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The Perils of Perfecting Service of Notice

Mind Your Business:

Follow the rules and win every time – ignore the rules and you can lose big.

By Tia Politi, Property Manager with Acorn Property Management

A recent eviction case in Multnomah County cast a spotlight on the potential pitfalls of getting your residents properly served. We received the following notice from Multifamily NW, our urban counterpart in Oregon:  A Multnomah County Circuit judge ruled yesterday that the post-and-mail language in the Multifamily NW rental agreement is defective as a matter of law. He ruled that designating the “main entrance of the complex office” as the place to post notices to the landlord is not describing the place “with particularity” as required by statute. This makes any post-and-mail notice to the tenant invalid. This ruling was in spite of the fact that the complex only had a single, clearly designated office with only one entrance. The judge did not give clear guidance on what he thought would be a more “particular” description but did say that including the office address was probably required (even though the statute does not require an address).

So how can you prevent this type of outcome when serving notice to your residents? First, know the law and second, evaluate each situation with your residents in regards to service of notice with a critical eye. The notice you serve may become the basis for legal action.

In order to have the right to post-and-mail a legal notice to your tenant, you must meet three criteria: 1) The right to do so must be included in your written month-to-month or fixed-term lease rental agreement, or the month-to-month residents must have been served (properly, of course) a 30-day notice in change of terms allowing for this type of service. 2) You must provide reciprocity to your resident allowing them to likewise serve notice upon you. This requires including in your rental agreement or Notice of Change in Terms, a physical address described “with particularity” for them to post-and-mail notices to you. That physical address must be available 24-hours a day, 365 days a year, and may not be the door of the rental dwelling itself as folks used to do in order to not disclose their physical address to their resident. 3) The physical address must be located a reasonable distance from the dwelling unit.

What if you don’t care to let your tenants know your physical address? First of all, remember that if you don’t have a PO Box, your address is public record on the Department of Assessment and Taxation website. Also, the address does not have to be your home. It can be any physical address such as your place of business, or another designated physical address, just not a PO Box.

Technical details in service of notice create problems for landlords in court all the time, which is why most attorneys serve their notices by mail only. The easiest slam-dunk win for a tenant in eviction court is “the notice is wrong.” That can include problems with your preparation of the notice itself – called a defective notice – or by serving the notice incorrectly – called imperfect service.

I recently had a rental owner come to me wanting to evict their residents for non-payment of rent. The right to post-and-mail their notices was listed in the written rental agreement, the address provided by the owner was located a reasonable distance from the dwelling unit, and the residents had appropriate transportation, were able-bodied and physically capable of providing reciprocal service to their landlord at that location. Believing all the criteria were met, the notice was served by post-and-mail, the residents failed to tender rent and the case ended up in court. The residents requested a trial and the owner began to prepare. Looking at their case with a critical eye, we were discussing any possible weak spots in the case. During the discussion, the landlord mentioned a gate at the property. What?!!  A gate? Oh, yeah, they had forgotten to mention the very important fact that a locked gate prevented access to the main entrance of their stated physical address. The case ended up being settled without a trial, but this one tiny detail could have resulted in a spectacular loss for them even though the residents clearly owed the money specified in the notice, the notice was otherwise perfect, and they acknowledged receiving it. So, how do you serve notice on your tenant and sleep at night?

Personal Delivery – To perfect personal service, you or your agent must hand a separate copy of the notice to each named party and attempt to serve any unnamed parties. The resident does not need to take the notice from your hand, but you must at least make eye contact. You may then drop the notice at their feet if they refuse to take if from your hand and the notice is considered served. You must do the same for each other individual; otherwise, your notice is effective for the party or parties you did serve, but possibly not binding on any others you were unable to serve. I don’t recommend this type of service unless you have only one occupant. Even then, if they are trying to avoid being served, you will have to overcome that obstacle as well, costing you more time and money than other types of service.

In one positive case out of Portland, though, an apartment manager was attempting to personally serve a man at a complex. He knocked on the door and the man’s young son opened the door. With the door open, the manager made eye contact with the father who was lying on the couch and told him he had a notice to serve to him. The man immediately ordered his son to close the door, and the manager subsequently slid the notice under the door. The notice was not cured and the case went to eviction court. The defendant’s attorney argued among other things, that service had not been perfected because he slid the notice under the door, but the judge ruled in favor of the plaintiff, as eye contact had been made, and the defendant clearly knew the notice was for him.

Post-and-Mail – Post-and-mail service requires that you post one copy of your notice on the “main entrance” to the dwelling unit, and place another copy addressed to the named parties and all other occupants in a first class mail receptacle at essentially the same time. This type of service allows you to avoid the extra three days for mailing, but comes with its own set of perils beyond the examples above. In addition to having the right to do so listed in your rental agreement and naming “with particularity” a physical address available at all times, there is the “reasonable distance from the dwelling unit” problem to address. What’s reasonable? That is different for each resident and each property.

