Everything You Wanted To Know About 3/60 Day Notice
(BUT WERE AFRAID TO ASK)
By: Larry W. Weaver, Esq.
In 2003, the California Legislature passed, and the Governor signed into law, a change in Civil Code § 798.56(e) which affects all owners of manufactured home communities. This change in California law required that you include specific additional language in all notices served for non-payment of rent, utilities and/or other charges. Effective January 1, 2004, this language must be at the top of the notice in at least 12-point boldface type as follows:
Warning: This notice is the _____ three-day notice for nonpayment of rent, utility charges, or other reasonable incidental services that has been served upon you in the last 12 months. Pursuant to Civil Code Section 798.56(e)(5), if you have been given a three-day notice to either pay rent, utility charges or other reasonable incidental services or to vacate your tenancy on three or more occasions within a 12-month period, management is not required to give you a further three-day period to pay rent or vacate the tenancy before your tenancy can be terminated.
While most everyone is by now aware of the new requirements for 3/60 day notices, the 3/60 nonetheless remains one of the most misunderstood and important forms in the operation and management of mobilehome communities. When properly completed and served, the Three (3) Day Notice to Pay Rent or Quit and Sixty (60) Day Notice to Terminate Possession and the Three (3) Day Notice to Perform Covenants or Quit and Sixty (60) Day Notice to Terminate Possession form the backbone of the unlawful detainer for nonpayment of rent. When improperly completed or served, the results can be lost rents, lost time and squandered opportunities.
Prior to 2004, the basic form of the 3/60 day notice has been unchanged since 2002 when the California Code of Civil Procedure, § 1161 was amended to require that notices contain the name, telephone number, and address of the person to whom the rent payment is to be made, and, if payment may be made personally, the usual days and hours that person will be available to receive the payment. Without this language, the notice is invalid.
Even if your 3/60 day notices includes the language at the top of the notice, and the required payment information, there are many questions which may arise about the proper use of 3/60 day notices. Perhaps the most common and basic question related to the 3/60 day notice is when can it be served? The answer to this question depends upon when the rent is due. Assuming that rent is due on or before the first (1st) of each month, as is the case in most communities, the 3/60 day notice cannot be served until the rent has been unpaid for a period of five days after its due date. In calculating the five days, you do not count the date the rent is due. Since the notices cannot be served until after the five days is up, the notices cannot be served until the seventh (7th) of the month. Accordingly, if the rent is due on the first, any 3/60 day notice served before the seventh of the month which includes rent for that month is invalid.
Another often misunderstood issue is who should be named in the 3/60 day notice? The answer to this question is that the notice should name all who are responsible to pay the rent. In most cases, those who are responsible for paying rent are those individuals who signed the rental agreement or other adults who live at the premises with park approval or who have paid rent in the past. Please note that you do not need to name the registered owner merely because they are listed on title as the registered owner. While the registered owner is typically also a signatory to the rental agreement, and thus is responsible for paying rent, the mere fact that someone is listed on title as the registered owner does not obligate them to pay rent.
Likewise, a legal owner and/or lienholder need not be named in the 3/60 day notices merely because they are the legal owner or lienholder of the home (though they will be entitled to a copy sent certified/registered mail, return receipt requested) as the legal owner/lienholder is not responsible for payment of rent unless they choose to become responsible in accordance with Civil Code, § 798.56a and § 798.79.
A question which often arises is who should be served with a copy of the 3/60 day notice? Anyone who is named on the 3/60 day notice should also be served with their own copy of the notices. While case law allows one signatory to a written contract to be served on behalf of a co-signatory, it is preferable that each party named be served with their own copy of the 3/60 day notice to simplify the case and avoid issues which may be raised in defense.
Just as important as knowing who to name in a 3/60 day notice and who to serve with copies of the notice is how to serve the notice. There are three (3) ways to serve the 3/60 day notice. The preferred means of serving notices is to personally serve the notice by handing a copy of the notice to the named resident. If you are unable to make personal service, then you may affect constructive service by giving a copy of the notice to a person of A suitable age and discretion@ on the premises (someone over the age of 18 you are reasonably certain will deliver the notice to the resident) and thereafter mailing a copy of the notice to each named resident at the premises, using a separate envelope for each. If there is no one of suitable age and discretion to whom the notice may be given, then simply post one copy of the notice for each named resident to the front door and mail a copy of the notice to each named resident at the premises, using a separate envelope for each. You must use one of these three forms of service in all cases. Please note that posting alone or mailing alone is never proper service.
