§2.02 Three-Day Notices

The three-day notice is used when the tenant has breached a covenant of the rental agreement, either by defaulting on the rent or committing some other breach. [See CCP §1161(3).] There are three options:

• 3-day notice to pay or quit—for use when the tenant has defaulted on the rent. [See CCP §1161(2).]
• 3-day notice to perform or quit—for use when the tenant has breached a covenant in the agreement, other than nonpayment of rent, that can be cured. [See CCP §1161(3).]
• 3-day notice to quit—for use when the tenant has breached a covenant in the rental agreement that cannot be cured. [See CCP §1161(4).]

The 3-day notice for a residential tenancy must not overstate the amount of rent due and may not be served until after the stated amount becomes due. [See CCP §1161(2); Lydon v Beach (1928) 89 CA 69, 74.] If the amount of rent on the notice is overstated, the notice is fatally defective and will not support a UD action. [Ernst Enter., Inc. v Sun Valley Gasoline, Inc. (1983) 139 CA3d 355, 359.] By contrast, a three-day notice understating the amount of rent due is not fatal to the action. [See Cavanaugh v High (1960) 182 CA2d 714, 722.]

Note that the “precise sum of rent due” rule does not apply to commercial tenancies. For them the notice may claim an amount that is “reasonably estimated.” [CCP §1161.1(a).] But even in the commercial context, a demand that exceeds 20 percent of the amount due is defective and will not support a UD judgment. [See CCP §1161.1(e); WDT-Winchester v Nilsson (1994) 27 CA4th 516, 534.]

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