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Are e-mail termination notices appropriate?

Published 6:22 pm, Friday, August 2, 2013
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Q: I own several apartment properties in my local city. I find it very convenient to use e-mail to communicate with my tenants, and they seem to enjoy the ease of using the same method to reply to me.

There is no rent control or just cause ordinance in our city, so I follow the general state rules when I need to terminate a tenancy.

However I have run into a problem when I recently decided to terminate one of my month-to-month tenants. Since he had been renting from me for more than a year, I sent him an e-mail telling him I was terminating his tenancy, with a 60-day notice attached.

He sent an e-mail response about a month later telling me he had consulted an attorney who told him that my notice was invalid because I used e-mail and because the notice didn't have the correct language.

Am I wrong, and if so, how do I fix my mistake and properly remove this tenant?

A: Assuming you have correctly researched whether there is a local ordinance requiring just cause to terminate a tenant, you are correct that your action is governed by state law, specifically California Civil Code Section 1946.1.

There are a couple of exceptions, but you are generally correct in your understanding that this statute requires a 60-day written notice to terminate a month-to-month tenancy.

The same statute also specifies the methods for serving termination notices.

It provides two alternatives, certified or registered mail, which you did not use, or following the steps outlined in California Code of Civil Procedure Section 1162. Under Section 1162, you would be required to either personally deliver the notice to the tenant, or personally deliver a copy to another adult at the tenant's residence, followed up with a copy mailed to the tenant, or "affix" a copy to a "conspicuous" place on the property such as the front door, and also deliver a copy to any person residing in the unit if present, followed up with a copy mailed to the tenant. This last method is generally referred to as "nail and mail."

Your decision to send the notice solely by e-mail does not meet any of the alternatives for properly serving a 60-day notice.

Even though convenient, e-mail has not yet been accepted as a replacement for these traditional methods of service, not even as a method to meet the follow-up mailing required by Section 1162.

Of course, you can rely on any method to tell a tenant you would like him to leave, if the tenant voluntarily chooses to vacate. But if a tenant refuses, you next step is to file an unlawful detainer eviction case in Superior Court. That court proceeding requires proof that the notice was properly served, and the judge is supposed to strictly construe the notice requirements, which means you would probably lose that case.

You are better advised to start over with a new 60-day notice served properly. And when you do so, be sure to include the new language now required by new subsection (h) of Section 1946.1. This new section requires that the termination notice include a detailed warning to the tenant about his right to reclaim "abandoned" property at the rental site. This new subsection is probably the missing language your tenant mentioned in his reply to you.

Rent Watch is produced by Project Sentinel. To submit a question, e-mail info@housing.org