Does lease agreement supersede CCP 1161(2)?

[thequiestionor]

Jurisdiction

California

Hi,

We have a tenant who signed a 12 month lease. 3 months in, they stopped paying the rent and not responding to any calls/ emails/ texts.

The lease has a "2 consecutive months of non payment for termination" clause.

Question:
Does the lease's 'two consecutive months' language in the Non-Payment clause for termination delay my right to serve a 3-day notice or file UD for a single month's non-payment, or does CCP 1161(2) still apply independently?

Thanks

 

[adjusterjack]

not responding to any calls/ emails/ texts.

So? Have you gone to the property to see what's going on?

If not, go there and serve the 3 day pay of quit notice. If they don't pay by the deadline, evict.

If you don't know what to do about tenants who don't pay, you need a lawyer and you need to get out of the landlord business.

 

[thequiestionor]

So? Have you gone to the property to see what's going on?

If not, go there and serve the 3 day pay of quit notice. If they don't pay by the deadline, evict.

If you don't know what to do about tenants who don't pay, you need a lawyer and you need to get out of the landlord business.

This doesn't answer my question. But thank you for taking the time to give your thoughts.

 

[Tax Counsel]

Hi,

We have a tenant who signed a 12 month lease. 3 months in, they stopped paying the rent and not responding to any calls/ emails/ texts.

The lease has a "2 consecutive months of non payment for termination" clause.

Question:
Does the lease's 'two consecutive months' language in the Non-Payment clause for termination delay my right to serve a 3-day notice or file UD for a single month's non-payment, or does CCP 1161(2) still apply independently?

Thanks

So your lease requires a longer period of failure to pay than the statute does? Why would you use that provision if you weren't willing to follow it? Your lease may grant the tenant more time to pay than the statute does before eviction; any lease provision that asserts a right for the landlord to act in less time the statute requires is typically unenforceable. Those are the general principles that apply when looking at contract terms versus statutes. In other words, you end up always having to allow what your lease allows, and may have allow more time if the statute gives more time. Take the lease and payment record to a local landlord/tenat attorney ASAP. The sooner you get deadbeat tenants out, the better. You are not in the business of providing free housing.

 

[thequiestionor]

So your lease requires a longer period of failure to pay than the statute does? Why would you use that provision if you weren't willing to follow it? Your lease may grant the tenant more time to pay than the statute does before eviction; any lease provision that asserts a right for the landlord to act in less time the statute requires is typically unenforceable. Those are the general principles that apply when looking at contract terms versus statutes. In other words, you end up always having to allow what your lease allows, and may have allow more time if the statute gives more time. Take the lease and payment record to a local landlord/tenat attorney ASAP. The sooner you get deadbeat tenants out, the better. You are not in the business of providing free housing.

Who knew this could happen? Thank you for your answer. This helps! We already started looking for the attorney.

 

[Red Kayak]

Who knew this could happen?

The fact that landlord/tenant laws and leases exist is because something like this has happened enough times to acknowledge the possibility.

Question:
Does the lease's 'two consecutive months' language in the Non-Payment clause for termination delay my right to serve a 3-day notice or file UD for a single month's non-payment, or does CCP 1161(2) still apply independently?

@Tax Counsel, as usual, if very thorough.

Let me put it this way:
If your lease gave LESS time than CCP 1161(2), then that clause would be UNENFORCEABLE, and your safest bet would be to go by CCP 1161(2). If it got to the point that you had to go to court to get and eviction, it would hurt your case to have served 3 days notice, etc., earlier than CCP 1161(2) allows.

Because your lease gives MORE time than CCP 1161(2), then that clause in the lease is ENFORCEABLE, and your safest bet would be to go by the clause in your lease. If it got to the point where you had to go to court and get an eviction, it could hurt your case going by CCP 1161(2) guidelines in serving 3 days notice, etc., because your lease terms are more generous. It would make your tenant look worse for not having paid.

So, yes, it would seem that for the particular issue that you are inquiring about, you should go by the terms in the lease regarding non-payment.

However, the average lease includes more than how much rent is per month. In particular, the right of the LL to inspect the premises with adequate notice (24 hours?), and a list of negative things that can be used as grounds for eviction (e.g. illegal activity, unapproved pets and/or occupants, etc.) after a 3 Day Notice to Quit or Cure.

Your tenant stopped paying rent. You have not been able to reach them. It is perfectly reasonable that you give them notice (at least 24 hours) that you will be inspecting the property. One of these ways must be documentable. A reason for the inspection must be included. Safety, routine maintenance, and repairs are examples of reasons, and completely plausible after 3 months of rent.

 

[Zigner]

Hi,

We have a tenant who signed a 12 month lease. 3 months in, they stopped paying the rent and not responding to any calls/ emails/ texts.

The lease has a "2 consecutive months of non payment for termination" clause.

Question:
Does the lease's 'two consecutive months' language in the Non-Payment clause for termination delay my right to serve a 3-day notice or file UD for a single month's non-payment, or does CCP 1161(2) still apply independently?

Thanks

I do need to point out that your actual location in California can affect things, as there may be local laws that apply that are more restrictive than the state laws. I'm glad that you're looking for an attorney, although, in hindsight, you should have consulted with the attorney when creating the lease document.

 

[zddoodah]

We have a tenant who signed a 12 month lease. 3 months in, they stopped paying the rent and not responding to any calls/ emails/ texts.

When was the lease signed? On what date and for what month did you receive the most recent rent payment.

The lease has a "2 consecutive months of non payment for termination" clause.

Question:
Does the lease's 'two consecutive months' language in the Non-Payment clause for termination delay my right to serve a 3-day notice or file UD for a single month's non-payment, or does CCP 1161(2) still apply independently?

There is no way for anyone here to intelligently interpret something we haven't read.

Query: what did you think this provision meant when you inserted it into your lease? What discussions were had between you and the tenant regarding this provision? OR...did you just use some random lease form that you found on the internet without bothering to read and understand it and presented it to the tenant as a take-it-or-leave it thing?

Who knew this could happen?

Any lawyer who read the lease agreement could have given you a heads up about the effect of various provisions.