Legal Question in Landlord & Tenant Law in California

I am a Landlord. My tenants of 3 years did damage that they do not want to pay for. I served them with a notice of increase in rent and deposit that takes effect Aug.1.

They are paid, to date, in rent but previously threatened to stop payment on the "post-dated checks" I was holding (so far they didn't stop payment and I am holding one more check but at the old rent price). They have also threatened to do other damage to the property and have stated that they will not pay a single penny more but will be out by Aug. 1 (I have my doubts now).

Even though initially, I would have liked them to stay and begin paying the increased rent with deposit on Aug. 1, I no longer feel that way and must give them a 60-day notice to end tenancy. If I give it today, July 4, they would be able to stay for 2 more months and not legally have to move until Sept. 4.

My dilemma is that I do not know the right thing to do.

I am still entitled to rent during the time they stay. So if they do not move on Aug 1 as they "said" (but not with written notice), should I, if it is still good, cash the check at the old rate and serve them a 3-day notice to come up with the remainder? do I wait three days before filing at the court to give them time to pay? or would I file immediately? The California Guide to Tenants and Landlords book doesn't cover what is to be done next.

Or should I not cash the check, expecting them to be moved out Aug 1, but finding them there, serve the 3-day notice that way? Then I would have no money for the time they are in the rental.

I read in the book, that I can give a 3-day notice if they "violate any provision of the rental agreement or if they do material damage to the rental property", both of which have been done already.

What is the best thing for me to do?

I don't want to do anything illegal, but it seems to me that I should get some sort of money while they are there, therefore cashing an insufficient check would help.

Thank you

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Asked on 7/04/12, 8:05 pm

1 Answer from Attorneys
George Shers Law Offices of Georges H. Shers

Your situation clearly is complicated. "Material damage" is a vague concept and since judges tend to be pro-tenant overall, it is risky to base a three day notice on such a cause of action. A judge might say that you hold a deposit to cover that eventuality. Since the easiest matter for you will be if they move out August 1st, it is best for you to wait until then.

It is not clear to me that you can also increase the deposit but since you are changing the terms of the agreement I suppose you may be able to change that term also and not be bound by the original charge. You could then cash the check you hold for August 2012 and give them a three day notice if they do not pay the increase [but the notice should only state the actual amount owed and not the amount stated on the new rental agreement]. You can not do anything them for three full days, at which time you would file for unlawful detainer based upon their not paying the correct amount of rent

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Answered on 7/04/12, 8:51 pm


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