While this issue rarely arises in residential leases, it is not uncommon for a commercial tenant to negotiate into a lease the requirement that the landlord provide more than 3-days notice, statutorily required by law to evict a tenant. Typically, language that I see is:
"Any failure by Tenant to pay any Rent or any Additional Rent and any other amounts due Landlord under this Lease, where such failure continues for a period of five (5) business days after Tenant's receipt of written notice thereof from Landlord"
To begin with and as an example, the California eviction laws are statutory in nature. California and most other states provide for a shortened legal process to remove a tenant from real property. This quicker or faster process is provided by statute only and is often referred to as an unlawful detainer process. What I mean by statutory in nature is that there is no a "common law" or "natural" legal right to remove a tenant from property other than as provided by statutory law and usually, as in California, the statutory requirements must be strictly complied with. For a landlord, there is very little margin of error allowed. Nearly all reasonable inferences will be drawn in favor of the tenant so the landlord better have its "i"'s dotted and "t"'s crossed.
California, as in most other states require the landlord to serve a "3-Day" notice to the tenant, to pay rent or quit in the event of a rent default in order to remove the tenant from the property. Only a 3-day notice is statutorily required.
The question is, based upon the typical language provided above:
"If the lease requires a 5 day notice and statute only requires a 3-day notice, how long should the notice be when serving the tenant after a default?"
The California cases are split on the answer, but there is a safe way to proceed.
Some California cases insist that a landlord need only follow the statutory 3-day procedure to obtain the benefit of the eviction statutes and allow you to evict a tenant. These cases distinguish the statutory rights to evict from the contractual rights set forth in the lease, but do not resolve the issue of landlord liability for failure to follow the lease terms.
Other cases allow the landlord to serve a notice entitled a "3-Day" notice but wait the necessary 5 days. In this case, the courts usually will consider the notice satisfactory to comply with both the lease and statutory obligations of the landlord.
Unless time is extremely of the essence, my office usually would serve a notice entitled "5-Days" and wait the 5 days required by the lease, thus satisfying both the statutory and lease obligations. No point in tempting fate or the court.
There is something special or not typical about the example rent default language that I provided earlier in this post, which, if you haven't noticed, is highlighted in bold; the phrase, "business days." There is another lesson here, which is:
Just when you thought that it was safe to go into the water......... no, just when you thought you knew what every lease says, a tenant throws you a curve ball.
If I were to serve a rent default notice based upon the above language, I would, at the very least, wait 5 business days and I start counting those business days from the day after service, before I would file an unlawful detainer complaint.
