Generally, under California law, a 3-day notice may be served for a tenant’s default in any monetary obligation under the rental agreement. See Bevill v. Zoura, (1994) 27 Cal. App. 4th 694, 697. The question then is whether late charges incurred by the tenant for his/her failure to pay rent on time may be included in a 3-day notice.
First, as a matter of contract interpretation “rent” usually will exclude items such as late charges and therefore, a 3-day notice pursuant to C.C.P. § 1161(2) should not demand late charges. However, if the contract defines late charges as “rent” or “additional rent” then it is possible that a 3-day notice including late charges will pass court scrutiny. (Residential landlords, be advised that rental units subject Los Angeles rent control rules served with a 3-day notice should not include late charges.) Many standard boilerplate commercial leases will define rent as “any monetary obligation other than the security deposit” and it can be argued at trial that late charges, under such a definition, is deemed rent under the lease and thus a 3-day notice including late charges will pass scrutiny assuming the amount is defined as a “late charge” and distinguished from the rent demanded.
If a late charge cannot be classified as a rent obligation, then a 3-day notice may be served as to late charges due where a rental agreement specifies that the late charges is an independent covenant obligating the tenant to pay the late charges. In such a case, the landlord would serve a 3-day notice pursuant to C.C.P. § 1161(3).
Landlords may either combine a 1161(2) failure to pay rent notice with a 1161(3) breach of covenant/late charge notice in order to comply with the technical requirements of the unlawful detainer statutes, or simply serve separate notices simultaneously and make a demand to cure each breach separately. If combining the two notices of separate breaches, then it is imperative that landlords distinguish the amount due as “rent” from other amounts due such as late charges and also specify that each independent breach must be cured in order to retain possession.
Our Los Angeles Eviction Attorneys prefer initiating eviction proceedings based on a 3-day notice to pay rent and not include late charges where the late charge is a small or nominal amount. If a landlord desires to include late charges and the rental agreement supports the claim as an independent covenant or defines late charges as “additional rent” then we can either serve separate notices or a combined notice in compliance with California’s unlawful detainer statutes. Compliance with the technical requirements of the eviction notice is of the highest importance for landlords and their success at trial.