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William B. Esq.
William B. Esq., Lawyer
Category: Real Estate Law
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Experience:  I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
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Hi: I have a new roommate she signed a month to month lease

Resolved Question:

Hi:
I have a new roommate she signed a month to month lease contract. I am from Los Angeles, California. However, her rent check was bounced last month and even this month July. She did pay last month rent with the late fee. However, my roommate still not pay me any rent with late and bounced check fees yet. Always lie and fooling me around. Now she is not paying me the rent and ignore me. I have advertised new posts for renting her room now. She gave me another check for this month July rent but no money in the bank I cannot cash the check but I am still keep holding now. I might can cash in later end of this month when her bank account direct deposit from her employer earn income if she didn't close this bank account hopefully.

She has notified me by e-mail at the end of June to vacant her room by 60 days notification per signed lease contract, so will stay until end of August. *** She signed a letter for a reason why vacant her room because she had the daughter stays with her for over 3 weeks and even 3 to 4 times more this coming year but the landlord doesn't allow the permission because the rental room is only allowed one person to rent and to stay in the room per the agreed and signed lease agreement. *** ****Also any overnight guest keep staying in the room for 3 days, the tenant will receive 7/14/30 days notice to move out per signed and agreed lease agreement! That's mean she has break her lease agreement have someone stays there for 3 days***

1) What should I do right time? Can I file a Small Claim Court now because I am afraid of she will not move out even until at the end August next month as she is not paying any rent and late fees now. Ignoring me now. I still have her one month security deposit. In case of any happen after file a court(don't know how long takes for hearing in case if need), the Sheriff is ready after I file a claim in the court, if she doesn't move out, I can pay the sheriff to take her stuffs out from the room and then I replace all new key locks.

2) Can I have her to move out now because she did sign a paper that she break her lease agreement had her daughter stays overnight for 3 days or more with 7/14/30 days notice to move out but I didn't give her notice because she notified my move out then but now she is not paying any rent and late fees?
Thank you for your professional advises.

Applepie
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

Thank you for choosing Just Answer.

To evict this roommate, as she has not paid rent, you can give her a 3 day notice to pay or quit. This will allow you to give her 3 days notice to leave the unit or pay the rent. If she does not pay, you can file what is called an "unlawful detainer" action in court to ask for a judgment in possession. Once you have the judgment, you can get an eviction order and have her removed by the Sheriff (if she has not already moved). You can ask for money damages for the unpaid rent in this same proceeding.

For more information on the process, and for forms to assist you. Here are several links that are very useful. The first is from the California Department of Consumer Affairs (there are several sub links that are worth following), and the second two are from the California Courts).
http://www.dca.ca.gov/publications/landlordbook/evictions.shtml
http://www.courts.ca.gov/11010.htm
http://www.courts.ca.gov/forms.htm?filter=UD

I hope that my answer was of assistance to you. My goal is to provide you with excellent service – if you feel you have gotten anything less, please reply back, I am happy to address follow-up questions. Please remember to rate my service once you have all the information you need. Thank you for your business!
William B. Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 4129
Experience: I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
William B. Esq. and 12 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Hi Bill:


Thank you so much for your promptly response even this is end of Friday.


I did e-mail her to ask to pay back this month rent with the late and bounced check fees altogether on July 17 because I received the bounced check notification from my bank by mail. However, I forgot and did not put the subject is "3 day notice to pay or quit".


 


1) Would that e-mail to my roommate to pay which is still have the same meaning as "3 day notice to pay or quit" so I can file "unlawful detainer" action in court to ask for a judgment in possession?


 


2) Shall I still be able to file "unlawful detainer" even my roommate notified me with 60 days notice to vacant by email(the lease agreement is month to month) and she can stay until to end of August?


 


Thank you.


 

Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

I am happy to be of assistance. You may still file a 3 day notice to quit even though you previously gave the tenant 60 days notice to terminate the lease.

You need to follow the proper rules of service for a 3 day notice (check the Dept. of Consumer Affairs website for the proper forms), if you do not serve your notice properly, you can lose the unlawful detainer action and will need to start again.
Customer: replied 1 year ago.

Hi Bill:


I am a very difficult time to have her to sign the 3 day notice because she always come home very late while I was sleeping. When I woke up, then she left to work. She is always hiding from me. I want to serve this notice in Personal Service. Have her to sign and date on the 3 day notice form next to the Personal Service on the form. Will that be ok?


