An issue recently arose with one of my clients when they wanted me to serve a 3-day notice on the 2nd day of the month. In reviewing the lease and the payment history, I noticed that the lease provided that a late fee attached if rent wasn't paid on by the 10th day of the month. I also reviewed the payment history of the tenant and noticed that the tenant paid rent, regularly on the 10th day of the month.
There is case law in California which stands for the proposition that even-though a commercial lease requires rent to be paid on the first day of the month and has a non-waiver provision, if the lease provides that a late fee does not apply until the tenant is more than 10 days late in the payment of rents and the tenant regularly paid rent on the 10th day of the month, the tenant cannot be evicted for failing to pay rents pursuant to a 3-day notice served on the 2nd day of the month.
The lesson learned here is, without fail; make sure that your tenant's are paying rents on time. I favor an automatic system whereby the landlord or its property manager makes a friendly telephone call on the 2nd day of each month if rent is not paid on the first, that way it is not personal. Do not consistently wait until late fees apply before you serve a 3-day notice and before you serve a 3-day notice, consider whether you want to legally terminate the lease by serving a formal 3-day notice. Landlords could also, before serving a 3-day notice to pay or quit, as standard operating procedure, deliver a letter reminding tenant that rent is due on the first. Whatever you do, don't act or communicate in any way that the landlord is somehow agreeing that rents do not have to be paid on the 1st day of the month.
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