What is the Tenant's Right to Cure in California?
Full Question:
After you are served a notice to vacate by writ of possession, is the ability to pay the outstanding money owed to the landlord to rectify the situation and continue with the terms set forth in the lease or will I still need to vacate?
07/10/2009 |
Category: Landlord Ten... ยป Lease Termin... |
State: California |
#17478
Answer:
The answer will depend on whether you were served a three day notice with a right to cure or not. The right to cure refers to the tenant's ability to correct the violation, such as by paying rent. If your landlord properly serves you a three-day notice because you haven't paid the rent, you must either pay the full amount of rent that is due or vacate the rental unit by the end of the third day, unless you have a legal basis for not paying rent, such as the landlord's failure to maintain the property.
If you decide to pay the rent that is due, it's best to call the landlord or the landlord's agent immediately. Tell the landlord or agent that you intend to pay the amount demanded in the notice (if it is correct) and make arrangements for payment. You must pay the rent by the end of the third day. You should pay the unpaid rent by cashier's check, money order, or cash, and get a receipt that shows the date and the amount of the payment. The landlord normally cannot require that the tenant pay the past-due rent in cash
Even if the notice does not state that you can correct the problem, you can try to persuade the landlord that you will correct the problem and be a good tenant if the landlord agrees to your staying. However, even if the late payment is waived, if there is another violation, the landlord probably will serve you with another three-day notice, or with a 30-day notice.
The following is a CA law:
1161. A tenant of real property, for a term less than life, or the
executor or administrator of his or her estate heretofore qualified
and now acting or hereafter to be qualified and act, is guilty of
unlawful detainer:
1. When he or she continues in possession, in person or by
subtenant, of the property, or any part thereof, after the expiration
of the term for which it is let to him or her; provided the
expiration is of a nondefault nature however brought about without
the permission of his or her landlord, or the successor in estate of
his or her landlord, if applicable; including the case where the
person to be removed became the occupant of the premises as a
servant, employee, agent, or licensee and the relation of master and
servant, or employer and employee, or principal and agent, or
licensor and licensee, has been lawfully terminated or the time fixed
for occupancy by the agreement between the parties has expired; but
nothing in this subdivision shall be construed as preventing the
removal of the occupant in any other lawful manner; but in case of a
tenancy at will, it must first be terminated by notice, as prescribed
in the Civil Code.
2. When he or she continues in possession, in person or by
subtenant, without the permission of his or her landlord, or the
successor in estate of his or her landlord, if applicable, after
default in the payment of rent, pursuant to the lease or agreement
under which the property is held, and three days' notice, in writing,
requiring its payment, stating the amount which is due, the name,
telephone number, and address of the person to whom the rent payment
shall be made, and, if payment may be made personally, the usual days
and hours that person will be available to receive the payment
(provided that, if the address does not allow for personal delivery,
then it shall be conclusively presumed that upon the mailing of any
rent or notice to the owner by the tenant to the name and address
provided, the notice or rent is deemed received by the owner on the
date posted, if the tenant can show proof of mailing to the name and
address provided by the owner), or the number of an account in a
financial institution into which the rental payment may be made, and
the name and street address of the institution (provided that the
institution is located within five miles of the rental property), or
if an electronic funds transfer procedure has been previously
established, that payment may be made pursuant to that procedure, or
possession of the property, shall have been served upon him or her
and if there is a subtenant in actual occupation of the premises,
also upon the subtenant.
The notice may be served at any time within one year after the
rent becomes due. In all cases of tenancy upon agricultural lands,
where the tenant has held over and retained possession for more than
60 days after the expiration of the term without any demand of
possession or notice to quit by the landlord or the successor in
estate of his or her landlord, if applicable, he or she shall be
deemed to be holding by permission of the landlord or successor in
estate of his or her landlord, if applicable, and shall be entitled
to hold under the terms of the lease for another full year, and shall
not be guilty of an unlawful detainer during that year, and the
holding over for that period shall be taken and construed as a
consent on the part of a tenant to hold for another year.
3. When he or she continues in possession, in person or by
subtenant, after a neglect or failure to perform other conditions or
covenants of the lease or agreement under which the property is held,
including any covenant not to assign or sublet, than the one for the
payment of rent, and three days' notice, in writing, requiring the
performance of such conditions or covenants, or the possession of the
property, shall have been served upon him or her, and if there is a
subtenant in actual occupation of the premises, also, upon the
subtenant. Within three days after the service of the notice, the
tenant, or any subtenant in actual occupation of the premises, or any
mortgagee of the term, or other person interested in its
continuance, may perform the conditions or covenants of the lease or
pay the stipulated rent, as the case may be, and thereby save the
lease from forfeiture; provided, if the conditions and covenants of
the lease, violated by the lessee, cannot afterward be performed,
then no notice, as last prescribed herein, need be given to the
lessee or his or her subtenant, demanding the performance of the
violated conditions or covenants of the lease.
A tenant may take proceedings, similar to those prescribed in this
chapter, to obtain possession of the premises let to a subtenant or
held by a servant, employee, agent, or licensee, in case of his or
her unlawful detention of the premises underlet to him or her or held
by him or her.
4. Any tenant, subtenant, or executor or administrator of his or
her estate heretofore qualified and now acting, or hereafter to be
qualified and act, assigning or subletting or committing waste upon
the demised premises, contrary to the conditions or covenants of his
or her lease, or maintaining, committing, or permitting the
maintenance or commission of a nuisance upon the demised premises or
using the premises for an unlawful purpose, thereby terminates the
lease, and the landlord, or his or her successor in estate, shall
upon service of three days' notice to quit upon the person or persons
in possession, be entitled to restitution of possession of the
demised premises under this chapter. For purposes of this
subdivision, a person who commits an offense included in paragraph
(1) of subdivision (c) of Section 11571.1 of the Health and Safety
Code, or subdivision (c) of Section 3485 of the Civil Code, or uses
the premises to further the purpose of that offense shall be deemed
to have committed a nuisance upon the premises. For purposes of this
subdivision, if a person commits an act of domestic violence as
defined in Section 6211 of the Family Code, sexual assault as defined
in Section 261, 261.5, 262, 286, 288a, or 289 of the Penal Code, or
stalking as defined in Section 1708.7, against another tenant or
subtenant on the premises there is a rebuttable presumption affecting
the burden of proof that the person has committed a nuisance upon
the premises, provided, however, that this shall not apply if the
victim of the act of domestic violence, sexual assault, or stalking,
or a household member of the victim, other than the perpetrator, has
not vacated the premises. This subdivision shall not be construed to
supersede the provisions of the Violence Against Women and Department
of Justice Reauthorization Act of 2005 (Public Law 109-162) that
permit the removal from a lease of a tenant who engages in criminal
acts of physical violence against cotenants.
5. When he or she gives written notice as provided in Section 1946
of the Civil Code of his or her intention to terminate the hiring of
the real property, or makes a written offer to surrender which is
accepted in writing by the landlord, but fails to deliver possession
at the time specified in that written notice, without the permission
of his or her landlord, or the successor in estate of the landlord,
if applicable.
As used in this section, tenant includes any person who hires real
property except those persons whose occupancy is described in
subdivision (b) of Section 1940 of the Civil Code.
This section shall remain in effect only until January 1, 2012,
and as of that date is repealed, unless a later enacted statute, that
is enacted before January 1, 2012, deletes or extends that date.
