The way Landlords respond to a failure to pay rent is about to change - and not in favor of Landlords. When a tenant fails to pay rent, the first step a Landlord should take is the immediate service of a three-day notice to pay rent or quit. If the tenant does not pay the rent due or vacate the property within three days, the Landlord can start the eviction process by filing an unlawful detainer lawsuit. Thus, the first critical factor in responding to a failure to pay rent is knowing when the three-day notice expires. If suit is brought too early, it is defective and can lead to more delay as the Landlord must start the process over from the beginning. 

Currently the three-day notice starts to run the day after service of the notice. It cannot expire on weekends or holidays, but those days count as part of the notice period. Accordingly, our current usual procedure is to serve a three-day notice on a Friday so that it will expire at the end of the day on Monday. This allows only one business day for the tenant to respond, sends a powerful psychological message that they are in breach of their obligation, and gives them all weekend to contemplate how their failure to pay rent is a major problem.

The three-day notice period only counts business days and not holidays and weekends. This will lead to some strange results that seem contrary to the concept of a short notice period before the Landlord can file the eviction. Under these rules, if a notice is served on Tuesday the first day of the notice period will be Wednesday and the third day will be Friday; however, functionally this means that a Landlord cannot file an unlawful detainer action until the following Monday; in effect, the three-day notice has become a six-day notice. Moreover, if the following Monday is a holiday then the suit cannot be filed until the following Tuesday, thereby turning the three-day notice into a seven-day notice. This is obviously an unfair result for Landlords, as every day without payment is a loss. 

Our office has already strategized a methodology to minimize delay and still exert pressure on delinquent tenants. We suggest serving three-day notices on Mondays. Tuesday is the first day of the notice period and Thursday is the third day. In the event that the tenant does not pay the amount due or vacate by Thursday, we will be prepared to file the unlawful detainer action on Friday. This will not only limit the three-day notice period to three actual days, but we can commence service of the unlawful detainer lawsuit on Friday, allowing us to still send an important psychological message that failure to pay rent is a major problem. By utilizing this strategy we will minimize delay and exert pressure. The complex eviction process has become even more complex, making experienced legal assistance absolutely critical. 

By Andres Sanchez

Partner, McLaughlin Sanchez LLP

McLaughlin Sanchez is a property owner/Landlord law firm in San Francisco. We are dedicated to representing property owners and Landlords in protecting their interests and recovering their rental units. We specialize in residential and commercial property and provide service throughout the Bar Area. Call us for a no-cost no-obligation telephone consult.