 


Even I posted on her bedroom front door, she would not sign. How I can serve this paper as soon as possible? Can I mail the form by "CERTIFIED MAIL" to my home(tenant's rental address) or send it to her employer work address by Express Overnight? Thus, if anyone signs the Certified Mail instead of herself from tenant's work or tenant''s residence(I, the landlord, sign the certified mail letter), will that be ok so the Certified Mail proofs that notify her with this 3 days notice to pay or quit? As I remember the form can be served by Personal, "Substituted", or Post and Mail service. * Substituted Service: A copy of the Notice was left with a person of suitable age and discretion at the Tenant's residence or usual place of BUSINESS and a copy mail to Tenant's residence.


 


Please advise if I am doing correctly to serve a copy of the form by Substituted Service to her work address by "CERTIFIED MAIL" and the other copy to the Tenant's rental residence? Thank you.

Expert:  William B. Esq. replied 1 year ago.
You do not need your roommate to sign the 3 day notice.

The notice is effective when you give it to the person, or when the person refuses to take the notice. (See http://www.dca.ca.gov/publications/landlordbook/terminations.shtml - check the bottom of the page, this gives a summary of the ways to properly serve a notice).

You have likely already properly served this individual with a 3 day notice through personal service.
Customer: replied 1 year ago.

I am afraid of she will say to the Judge I didn't serve a 3 day notice properly because there is no 3rd party witness except my friend that I told him the story. May be he can be my witness in the court in the future if need.


 


I received my roommate only $400 not the full rent $648 per month this morning on the kitchen table. However, she gave me a personal check at the beginning of this month with no money I could cash at the bank. I am still holding the check.


 


 


***


Rent $648/month,


Rent due as late charge per day $100 per agreed and signed lease agreement


Thus, the late penalty until end of this month $100 x 29 days = $2,900 +$50 1st time bounced check + $648 = Total $3,598 in this month (July)!!!


 


Questions:


1) An additional sum of $100 of the rent due as a late charge per day $100 per agreed and signed lease agreement, how many days can I charge this late charge $100/day?


 


2) Can I cash the the 1st check $798(dated July 17) and the 2nd check $400(dated July 22 today) now and still file the "unlawful detainer" because she still has not pay enough rent with all the late fees and bounced check fees totally $3,598 in this month July?(actually I am not that kind of person charge that expense late fee $100/day which is put serious attention to tenant but this is my first time the tenant doesn't really pay the full rent even till end of this month today July 22!!!)?



3) I am afraid of she will say to the Judge I didn't serve a 3 day notice properly because there is no 3rd party witness except my friend that I told him the story. How to serve no argument in the future in the Court?



Thanks so much for your professional and kindly advises.

Expert:  William B. Esq. replied 1 year ago.
Dear Customer:

The personal service by you (the landlord) is all that is required. Your tenant can dispute the service, but it is proper service. If you wish for more "comfort" (I do not mean this in the derogatory sense, there are many times when a duplicative act is used to add security in litigation), you can have a friend serve the tenant, or another person do so, hiring a licensed process service is one way - but that is far above what is actually required. If you have a third party serve the document, ask them to sign a "Proof of Service" - a short form that you can find online showing that they served the document on the tenant or left it on the door at a certain date at a certain time.

If you accept partial rental payment during the 3 day period, you waive the unlawful detainer on the grounds of non-payment (just the 3 day notice, you are still owed the remainder of the money).

If you wish to accept the money, and waive the 3 day, you can serve a 30 day notice to evict the individual with no reason whatsoever. Also, if you wish, you can serve both a 3 day and a 30 day notice on the person at the same time.

$100.00 per day late fee is too high. A late fee can only be an approximation for the cost of the late payment to the landlord. A late fee that acts as a penalty is void. (See the California Department of Consumer Affairs publication for more details: http://www.dca.ca.gov/publications/landlordbook/living-in.shtml)
William B. Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 4129
Experience: I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
William B. Esq. and 12 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

Bill:


I am confusing the late fee. I know I am charging $100 per day late fee is too high.


 


1) How much is the late fee is reasonable for tenant pay late not on time? Our city is not under rent control areas. If I am charging $100 late fee and the bounced check fee $50, totally is $150 in this month that my tenant didn't pay the rental even though she gave me 2 checks.


