Mobile Home Eviction Question

[Nanubird]

What is the name of your state? California

Received a 3Day notice to pay or quit on our Mobile Home on Feb 8th. We had delivered a check for rent and a separate check for utilities on the 6th (within the 5-day grace period allowed, along with a late fee). The utility check was post-dated. LL has accepted post-dated checks in the past (we have canceled checks showing this, and never received a late notice for a post-dated check in the past.)

After delivering rent check for March, we received a note from the LL . LL claims they returned the Feb checks with a note stating they don't accept post-dated checks, and they would return the March check via registered mail. We never received the Feb checks or note and believed them to have been accepted, and the matter settled, now we are facing eviction. The checks were not delivered by mail, but were allegedly left in a tube in front of the home. We have canceled the Feb. checks with our bank, and have set aside the Feb. and March rent payments in a savings account to be paid to the landlord. (This March note was not mailed, but was placed in the same tube that the note from Feb was allegedly placed in.)

Also, reading through CA law, it says that if payment is not received (I was looking at Mobile Home law, I don't know if this applies to other rentals, but it should here) within 3 days of the notice, that the notice has to be resent via registered mail if it wasn't sent that way in the first place. The first 3Day notice was sent via regular mail and posted on the door, but we never received a notice via registered mail afterwards (which I think is to inform us that it wasn't rectified?).

Basically, we believed the rent to have been accepted by the LL, but she claims she informed us she wasn't accepting a post-dated check because she left the checks and a note stating she wasn't accepting them in a tube near the mailbox. (We empty that tube regularly because it's always being filled with advertisements... we believe either she forgot to leave the notes and check, or that it was stolen. Either way, we canceled them as soon as we found out about all this.)

Do we have a case here? Her lawyer "advised" us to just get a real estate agent and sell the place, because he's "worked with her for ten years, and when she decides she wants someone out, that's it."What is the name of your state?

 

[Nanubird]

I forgot to mention that this was the second notice within a 12 month period. When the prior notice was issued, the rent check had been delivered just outside the 5 day "late" period allowed by the rental agreement. We spoke to the manager at the time, because the check had been delivered before the notice was posted. She informed us that it was no problem, that we were paid up, but that she had to post the note anyway because the check was late.

So, from prior experience, we had reason to believe that the matter was settled, and that the check was accepted. The fact that the check hadn't been cashed by the end of the month only became a concern just before paying the rent for March, as there have been several times in the past where the rent checks haven't been cashed until the last third of the month.

In a letter included with March's payment, we expressed concern that the checks for February still hadn't been cashed, and the only response we received was the letter informing us that they had returned the checks from February (in a tube in front of the property) and that they would be returning the check from March via registered mail.

The manager refuses to speak to us, and when we spoke with the lawyer he told us that she was advised not to speak with tenants "any longer" because of problems in the past with he-said/she-said. The fact that the lawyer has told us there has been problems in the past with things that she has been alleged to tell tenants in relation to residency, as well as the fact that the check from March is being sent via registered mail, rather than stuck in a tube in front of the property (as was allegedly done with the Feb checks), leads us to believe that they know she's done something wrong. At least in the delivery of those checks.

**I suppose the real question that I'd like answered is do we have a case based on our belief that the rent for February was accepted?** Would a lawyer take this case? Would a judge rule in our favor?

If we HAD received the checks back and the note stating they wouldn't take a post-dated check, we would have just borrowed the money from a family member and replaced the post-dated check with another check that same day. We have our bank balances for Feb showing that the money was there to cover both checks, and that the money for the rent for March was there when that check was written, and has also been there up until the savings account was created to hold all those monies aside to be paid.

We understand that even if we are in the right, the LL probably wants us out and will evict us as soon as she gets another chance, but we are prepared for that. We don't want to have to move and sell our mobile home right now, so we're trying to figure out what (if anything) can be done.

