Guest post by: Michele Trausch, Esq, Partner, Hanson Bridgett LLP
By now, nearly all Executive Directors and Managers of Licensed Assisted Living communities know that certain language must go into a 30-day Notice of Eviction and that if they are done wrong the consequences can be significant.
But what happens if the 30 days in the Notice comes and goes and the problem resident remains? If the Community decides to move forward with an eviction, its lawyer will need the Notice to file a Complaint in the Superior Court. But if the Notice is defective, the Court may dismiss the Complaint which means that the Community would need to start over from the beginning with a new Notice which obviously translates into lost time and unnecessary expense. Common 30 Day Notice Defects Here are three relatively common defects we have seen in Notices:
1. NON-PAYMENT NOTICES: PAY OR QUIT - Title 22 and the Health & Safety Code statute expressly provide that a Community may terminate a resident for failure to pay the rate for basic services within ten days after it is due. But the Superior Court may rely on other statutes that actually control landlord-tenant disputes; those provide that the "tenant" must be given the opportunity to cure a default of non-payment. We use the landlord-tenant body of laws when turning to the Court system to complete the eviction process. We therefore recommend that the Notice be in the form of "pay or quit" rather than simply "terminate."
2. WHO GETS THE NOTICE? - When a resident has dementia and/or there is a Power of Attorney in place, we often seen the Notice addressed to the Responsible Person or a family member. This will be problematic if the case proceeds to Court. The goal of the action in Court is to regain possession of the apartment and the resident—competent or not—is the person in possession. Therefore, the Notice needs to be addressed to the resident and given to the resident as the Court will want to determine that the resident has had proper notice of the eviction process. Title 22 provides that a Responsible Person be given a copy of the Notice and a person holding a Power of Attorney should be given a copy as well. But the Notice itself needs to be directed to the resident and given to him or her.
3. NON-PAYMENT NOTICES: CALCULATION OF AMOUNTS DUE - If the Notice is based on failure to pay the rate for basic services, the question to ask is: "What are basic services?" Most Resident Agreements do not use the phrase "basic services." Instead, they refer to "monthly fees" or "care charges" or other terms. The Agreement must be read carefully to determine which charges can actually be defined as "basic services" and these are the only charges that should be claimed in the 30-Day Notice. In general, incidental charges such as beauty salon, guest meals, and late charges are not appropriate. Including these—unless the Agreement allows them to be claimed as basic services—can result in a Court dismissing the Complaint based on a defective Notice.
In our experience, the majority of residents served with a 30-Day Notice to Terminate will voluntarily relocate before Court action is needed. For the few times that a Community may need to turn to the Court, it is vital that the Notice be done right the first time!
Have you had to evict a resident? How did it go?