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Commercial Lease Notice Provisions Strictly Construed

By default, a landlord seeking to evict a tenant must serve a notice that complies with California Code of Civil Procedure §§ 1161 and 1162. These notice requirements cannot be changed or waived in the context of a residential lease. However, parties to a commercial lease can designate in the lease any form of service that they can agree upon, including email service. For most landlords, agreeing to as many means of service as possible is preferred.   More often than not, the landlord will be the party giving notice.  Accordingly, the landlord will benefit from having multiples types of service available to effectuate service.   Where possible, commercial leases should include service by: (1) mail, (2) facsimile, (3) email, and (4) in person. No matter what

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Posted in Commercial Lease

Impact of a Tenant’s Bankruptcy During Lease Term

A tenant’s bankruptcy or insolvency does not automatically terminate an unexpired lease of real property. It does not matter whether the lease expressly authorizes early termination in the case that the tenant becomes insolvent or bankrupt, because these types of lease clauses are unenforceable.  [11 USC § 365(e); In re Cole (9th Cir. BAP 1998) 226 BR 647, 652.] When a tenant files for bankruptcy this typically triggers an automatic stay of “the enforcement against the debtor or property of the estate of a judgment obtained before commencement of the bankruptcy case and “any act to obtain possession of property of the estate or of property from the estate . . .” [11 USC  §§§ 362 (a)(1), 362 (a)(2), & 362 (a)(3).]  Accordingly, as of the tenant’s

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Posted in Lease Bankruptcy, Leases

Terminating the Tenancy via a 60-Day Notice prior to filing an Unlawful Detainer

  Civil Code section 1946.1 requires that a landlord give a residential non-fixed term tenant who has resided in the unit for at least one year at least 60-days’ notice of termination. If a jurisdiction is not subject to local rent control, a landlord typically does not need to state his or her reason for serving the notice—the notice to terminate can be served for any reason or no reason at all. (See People ex rel. Dept. of Transp. v. Lucero (1980) 114 Cal.3d 166, 174-176.) However, a landlord is not permitted to evict a tenant for retaliatory reasons. (Civ. Code § 1942.5) Accordingly, a landlord can avoid a successful retaliatory eviction defense by providing the tenant a “good faith” reason for his or her

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Posted in Leases, Residential Lease, Residential Lease Unlawful Detainer

A Reasonable Estimate of Rent Due in Commercial Unlawful Detainers

Our commercial unlawful detainers frequently deal with complex demands for rent due.  In fact, we recently had a case where the landlord sought over $1 million in past rent allegedly due from our client over the course of less than one year.  When the numbers are this large or the rent calculations are complex it can be difficult to determine the exact amount of rent due as is required in residential unlawful detainer action.   There general rule is that “because of the summary nature of an unlawful detainer action, a notice is valid only if the lessor strictly complies with the statutorily mandated notice requirements.”  (Bevill v. Zoura, (2001) 27 Cal.App.4th at 697).  In order for a lease to be forfeited at common law, the landlord was

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Posted in Commercial Lease Unlawful Detainer

Notice to Pay or Quit based on Reasonable Estimate of Rent Due in Commercial Unlawful Detainers

Last month we discussed the importance of properly serving a notice to pay rent or quit in a commercial unlawful detainer setting where the lease has specific notice provisions.  Another area where commercial and residential unlawful detainer actions differ is how a landlord may state a rent demand on the notice to pay rent or quit.  This is important because we handle both types of unlawful detainer cases in Los Angeles and our Los Angeles based unlawful detainer attorneys understand the intricacies of the statutory procedures for 3 day notices to pay rent or quit. Generally, a notice to pay rent or quit must state the precise amount of rent owed.  (Gages v. Bates (1870) 40 Cal. 384).  This requirement always applies in the residential unlawful detainer setting – any

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Posted in Commercial Lease Unlawful Detainer, Notice to Quit

Proper Service of Eviction Notices in Commercial Unlawful Detainers

Unlawful detainer cases are fast track court proceedings.  They are primarily used by landlords to evict non-paying tenants or tenants who have materially breached the terms of the lease.  However, before filing a lawsuit for unlawful detainer, landlords must properly serve the tenant with a written notice that explains why the tenant is being evicted. (Bevill v. Zoura (1994) 27 Cal.App.4th 694, 697). The unlawful detainer statutes have strict requirements governing the time and methods of service of eviction notices.   However, in a commercial lease setting, the landlord and commercial tenant may lawfully agree to notice provisions that are different that those provided in the statutory provisions governing unlawful detainer. (Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc. (2010) 185 Cal.App.4th 744, 750).  In fact,

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Posted in Commercial Lease Unlawful Detainer, Commercial Real Estate

Effect of Bankruptcy Filing on Residential Unlawful Detainer

The general rule that the filing of a bankruptcy petition results in an automatic stay in a lawsuit and post-judgment collection is not as straightforward in the context of residential unlawful detainer actions in California.   The rule for unlawful detainers in California is a residential tenant’s bankruptcy filing does not stay eviction under an unlawful detainer judgment obtained  before the filing of the bankruptcy.  11 USC section 362(b)(22). In other words, if the landlord has already obtained a judgment against the tenant in an unlawful detainer action, the tenant’s post-judgment filing of a bankruptcy petition will not result in an automatic stay.  In that situation the landlord will still be able to obtain a writ of possession and recapture possession of the property. The

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Posted in Lease Bankruptcy, Real Estate Attorney Los Angeles, Residential Lease Unlawful Detainer

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Zachary D. Schorr has been named to the Southern California Super Lawyers (Rising Stars) list for attorneys in Real Estate for 5 straight years - 2012, 2013, 2014, 2015 and 2016. Each year, no more than 2.5 percent of the lawyers in the state receive this honor. In 2016 he was also included as one of the top 100 lawyers in Southern California in this category. The selection for this respected list is made by the research team at Super Lawyers.

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