 

[OHlandlord]

I'm having a problem understanding why you would give a postdated check when your rent and utility bill was already late? The only reason to give a postdated check is because the money isn't in the account at the time. And if the money wasn't in the account at the time, then you really didn't pay. A check must be good at the time of writing it. Otherwise it's just a bad check. The date on the check means nothing to the bank. The LL is free to cash it as soon as he receives it. So, was there money in the account to cash the check? If not, you did not pay as you agreed in your lease.

**I suppose the real question that I'd like answered is do we have a case based on our belief that the rent for February was accepted?**

You should have known the Feb. check wasn't accepted since it didn't clear and because you received a 3 day notice 2 days after you submitted the postdated check to them. Now I can't tell you how the notice has to be served for a mobile home in your state, but you obviously got it. You shouldn't have given a post dated check to the LL when your rent & bills were already late. The LL isn't speaking to you because she is in the process of evicting you for non-payment.

 

[Nanubird]

As to your first question, the checks weren't late in the sense that we could be served for them. The rent is due on the 1st, but we have 5 days after that to deliver the checks, and they were delivered on the 6th, along with the late fee allowed in our lease.

The LL has accepted post-dated checks in the past, and the one other time we received the 3day notice (in the 7 years we've lived here) we had also already already given the LL the check, and when we asked her about it she said it was no problem, she had the check and we were paid.

She's also not cashed checks we've given her until almost the end of the month before, so the checks not clearing didn't mean they hadn't been accepted, the money has been in the account all along. We were never informed that the checks we gave to her weren't being accepted, nor did we ever receive the checks back from her. Because of this, why wouldn't we assume that the payment was accepted as it was previously? As far as we knew, she kept the checks we gave to her in payment for rent and for utilities. We weren't informed that she wasn't accepting them until the beginning of March when she informed us that she wasn't accepting the check for March, and that was well after the 3 days were up, so we weren't given the option to make a new payment.

Why would we have to pay her for Feb again after receiving a 3day notice, when we'd already given her the checks for Feb and she never returned them to us or let us know that she wasn't accepting them? If we'd received those checks back and were informed that they weren't being accepted, we would have gone in and paid her that day... but we were not informed of this until a month later.

I understand why the LL isn't speaking to us, we're just wondering if we have an actual argument here, since we acted in good faith that the payment had been accepted?

Thank you for your time, it's very much appreciated.

 

[Zigner]

As to your first question, the checks weren't late. The rent is due on the 1st, but we have 5 days after that to deliver the checks, and they were delivered on the 6th, along with the late fee.

In the real world, rent is due on it's due date and late any time thereafter. Just because you have a grace period before late fees kick in doesn't make the rent payment timely.

When you punch in at work, you probably have a similar situation. You're supposed to be there at 8, but you punch in at 8:02. Payroll doesn't dock you for it, but you are still "late".

 

[Nanubird]

I understand that, but that wasn't my question. I'm asking whether we were correct in believing the checks were accepted because of (1) Past dealings where we were told she has to post the notice even if she's received the payment. (2) Past dealings where she has accepted post-dated checks. And (3) Never receiving the Feb checks back from her, so that we could replace them. (We ended up having to pay to have the checks canceled when we found out that she claimed to have returned them, because we never received them.)

 

[Nanubird]

Also, according to the mobile home laws in CA, they have to send us another copy of the 3day notice via registered mail if we haven't made the payment within the 3 days. They have to send this within 10 days of not receiving the payment after the 3day notice is posted. This wasn't done. Here's what it says specifically, maybe I interpreted incorrectly:

798.55
(c) If the homeowner has not paid the rent due within three days after notice to
the homeowner, and if the first notice was not sent by certified or registered mail
with return receipt requested, a copy of the notice shall again be sent to the legal
owner, each junior lienholder, and the registered owner, if other than the
homeowner, by certified or registered mail with return receipt requested within 10 days after notice to the homeowner. Copies of the notice shall be addressed to
the legal owner, each junior lienholder, and the registered owner at their
addresses, as set forth in the registration card specified in Section 18091.5 of the
Health and Safety Code.



