Palmer v. Zeis

SHAW, P. J.

The sole question presented pn this appeal is whether the landlord of a dwelling house who has given a month’s notice under section 1946, of the Civil Code, to terminate a moath to month tenancy, must also, after this month has expired, give a further notice of three days, before he can maintain an unlawful detainer proceeding to oust the tenant. This question arises upon the defendants’ objection to the introduction of evidence on the ground that the complaint alleged no three-day notice and so stated no cause of action. The complaint alleged and the evidence showed that the defendants were “month to month tenants” of the plaintiff, without stating how or when such tenancy was created, and that a month’s notice to terminate their tenancy was given them, to which no objection is made. No three-day notice was alleged or proved.

Defendants contend that the tenancy here is one “at will,” that proceedings to remove the tenant are therefore governed by sections 789 and 790 of the Civil Code, and that the effect of those sections is to require a three-day notice in addition to a thirty-day notice. The code contains no definition of the term “tenancy at will” and such a tenancy may arise

*Supp. 861

in various ways (15 Cal.Jur. 640-3). It perhaps includes a tenancy “from month to month.” (See. Orly v.

Russell

(1921), 53 Cal.App. 660, 663 [200 P. 732]; 35 C.J. 1105, 1119.) Under the provisions of sections 789, 790 and 791, Civil Code, it was formerly held that a three-day notice was necessary in cases like that we have here (see 15 Cal.Jur. 806, note 16, and cases cited;

Wagner

v.

Harvard

(1927), 87 Cal.App. 310, 312 [262 P. 47]).

But since those cases were decided, section 791 has been amended to provide that no three days’ notice is necessary “where the hiring of real property is for a term not specified by the parties and where such hiring was terminated under and in accordance with the provisions of section 1946 of the Civil Code.” Section 1946, Civil Code, provides that a “hiring of real property, for a term not specified by the parties, is deemed to be renewed as stated in the last section” unless such a notice of intention to terminate the same as is shown in the case at bar is given. Defendant argues that a tenancy from month to month is not “for a term not specified by the parties” and hence it is not within the above quoted provision of section 791 and may not be terminated under section 1946. It has been declared that a tenancy from month to month may be terminated by a notice given under section 1946