As a landlord, there will always be times you will need to give notices to your tenants. It could be just a 48-Hr Notice of Intent to Enter so you can perform repairs, change the battery in the smoke detector, or to check for leaks. It could be a posting that could lead to eviction. This is one topic that is a MUST KNOW for each and every landlord, and the details are very important. Cutting class on this subject could lead to serious time delays and added costs.
Serving notices to your tenants is one of just a few landlord/tenant interactions that are what’s called a “strictly construed” activity. That means that in order to preserve your landlord rights, you must serve the notice absolutely correctly and that there is little or no room for error. It also means that failure to adhere to the service methods prescribed in the law could result in dismissal of the action you are hoping to achieve. Serving notices to your tenant is often just referred to as “Service.”
There are four acceptable ways to serve a notice to a tenant:
- Delivering a copy personally to the tenant.
LLA notices are court-ready, meaning they are three-part, self-carbon forms, and the landlord should always keep the original, the white copy. Proving that you have served the notice in person is possibly the most difficult of the three ways. A tenant can quite easily deny being given the notice, thereby hoping to delay an eviction. So when serving a notice in person, you should get the signature of the tenant on the white copy. Date and or initial it yourself to show it was served. If there is more than one tenant, each tenant has their own notice and should sign their own notice separately. Or to prove service, you can take a witness with you or snap a photo of the signing on your cell phone.
- Serving to another person at the rental unit.
If the tenant is not available and doesn’t seem as if you will be able to find them at home to serve them, but another person of suitable age and discretion is present, then you may give that person the notice, get their signature and/or take the photo of the signing AND mail a copy of the notice to the tenant. This could be a teen member of the family that is mature enough and dependable enough to pass along the notice(s) to parents. It could be a baby-sitter or other adult person not living there and not on the lease. But the tenant can always claim not to have received the notice, even though you have the signature of the recipient, so the added duty of mailing the notice is necessary. Don’t skip that step if you serve the notice to anyone other than the tenants.
Regular first-class mail is all that is required. Tenants usually do not sign for registered or certified mail anyway, and the extra money spent for special delivery services is wasted. Sometimes a delay could mean an additional month before you can serve the notice again. Refusing service is a favorite tactic to try and get one more month of free rent in some cases. When mailing a notice, one day is added by rule to the response from the tenant. In effect, a 3-Day Notice becomes a four-day notice, etc. The best way to mail a notice is “Proof of Mailing” or “Certificate of Mailing.”
The U.S. Postal Service offers a “Certificate of Mailing/Proof of Mailing” service that provides proof that you have mailed documents to a particular individual. You leave the post office with a receipt indicating the name, address, and date you mailed the envelope. A Proof of Mailing certificate or Certificate of Mailing costs only $1.15 or so and includes the first class postage affixed to the envelope. No signature is required by a recipient, as is the case with the much more expensive Certified or Registered Mail. Since most landlords know that a tenant who owes rent or suspects they may receiving a notice from their landlord or property manager will refuse to sign anything from the mail carrier, a Proof of Mailing gets the notice delivered with an official certificate in hand, but without the necessity to have the tenant sign for it.
And remember, if the envelope is returned by the postal service, DO NOT open it!! Opening the envelope erases that proof that what was inside the envelope was mailed on that date. A sealed envelope, opened by the judge during a Small Claims or eviction hearing, is the proof you need. An opened envelope is no evidence at all, according to the court.
If using this method, notices MUST be posted in a conspicuous manner. This requirement is due to the complaint by tenants, valid or not, that a notice blew away, was taken down by children or others, that it was posted on the wrong door, and other similar excuses for not receiving the notice. By conspicuous, the court means that anyone should be able to walk up and read it, so that means the tenant is sure to see it and know what it is. Therefore, do not put it in an envelope, slide it under the door or through a mail slot, etc. Taping it to the front door of a residence is the preferred method of posting. Many landlords feel this exposes personal information to anyone approaching the door, but over the years the many, many excuses by tenants and tenant attorneys has lead to these posting rules and these are strictly constructed. If you feel awkward about posting the notice face-out on the front door, then mailing the notice and/or personal service, or service by a process server are choices for you. The next step to take after posting the notice(s) is to take two pictures of the posting. Do not skip this step since there are so often accusations that a notice was not posted at all. The first photo is of the notice itself and should be readable as to what type it was (3-Day Pay and Vacate, etc.). Then step away from the unit far enough so that a house number, apartment number or picture of the unit is clearly identifiable. This way, a tenant can’t claim that you were too busy to post it on their door and put it on your own door instead.
- Using a professional process server to deliver the notice.
An experienced professional process server can, for very little money, hand deliver a notice to your tenant. Sometimes having a third party hand them the Pay or Vacate Notice emphasizes that this is, indeed, a serious legal matter and that other people are involved. Some tenants think a small landlord is just a guy or gal with no power and is vulnerable, perhaps open to bullying or intimidation. A large, powerful-looking process server can make a very clear statement. The Landlord Association has members who are licensed, experienced process servers and charge LLA members ($45 price subject to change) for complete service (rather than the usual $75-$90 which is the regular fee.)