviction.htm)

Customer: replied 11 months ago.
We were told what we had to pay by our landlord. That isn't being negotiated. When we received the summons, and paid the rent amount, they returned it demanding we pay $150, plus $75, plus $705.00 in legal fee's in order for them to stop the eviction notice. So I guess we should leave that to the judge to decide?
Expert:  CalAttorney2 replied 11 months ago.

If you want to litigate it you can. I would definitely recommend reviewing the link to the California Courts I provided above.

Most courts in CA do have a mediation program, you may find that you are referred to mediation on your trial date, your landlord may be forced to at least sit and attempt to negotiate with you (the court cannot force them to settle), but this is another opportunity to discuss the situation.

Customer: replied 10 months ago.
Good afternoon,We went to trial, we had all of our ducks in a row, all of our evidence and proof. The judge impressed with us, but really laid into the landlord and his attorney for not having the same. She couldn't determine how she wanted to call this case, so said she would think about it and mail us the judgment.Plaintiff was suing for $1,475.00 (damages)In the judgment, which we just received today, it indicates :
Judgment is for the defendant Carli and Dillon
Defendant is entitled to possession of the premises
Plaintiff is to receive nothing from defendant
Recover costs was left blank
Attorney fees was left blank
and then signed by the judge.What exactly does this mean? I would assume the rent amount should be listed in there, excluding the improper fees that they tact on making the original 3 day pay or quit invalid.Rent is typically due by tomorrow. the 4th of the month. Yet today, after we received the judgment, the landlord placed another 3 day pay or quit on our door for December $1,325.00, January $1,325.00, and February $1,325.00.
Now, is this supposed to include December since this amount was not included in the judgment from trial?
Are they allowed to issue a 3 Day pay or quit before the last day allowed to pay rent? Usually after the 4th it is considered late.
Expert:  CalAttorney2 replied 10 months ago.

Dear Customer,

If you did not pay your rent for Dec. and Jan. (even if the judgment was in your favor), the landlord is entitled to place a "pay or quit" for those months.

(The issue with Dec. rent being rejected initially should still have been resolved, if you received a positive judgment, you should have retendered the payment to the landlord promptly).

With regards ***** ***** Feb. payment - if your rent includes a grace period that provides you with a 3 day grace period, your rent is not considered late until after that time period has passed.

What this means is that the notice is defective in as much as it demands Feb. payment prematurely.

How you want to deal with this strategically is up to you - you are still going to owe rent for these three months regardless of what happens.

You can write another written notice to the landlord identifying the defect in the notice - this will simply alert them to the deficiency and they will wait, then give you a new notice (they are unlikely to push ahead a second time with a defective notice).

You can go ahead and let the notice sit, then wait for them to file a second UD, go to trial, and hope the court agrees with you (as you have found, there are "inherent risks in litigation" - so while this is technically deficient notice, you may not find that the court agrees with you (particularly if there are 2 months outstanding rent due)).

You can simply pay your rent and keep written documentation showing you paid for the 3 months, and get a receipt from the landlord.

Customer: replied 10 months ago.
I feel like you do not recall my issue at hand.No I didn't pay December rent, which is what caused this entire issue. Because we were set to go to court, and the landlord returned the monies we had attempted to pay for December, we did not pay January either. As that monies would have also been returned. February is not late yet.That being said, because this judgment is solely based on December rent AND the judgment does NOT specify that I owe any money to the landlord (Defendant). In fact states Plaintiff is to receive NOTHING from the defendant. AND the next section of the judgment states the Defendant must pay the Plaintiff past due rent and the amount to pay was left totally blank. The holdover damages is also totally blank. The attorney fees is also totally blank. The costs is also totally blank. The total judgment to the plaintiff is ZERO dollars.
This leads me to believe I owe nothing for the month of December.
However I do for January and February now.
Customer: replied 10 months ago.
Landlord (Plaintiff)
Customer: replied 10 months ago.
Possibly because the judge agreed the Landlord was acting negligently and harassed us through texts messages and saw the proof in the pudding.
Expert:  CalAttorney2 replied 10 months ago.

Dear Customer,

The court did not issue a money judgment because the landlord's notice was defective, therefore the unlawful detainer was defective, and therefore the landlord's claim is denied.

This does not mean that the rent is excused.

In order for you to be awarded money damages (including any offset against rent owed), you would have to file a cross complaint against the landlord, and the judgment would indicate that the landlord owed you money.

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