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Antenello v. Bassillius, Addendum to Lease by Landlord, is Not a Tenant Notice to Terminate


A written instrument given to a defendant-tenant by a plaintiff-landlord and that the defendant-tenant signs and that contains words stating that the defendant-tenant agrees that the lease is terminated at a specific date is not a valid tenant notice of intent to terminate tenancy to constitute a just cause for eviction under the Tenant Protection Act of 2019, codified at Civil Code section 1946.2(b)(1)(K), because it was created by a landlord, not served as required by Code of Civil Procedure section 1162, and the plain language of the written instrument indicated that another instrument would be the notice.

Substantive Facts

Plaintiff, Attenello owned real property that he rented, as a landlord, to tenant, Bassillius. At a certain point in time, Bassilius stopped paying the full amount of rent. Plaintiff and Defendant jointly applied for rent relief. Plaintiff and Defendant each signed a written instrument that was created using a California Association of Realtors form. Inter alia, that Form stated that tenant-Defendant agreed that the lease was terminated effective on a specific date in the future, as well as stating certain conditions for rent forgiveness by landlord-Plaintiff. Further words on that agreement stated that if those conditions did not occur, “…Landlord may file an unlawful detainer action for possession pursuant to, and after complying with, Civil Code § 1946.2(b)(1)(K).” Not all of the conditions occurred. Defendant did not vacate.

Procedural Facts

Plaintiff filed an unlawful detainer. Defendant demurred, on failure of proper notice per Civil Code section 1946.2(b)(1)(K). The trial court sustained demurrer without leave to amend. Plaintiff appealed.

Applicable Rules

The Tenant Protection Act of 2019, codified at Civil Codde section 1946.2 prohibits a landlord from terminating a tenancy without “just cause” for a tenant who “has continuously and lawfully occupied a residential real property for 12 months. . . .”  (§ 1946.2, subd. (a).)

To plead a valid unlawful detainer claim, the complaint must allege that the tenancy was terminated for “just cause.”  (See id., (b)(1); Code Civ. Proc., § 1166; Friedman et al., Cal. Prac. Guide Landlord-Tenant (The Rutter Group 2021) ¶ 8:80.1.)

“Just cause” to terminate a tenancy includes, “When a tenant fails to deliver possession of residential real property after providing the owner written notice as provided in Section 1946 of the tenant’s intention to terminate the hiring of the real property, or makes a written offer to surrender that is accepted in writing by the landlord, but fails to deliver possession at the time specified in that written notice as described in paragraph (5) of Section 1161 of the Code of Civil Procedure[[1]].”  (§ 1946.2, subd

Losing Party’s Argument

“Plaintiff contend[ed that] the Agreement conforms to the rules set forth in section 1946.2, subdivision (b)(1)(K) of the Tenant Protection Act of 2019, so as to permit the filing of a complaint for unlawful detainer.”

Court’s Analysis / Application

To have just cause under Civil Code section 1946.2(b)(1)(K), there must be valid and bona fide notice of intent to terminate the tenancy from tenant.

One, as applied, here, the agreement was from landlord, not tenant.

Two, even if the Agreement were a notice from the tenant, it was not served as required by the law. “in the manner prescribed in Section 1162 of the Code of Civil Procedure[[1]] or by sending a copy by certified or registered mail addressed to the other party. . . .” Notices under the Unlawful Detainer Act must be generally be served by personal delivery, substituted service, or by post and mail.  (Code Civ. Code, § 1162, subd. (a)(1)-(3).)

Third, the words, “after complying with,” indicates a separate act of compliance with section 1946.2 that is not expressly satisfied by the Agreement.  Also, statutory notices procedures must be strictly adhered to.  (See Stancil v. Superior Court (2021) 11 Cal.5th 381, 394-395.)  For the reasons discussed above, the allegations in the complaint and the Agreement do not reflect strict compliance with section 1946.2.


The Appeal Court sustained the demurrer to landlord-Plaintiff’s unlawful detainer complaint, without leave to amend.

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