The first notice was posted on the door and was sent via regular mail, not by registered mail. (I am at home all the time, and no one has come to the door with any mail, nor have we received any cards from the post office telling us that they attempted to deliver a registered letter.)

So, because of the things in my previous post, and the fact that they never followed it up with a notice via registered mail (which would have let us know that they did not accept the payment), I feel like we were reasonable in our assumption that the payment was accepted. Aren't we?

 

[OHlandlord]

As to your first question, the checks weren't late in the sense that we could be served for them.

Zigner already answered this once. The rent is late after the first (else you wouldn't have to pay LATE fees for it). Just because he allows you until the 6th as a grace period before pursuing eviction has no effect on the fact that rent is already late.

She's also not cashed checks we've given her until almost the end of the month before, so the checks not clearing didn't mean they hadn't been accepted, the money has been in the account all along. We weren't informed that she wasn't accepting them until the beginning of March

When she cashed the checks herself is immaterial. She has the right to have them in her hand and have the funds available to her on the due date. You have promised to do so as per your agreement. She told you she would not accept the bad checks by serving the 3 day on Feb 8th. This was a sure sign she wasn't accepting postdated checks.

Why would we have to pay her for Feb again after receiving a 3day notice, when we'd already given her the checks for Feb and she never returned them to us or let us know that she wasn't accepting them?

She already told you that those checks had been returned to you in Feb. Perhaps they were stolen from the box, but the LL already stated she didn't have them and hadn't cashed them. Additionally, you stopped payment on them. So you haven't paid rent for Feb. yet. You either pay her again for the rent you haven't paid or you will get evicted.

I understand why the LL isn't speaking to us, we're just wondering if we have an actual argument here, since we acted in good faith that the payment had been accepted? I'm asking whether we were correct in believing the checks were accepted ...

You haven't acted in good faith. The LL informed you on Feb. 8th that your rent was not paid. She served you notice of such. You didn't attempt to fix the problem then at all. You didn't attempt to make sure that month's rent was paid and didn't contact her that whole time. Only when the rent was due again, in March, did you attempt to figure this out. You did nothing to be sure your rent was paid after the LL notified you that it wasn't.
You should have contacted her immediately after receiving notice, and made good on any postdated checks right then. That would have showed good faith.

The statute you quoted no doubt refers to beginning eviction proceedings. Since it doesn't appear they have pursued any further proceedings other than to issue you the first 3 day notice, the LL would have to serve that second certified notice prior to filing eviction with the court. I suggest you go see the LL and pay the outstanding monies you have owed since Feb and any late fees associated with them. Pay them with a regular check (not post dated) and they should be unable to proceed with further eviction since you will be paid up in full. Do not issue any further postdated checks. Those check are the same a non-sufficient fund checks. From now on pay with either cash, MOs, or a personal check with sufficient funds in the account at the time of writing.

 

[Zigner]

OHLandlord gives solid advice...
However, MY advice would be to start looking for a new place to live.

 

[Nanubird]

Thank you all for your advice, I really do appreciate it. I just have one more question.

If we take her a bank check that covers all the monies owed for Feb and March, along with any late fees, does she have to accept it since she hasn't filed the eviction yet? Or can she refuse it and just go forward with the eviction?

The problem with just finding a new place to live is that we own the Mobile Home here, we're just paying space rent. We would actually need to sell the Mobile Home before we could move. We've lived here for over 7 years now, and this is only the second time in 7 years where we've ever been late on the rent, and we really don't understand why she won't take our payment, or even discuss this with us at all. All her lawyer said was that he'd let her know we had the money to pay her, and we haven't heard anything back from him.

 

[OHlandlord]

I can't tell you if she has to accept it or not. Some states are no second chance states. Once you are late the LL doen't have to ever accept rent after that. My states is like that. Once you are late, you can be out. I don't have to accept the late rent. Other states say the LL must accept it.

I suggest you read your state law on mobile home evictions to see if the LL must accept it. Even if she doesn't have to, she might accept it anyways. Can't hurt to try. But if she doesn't accept, I'd start looking to move your MH.