Unlike residential unlawful detainer actions, in commercial unlawful detainers the landlord is allowed to provide a three day notice of estimated rent provided the landlord indicates in the notice that it is in fact a reasonable estimate of the amount past due. California Code of Civil Procedure section 1161.1 (e) further provides that there is a presumption that the estimate is reasonable if it is within 20 percent of the amount actually due. If it is not, then it may not support an unlawful detainer for non-payment of rent.
1161.1 is worth reading if you are a tenant facing eviction by a landlord. It also has some interesting prevailing party language. It provides the following:
- “if (1) upon receipt of such a notice claiming an amount identified by the notice as an estimate, the tenant tenders to the landlord within the time for payment required by the notice, the amount which the tenant has reasonably estimated to be due and (2) if at trial it is determined that the amount of rent then due was the amount tendered by the tenant or a lesser amount, the tenant shall be deemed the prevailing party for all purposes.”
What this means is if the landlord provides a three day notice based on a reasonable estimate of the amount due and the tenant subsequently submits a lesser amount and that lesser amount is the amount determined to be due at trial, then the tenant is the prevailing party. Being the prevailing party is important because in most commercial leases there is a prevailing party attorney fee provision that would then allow the tenant to recover its attorneys’ fees in successfully defeating the landlord’s unlawful detainer action.
For help with your commercial unlawful detainer, contact us today. You can call us at (310) 954-1877, or send us a message by either using our Contact Form, or emailing us at email@example.com.
By Zachary Schorr, esq.