I once managed a property located within about a mile from the office where I worked, but the resident was morbidly obese and disabled by the condition. Even though the right was listed in our rental agreement and we had a physical address named in the rental agreement that met the legal requirements, it was not reasonable to believe this person had the capacity to reciprocate due to her lack of transportation and severe physical limitations. I chose to only mail notices to her and add the three days for mailing. You must look at each residency and your rights with this type of critical eye. I have some residents in wheelchairs. Our office sits in a historical home and the historical society won’t allow us to install a ramp as they say it would alter the historic character of the building. In those cases, I don’t post-and-mail because there’s no way these residents have the ability to climb the stairs to our door. The ability or lack of ability to achieve reciprocity is a key component in having the right to post-and-mail notices to your residents.

And don’t forget the part about the main entrance. Just what constitutes a main entrance can be a source of argument as well. For many people, the back door is the main entrance they use. If in doubt, post notices on every entry door accessible to the public. And, what do you do when the tenant has a locked gate? I would take a chance of posting the gate as it could be argued that the resident prevented access to the main entrance, thereby designating the gate as the main entrance, but I don’t know how it would go in court if this were challenged.

Mail Only – Mailed-only notices are the safest and most reliable way to serve notices. While this method does cost you three days before the notice becomes effective, you will have fewer worries about technicalities costing you a court defeat. However, there are perils with mailed notices that you should be aware of. I used to mail one notice to all parties, until I was challenged on this practice by a tenant attorney who claimed that my failure to mail a separate notice to each named party and a separate one to “All Other Occupants” resulted in a deficiency in service. We settled the case, the defendant failed to perform and I got my judgment, but it raised the question in my mind whether that was true. I asked a prominent local landlord attorney about this and he told me that while there is no current case law that addresses this issue that he is aware of, when he is mailing notices, he does mail separate copies to each party and one addressed to All Other Occupants, to avoid giving a potential defense for imperfect service to the opposing party. That’s all I needed to start mailing notices in that exact fashion.

By far the most common error with mailed notices is the failure to send the notice by first class mail. I am helping a rental owner right now who served a proper notice to vacate to her tenant by mail only, but sent it certified mail. The resident willingly signed the return receipt acknowledging that she received the notice, but did not move out and has stopped communicating. The owner will lose in court if they file on that notice and the tenant asserts a defense of imperfect service. Heck, there’s even a signed document proving the owner sent it the wrong way. This means starting all over again with a new 60-day no-cause notice, and delaying the planned renovation and sale of the property. All notices to your residents must be by first class mail only. It may seem counter-intuitive, but that’s the law. If you want proof that you mailed something by first class mail, you may purchase a “proof of mailing” certificate at the post office. It’s inexpensive and if it will ease your mind, do it.

The other issue with mailed-only notices is being sure the tenant receives the notice. The law doesn’t say you have to ensure the tenant receives the notice, only that you mailed it and calculated your time properly, but the reality is that while most mail arrives within a day or two of mailing, that isn’t always the case. Mail gets lost or delayed all the time, which is why I recommend a courtesy posting. This practice can reduce the possibility of your tenants claiming in court that they never got the notice. While this additional posting is not a legal service of notice (and is clearly not required under the law) it does make it less likely they will claim they never got it. And while this claim is rarely if ever successful, a lot of things in the courtroom are open to a judge’s discretion. You want to do whatever you can to prevent offering any technical defenses to your tenant.

Another concern with mailing notices is your resident having an alternate mailing address. It’s important to ask the question at the outset of the tenancy, and the law requires them to disclose that to you, but I had tenants in one of my rentals who did not tell me and I forgot to ask, but they did put their PO Box return address on their envelope every time they paid rent. I made note of that and had no problems, but I could foresee a possibility that a judge could rule in favor of a tenant who made a practice of that, claiming that you should have noticed or asked about it.

Another obstacle to mailed-only notices can be the lack of a mail receptacle. I once tried to serve a notice for a client, who had failed to provide a mail box or slot at the rental property and he had not gotten any alternate mailing address for them. By the time he came to me, the relationship between them had soured and they would not answer the door or return any of his calls or emails. So, how was he supposed to get them served? I went and attempted to personally serve them, but 15 minutes of sustained knocking failed to garner any response. He was forced to put the property under surveillance and wait for them to come out. After many hours, he was able to accomplish personal service, but what a pain. Make sure there’s a mail box or mail slot at the property or get an alternate mailing address before you hand over keys.

Notices to your residents are legal documents and they must meet legal requirements – don’t let your tenant beat you on a technicality. Losing an eviction trial, paying for your tenant’s attorney, and having a judgment against you that’s on your record for 10 years, impacting your credit, has got to be one of the more frustrating and costly experiences for a rental owner. Know the rules and follow them exactly or you may experience a very painful outcome.

This column offers general suggestions only and is no substitute for professional legal counsel. Please consult an attorney for advice related to your specific situation.

Posted by: Acorn Property Management on December 27, 2016
Posted in: Uncategorized