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:
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.
By Zachary Schorr, esq.