Phil Querin Q&A - Which is the best method for serving notices?

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March 10, 2015
Phil Querin
MHCO Attorney
Querin Law

Question.  I understand that there are different methods to serve notices on residents.  Which do you believe is the best method?

 

Answer.  Much depends on circumstances.  Here are your options:

 

There are three acceptable methods:

            (1) Personal delivery;

            (2) First class mail; or

            (3) Only if the lease/rental agreement permits for both landlord and tenant, either party may use “nail and mail.”  This allows a written notice to be sent from the landlord to the tenant by first class mail addressed to the tenant at the premises and a copy of the notice to be attached in a secure manner to the main entrance to that portion of the premises; and

 

Here are the rules for calculating the time periods, depending on the method of service:

(1) Where the time for compliance is measured in days, they are calculated by consecutive calendar days, not including the initial day of service, but including the last day until 12 Midnight of the last day.

(2) Where the time for compliance is measured in hours, they are calculated in consecutive clock hours, beginning immediately upon service.

(3) When “nail and mail” is used for a 72-hour or 144-hour nonpayment notice, the time period for compliance begins at 11:59 p.m. the day the notice is both mailed and attached to the premises. The time period ends 72 hours or 144 hours, as the case may be, after the time started to run at 11:59 p.m. on the day of mailing.

 

Here are some rules of thumb; they may not be for everyone, but they generally work for me.  My approach is to assume that Murphy’s Law is ever-present, so I err on the side of being too cautious.

  1. When calculating days or hours, always add a few extra just to be safe.  Just because it’s called a “72-hour notice,” doesn’t mean you can’t add a few more hours. Same for 24-hour notices.
  2. Don’t forget the additional 3-day period for mailing. It applies to virtually all written notices you give, from 30-day notices, to park closure notices.  I frequently add five days rather than three.
  3.  If you’re going to serve a written notice personally, take a witness, just to avoid the possibility of the resident denying service. If someone other than the tenant comes to the door, I’d think twice about making “substituted service,” as it’s too easy for the person answering to “forget,” and you’ve now got an issue you could have avoided. I suggest finding out when the resident is returning, and come back. Never deliver the notice to a child or teenager – for obvious reasons. If they won’t answer the door, don’t think you can slip it under the door, behind the screen, or drop it in an open window.  Just go back to the office and mail it regular mail.
  4. Never, never, never use certified mail or any other form of delivery like UPS or Fed Ex.
  5. Remember, if the written notice is properly addressed, stamped and posted, the law “presumes” receipt. While the resident can try to deny it, the “presumption” requires them to prove a reason for non-receipt, which is pretty difficult to do. I’ve never seen the argument work.   A good precaution is to obtain a certificate of mailing from the post office, which confirms that you posted the letter.
  6. I’m not a fan of nail and mail. Unless your rental agreement permits it both ways, i.e. from landlord to tenant, and vice versa,[1] you should not use this method. If you’re insistent on using this method, don’t forget the 11:59 PM rule.
  7.  Don’t forget to keep true copies of the notice.  You’ll have to attach it to eviction complaint, if the matter isn’t resolved by the notice.
  8. “Measure twice, cut once.” In other words, calculate the number of days or hours a couple of time, just to make sure you’ve got the proper amount of time. Have someone else review it, just to make sure.

 

Conclusion. If time is of the essence, and the resident will actually answer the door (not their 6-year old child, or a friend), I would say personal service will suffice.  However, my strong preference is to mail all notices, making sure to add at least three days. I prefer this approach since the law presumes receipt, so long as it was properly addressed, stamped and posted. It also avoids the potential for a confrontation at the door.

 


[1] The MHCO complies with this requirement.