After serving the notice, you should always complete a proof of service form (signed under penalty of perjury), indicating the manner of service used; by personal service, by constructive service, or by posting and mailing.
After serving the 3/60 day notice, the Civil Code requires that copies of the notices be sent by certified or registered mail, return receipt requested, to the legal owner (if any), to any lienholders and to the registered owner if other than the homeowner at the address listed for them on title. Copies of the notices must be mailed within ten days of the date the notices were served on the resident, though it is easier to mail them on the same day of service. In order to assure compliance with this requirement of the Civil Code, you must have a current copy of the title (obtained from HCD or DMV). If your title is not current, you run the risk of mailing to the wrong party or to a wrong address. Because this mailing is the basis of the warehousemans lien (when appropriate), it is imperative that the mailing be correct. Moreover, an improper mailing can also give the resident a defense at trial and result in the loss of the unlawful detainer action.
Please note that the certified/registered, return receipt requested mailing must be mailed to the entities (or individuals) and addresses as shown by the current title even if you know that the title is wrong . This means that you will be required to mail to a legal owner that you know has gone out of business, to an address that you know is wrong, to an address that you know will result in the notice being returned by the post office, to a registered owner (often the former resident) who you know has no interest in the home or to a former resident still listed on title who you know is dead. In cases where you have knowledge of a different legal owner or a different address you should mail to the entity you know to be the legal owner, or to the address you know to be the correct address in addition to the entities (or individuals) and addresses as shown on the title. While all this mailing may seem to be a waste of time and money, it is imperative that you mail as indicated by the current title so as to preserve your rights to proceed with a warehouseman lien sale as appropriate.
A common misconception is that in order to evict a resident for nonpayment of rent, management must serve three or more 3/60 day notices over a twelve month period. Such is not the case. If a resident is served with a 3/60, and does not pay the full amount within three days, or sell the home to an approved purchaser or vacate the premises (the space) within sixty days, the law allows you to proceed with an unlawful detainer action (the lawsuit to recover possession of the space) upon the expiration of sixty days. The so-called A three strikes and your out nonpayment of rent notice is a special notice authorized by Civil Code, § 798.56(e)(5) which allows management to serve a 60 day notice for repeated failure to pay if you have, within the proceeding twelve months, served a resident with three or more nonpayment of rent notices and, effective January 1, 2004, the prior notices contained the new required language in 12 point boldface type at the top of the notice.
Assuming that the 3/60 day notice has been properly served, that copies were mailed certified/registered mail, return receipt requested, as required, and the rent was not paid within the requisite three (3) day period, the resident must either sell the home to an approved purchaser to remain in the community or remove the home from the community within sixty (60) days from the date the notice was served.
If after sixty (60) days, the resident has not either sold the home to an approved purchaser or removed the home form the premises, management has a number of options available. Of course management can proceed to evict the resident for nonpayment of rent by the filing of the unlawful detainer action. However, if the resident is not someone that you feel compelled to evict, you may have an opportunity to recover your attorneys’ fees, or to obtain compliance with a long-standing rule violation, as a condition of rescinding the notice and reinstating the tenancy. Moreover, even after filing the unlawful detainer action, a conditional settlement prepared by your attorney can provide the means to obtain a court-enforced payment plan or rule compliance, or both, which results in an eviction for non-compliance, rather than having to start all over again.
Assuming that your 3/60 day notice was properly prepared and served, including mailing copies to the registered owner, legal owner or lienholder by certified mail, return receipt requested, after a resident vacates the premises and leaves the home, or is legally evicted pursuant to an unlawful detainer judgment, management may then be able to proceed with a warehouseman’s lien in accordance with Civil Code, § 798.56a.
When completed, served and mailed properly, the 3/60 day notice gives management a number of options and possibilities. When improperly completed, served or mailed, the 3/60 day notice can result in unnecessary expense, delay and frustration. Your results will depend of your strict adherence to the requirements set forth above.