As the title character, Harold Hill, in the Broadway musical,
"The Music Man" observes, "Trouble! Right here
in River City!" Substitute the name of your hamlet for
River City and the message should be clear.
In California, as in most states, a three day notice to pay
rent or quit must be served upon the tenant before the landlord
can commence an action for unlawful detainer to recover possession
of the property. Such a notice can also require the tenant to
cure other defaults such as an unauthorized assignment or sublease
of the property, use of the premises for an unlawful purpose,
or commission of a nuisance.
Assuming your default is limited to the failure to pay rent,
you have the following options:
Pay the rent.
If you can find the money, pay the rent due before the expiration
of the three day notice. If you anticipate repetitive difficulty
in paying rent, beg or borrow the money to buy time to sell
your business.
Do nothing.
A dangerous option. If, however, your attorney concludes that
the notice or service is defective, and defenses can therefore
be raised in forthcoming unlawful detainer action, you can consider
waiting for the summons and complaint and hope that the attorney’s
advice was correct.
Negotiate with the landlord.
Many landlords would prefer to receive partial payments under
some type of payment plan rather than dealing with vacant space.
Never fear to negotiate.
Vacate the premises.
If you have no hope of securing money to pay the rent, vacating
the premises reduces the amount of any judgment that the landlord
might obtain against you.
What constitutes the requisite period of three days? Most jurisdictions
provide that if the last day falls on a Saturday, Sunday or
holiday, the next business day counts as the third day.
Can a three day notice include late charges? Unlawful detainer
statutes in most jurisdictions refer to the default in the payment
of rent and make no mention of charges other than rent. Thus,
it might be argued that a notice is ineffective if it includes
amounts other than rent. Beware, however, of the lease which
contains the provision "Rent Defined. All monetary obligations
of lessee to lessor under the terms of this Lease are deemed
to be rent."
What if the landlord’s statement of rent in the three day
notice is slightly in error? At one time, such a defect could
be fatal; however, most jurisdictions, including California,
presently provide that if the amount claimed in the notice is
clearly identified as an estimate, the defect is not fatal.
In California, the applicable statute provides that if "it
is determined upon the trial . . . that rent was owing, and
the amount claimed in the noticed was reasonably estimated,
the tenant shall be subject to judgment for possession in the
actual amount of rent and other sums found to be due."
If you have withheld payment of rent because the landlord hasn’t
paved the parking lot or has failed to perform some other obligation
under the lease, you are traveling through dangerous waters.
Most courts hold, in commercial tenancies, that a defendant
may not defend an action based on nonpayment of rent with the
claim that the landlord breached his agreement to repair. The
obligations are considered to be "independent" requiring
separate actions.
Unlawful detainer actions are entitled to trial priority in
court and thus are heard relatively quickly. In California,
a tenant has five days to respond to an unlawful detainer complaint
after service and a trial is set within twenty days after the
court is advised that the tenant has filed an answer to the
complaint. In view of the speed with which an unlawful detainer
action proceeds to trial, if a tenant has grievances against
the landlord, the best course is to pay the rent to avoid the
unlawful detainer action and then file a complaint against the
landlord.
Can you file a complaint against the landlord in an unlawful
detainer action (as a cross-complaint) so as to expedite a hearing
about your grievances? No. Cross-complaints by a defendant in
an unlawful detainer action are not permitted.
The moral of the story? Equipment off-location has minimal value!
Give the payment of rent high priority or, if your economic
future is bleak, seek the advice of a good lawyer before the
process server knocks on your door!
