Legal Question in Landlord & Tenant Law in California

*About the statement of amount due on pay or quit notices*

I live a rent-controlled apt. in Oakland, CA that falls under a Just Cause for eviction Ordinance. I got a 3-day notice to pay or quit (by nail and mail) that subsequently turned into a UD action. When I got the 3-day notice by mail it was attached to a letter demanding a much larger amount than on the notice and that i didn't owe. Landlord filed the notice but not the letter with the board within 10 days.

1. Can I base a defense on those facts on the grounds of

a. non-compliance with Oakland ordinance, or

b. the letter is also a notice, and as such it overstates rent due and conflicts with the "3-day Notice", or

c. at least the letter causes enough confusion that it voids the notice it had accompanied

a. Non-compliance with Oakland ordinance:

8.22.360 B.7 of the ordinance says:

"Within ten (10) days of service of a notice terminating tenancy upon a tenant, a copy of the same notice and ***any accompanying materials*** must be filed with the Rent Board...Failure to file the notice within ten (10) days of service shall be a defense to any unlawful detainer action."

(This isn't merely a technical objection, because notices shouldn't overstate rent due, so that tenants aren't confused, leading to unnecessary litigation. An ordinance that requires accompanying papers to be filed seems to work hand-in-glove with that purpose.)

b. Letter is also a notice

Alternatively the letter could be thought of as a second notice to pay or quit because a pay-or-quit notice only has to include a demand to pay rent or quit without a mention of the time period (3 days) per Berryman v Gibson (1908).

If 2 conflicting 3-day notices are served simultaneously, they're void because of the confusion they cause the tenant, even if one was correct. [Housing Auth. v Cortez (Alameda Super Ct, App Dep't, Aug. 1, 1977, Civ 973)]

c. The attached letter causes the type of confusion that it would as a second notice, hence the same reasoning applies.

2. Finally, if the rent board rules that i'm entitled to a rent reduction due recent dimunition of services, does that mean that the formerly correct pay-or-quit notice now overstates rent due (and therefore should be tossed out)?

Asked on 9/02/13, 9:43 pm

1 Answer from Attorneys

Timothy McCormick Libris Solutions - Dispute Resolution Services

1. a-c. No. The landlord is actually dotting their I's and crossing their T's and doing it exactly right. It is illegal to demand more in the 3-day notice than simple rent due, because it is illegal to evict for other monetary breaches of the lease obligations. As long as you pay your rent, they can't evict for non-payment of other amounts. If you pay your rent they have to take you to small claims for other amounts they say you owe. If you don't pay your rent AND don't pay other amounts, they can collect it all in the UD, but under two separate causes of action. So they not only are allowed to, they are required to demand only the rent in the 3-day notice and then give you separate notice of all amounts they claim you owe. Since the rent board only deals with the eviction issue, they only have to give the rent board the 3-day.

2. No, because it was correct when given. Your rent is your rent until the rent board says it is less.

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Answered on 9/04/13, 11:08 am

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