- 1st check: $798(rent $648 plus $100 late fee and the bounced check fee $50


I couldn't cash the check actually no $ in her bank account *


- 2nd check: $400 not even enough pay this month rent $648


I couldn't cash the check again actually no $ in her bank account *


 


2) If you think this month *** $100 late fee & bounced check fee $50, and the other $400 late fee" are REASONABLE LATE FEES from your experience or by the California Department of Consumer Affairs, can I go ahead cash those TWO checks altogether at her bank on 29th this month because her bank account has "Direct Deposit from her employer" which might have enough funds? Today is July 25, I still have to receive any rent even a penny in this month now. She is always play game, fool me around, and ignore me. Always give me the check which has no enough funds in her bank account!!!


 


3) After you advise me(all my late charge to tenant $550 if reasonable), then I will go cash those two checks end of this month. If the tenant still not pay enough $ for the next month rent in August(I am sure she will tell me use her security deposit as her last month) as she has notified me move out end of next month August with 60 days notice, can I still serve her 3 Days Notice to Pay or Quit?



4) After 3 Days Notice to Pay or Quit, then I can file "Unlawful Detainer" from the court. How soon and the time frame I can have the sheriff take her stuffs away after filing to the court in Los Angeles, California?


- Do I have to notify her with Advance Notification the sheriff is going to take her stuffs away?


- If she doesn't give me back the security gate and the garage remotes, can I keep the two remotes security deposit for $60 which signed and agreed on the lease agreement?



5) I am scare the tenant will do something hurt me to my life if I file to the court and have the sheriff take her stuffs away. Do I have to file any paper to protect myself in case of anything happen she is doing to hurt me?


 


Thanks so much for your professional kindly advise. Sorry I have more questions as I have no experience with this first time happen to me :))


 

Expert:  William B. Esq. replied 1 year ago.
Dear Customer,

Your revised late fees appear more reasonable (I cannot give you specific advice through this forum, but the $100/month is far less objectionable than $100/day), I do not believe you will have an issue with it from my perspective, but that is not the same as having advice from local counsel with their more specific experience (the only risk you are running is that the Court will knock down your fee anyway - but having one that is more reasonable when you go into court is a good idea).

The only thing I can add to this is that my calculations show late fees of $200.00 under your new charges - $100.00/month and $50.00/check x 2. (I may have missed something, but that is what I see). When you file your unlawful detainer it is far easier to calculate as all of the forms have blanks with specific spaces to fill in and there is an instruction sheet to help you.

I do not see why you would need to give this individual a 60 day notice, 30 days will be sufficient to serve her to move her out without any explanation as she is on a month to month lease.

As I mentioned briefly above - You can serve a 30 day notice at the same time that you serve a 3 day notice to quit - this lets you evict the person whether or not they pay. If they pay the money within the 3 days so that you cannot file the unlawful detainer based on the failure to pay, their lease is terminated in 30 days anyway (you can file an unlawful detainer to evict them at that time).

Remember, if you accept the checks from her, you are waiving your right to the 3 day notice and eviction (that doesn't mean you can't file it after she fails to pay the remainder of the rent, or fails to pay rent next month, you just can't file if you accept partial payment after you have served her with the 3 day notice.

To get from the filing of an unlawful detainer to the sheriff actually physically removing the tenant, it takes about 45 days (you must go through the court - possibly a brief trial - get a writ of eviction, present it to the Sheriff (in triplicate with a letter of instruction - read the Sheriff's website carefully as each department in the state has slightly different requirements), the Sheriff must give a warning notice to the tenant, and then finally will come and physically remove the tenant - you are responsible for having sufficient help available to remove her belongings (in most cases, again, check with the local Sheriff).

If you have a fear of this person for your life or safety, you may file a petition for a civil restraining order (you can find information on the State Attorney General's website and the Court website: http://www.courts.ca.gov/1044.htm

You may use the tenant's security deposit just like any other tenant (it can be used for unpaid rent, damage to the unit, unreturned door openers, etc.). The tenant may not substitute payment of the last month's rent for their security deposit.

I hope that I was able to fully address your question, if I missed anything, please let me know and I will respond promptly.
William B. Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 4129
Experience: I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.
William B. Esq. and 12 other Real Estate Law Specialists are ready to help you

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I am a civil litigation attorney with experience representing HOAs, homeowners, businesses and others in real estate matters.