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Sherman Oaks REALTORS® – Property Management – Leasing Services – Real Estate Attorney
28Dec

How to Take Safety Precautions As a Landlord

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How to take safety precautions to protect yourself and your property in case you reach a Landlord – Tenant argument or misunderstanding.

Landlord Safety Precautions

  • Don’t give out your home address.
  • Encourage that your tenants pay via direct deposit or online payment.
  • Use a P.O. Box for tenants to mail rent payments
  • Get a separate secondary phone number for your tenants to call. Magic Jack or Google Voice number are good possibilities. It prevents your tenants from constantly calling your personal number with complaints or threats.
  • An angry tenant might pose a threat to damage your property. always be calm and stay on a professional level.
  • Screen Your Renters. Tenant screening goes beyond reviewing a tenant’s credit report and criminal background Get references to find out if the applicant has a history with aggression. Try to search online for the phone number and call to make sure that the  reference is real.
  • When you own a Property and want to avoid a Landlord / Tenant Relationship, choose a Property Management that will do all the work for you. Our team at the Ziegel Group manages local properties with pride and professionalism.

If you receive threatening messages or phone calls from a tenant, here are some ways to manage it professionally.

What To Do When Your Tenants Threaten You

  • Do not threaten back. Always respond professionally.
  • Call the Police if you feel threatened or in immediate danger. Having records will help you if you need to go to court.
  • Ask a witness to be with you during interactions with your tenants.
  • Tell the tenant that all communication must be done in writing.
  • Save all of the texts, emails, and voicemails. You might need them in court someday.
Remember your tenant may have legitimate claims. Check your state and local laws before you reply to a tenant demand.

 

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28May

Duties and Responsibilities of Landlords and Tenants

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landlordtenant copy

Duties and Responsibilities of Landlords and Tenants

 

A tenant owes a landlord certain duties and responsibilities.
1. Tenant are expected to pay the rent by the due date
2. Tenant should keep the property at the same condition received
3. Tenants who are on a month-to month lease are required to give at least a 30-day notice before moving out. (landlord can sue for 30-days rent if tenant fails to give the notice)
4. Tenants may be held liable for injuries that are a result of tenant’s negligence or unsafe conditions. (it is recommended and sometimes required to purchase renter’s insurance)
5. Tenants have a duty not to interfere with the rights of other tenants.
6. Tenant has the right to use and enjoy the property. If tenant is unreasonably bothered by landlord or another person, the tenant may have the right to move out and pay no further rent. This process is called “Constructive Eviction”
7. All California residential rentals must meet a minimum housing and health codes. The landlord is responsible for meeting those codes. If the property falls below the codes as a result of tenants action or negligence, the landlord can take legal action against tenants.
8. Tenant can demand repairs for a property that falls below the minimum California code requirements, not as a result of tenants actions. If landlord refuses, tenant may use up to one month rent offset to conduct necessary repairs or may be able to abandon the property without owing any future rent.

 

* This article is presented for general purposes only. Please consult a professional for any specific case.

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5Nov

What To Do When a Tenant’s Personal Property has Been Left Behind

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WHEN A TENANT’S PERSONAL PROPERTY HAS BEEN LEFT IN THE RENTAL UNIT

When tenants move out of a rental unit, they are required to also move their personal property. (Personal property is everything which a person can own except for land. Personal property is also referred to as personal possessions or personal belongings.) California law has three different procedures which a landlord may follow to remove and dispose of personal property left in a rental unit after a tenant has vacated. A landlord who has properly followed one of the procedures cannot be held liable for any damages related to the property.
The three procedures apply to the following three situations:
1. The tenant has requested that the property be returned.
2. It appears that the property has been abandoned.
3. It appears that the property has been lost. (The owner is unknown.)
Which procedure a landlord should follow in any particular case depends upon the situation.
Some General Guidelines For All Situations.
Store property safely . . .
When a tenant has left personal property in a rental unit, the landlord should safely store the property. A landlord may choose to leave the property in the rental unit. But if the unit may be rented soon, the landlord should store the property elsewhere. Wherever the landlord chooses to store the property, it must be kept in a safe place, where the property will not be damaged or stolen. In storing the property, the landlord must use reasonable care to keep it safe. If property is lost or damaged, and if the landlord did not act in a deliberate or negligent manner in storing and caring for the property, the landlord will not be liable for any storage related loss
Act reasonably . . .
In deciding whether or not a particular case fits into the lost property situation or the abandoned

property situation, a landlord is held by the law to a certain standard. And in deciding who the property owners are or might be, the landlord is held to that same standard. The standard is: A landlord must act reasonably, and the landlord’s actions must be based on a reasonable belief.
The law defines a “reasonable belief” as the actual knowledge or belief that a prudent person would have, given the facts then known by that person. Generally a landlord is not required to conduct an investigation to obtain more facts. But, if a landlord has information which indicates that an investigation would provide more facts about the identity of the property owner, and if the cost of the investigation would be reasonable in view of the probable value of the property, then the landlord should make the investigation. If an investigation should have been made but wasn’t, then the landlord is held to a higher standard – the reasonableness of the landlord’s actions would be judged as if the landlord had conducted an investigation and had known the facts which the investigation would have revealed.2
What all this means is that in deciding whether the property left behind is abandoned or lost, the landlord must keep in mind all of the facts that the landlord knows or ought to know about the situation. And in deciding who the property owner or owners might be, the landlord also must keep in mind all of the facts that the landlord knows or ought to know. For example, if the landlord knows that a telephone call or two, or a search of public records, would give the landlord more information about who the property owner is, and if the value of the property is significantly more than the cost of the phone calls and public records search, the landlord should make the calls and do the search. If the property left behind are records, you must presume that the tenant is the owner unless you are given proof otherwise.3
Avoid unlawful self-help …
When a landlord disposes of personal property by properly following one of the three legal procedures, the landlord can avoid the possibility of being held liable for unlawfully taking or converting the property.4
If a landlord goes about disposing of the property in some other way, resorting to self-help methods, the landlord could be liable for money damages.5
Animals …
If a tenant leaves an animal in or around a rental property without proper care and attention, you must take charge of the animal and immediately notify animal control officials.6 In the meantime, you are responsible for following any ordinances or laws that deal with animals.7
If the tenant has left livestock, consult Sections 17001 and following of the Food and Agriculture Code.
Please remember . . .
The steps outlined in this legal guide are only for situations where personal property has been left in a rental unit which has been vacated by the tenant. If the tenant has not vacated the unit, a landlord has no legal right to dispose of personal property in the unit. If a landlord believes that a unit has been abandoned by the tenant, the landlord must follow certain legal steps to declare the rental unit

abandoned. Only after the rental unit is legally considered abandoned can the landlord dispose of personal belongings left in it on that basis.
SITUATION NO. 1: Where The Tenant Has Requested Return of Property
This topic is addressed in LT-4, “How to Get Back Possessions You Have Left in a Rental Unit.”
SITUATION NO. 2: Where The Property Is Apparently Abandoned
To dispose of apparently abandoned property without risking liability for damages to the landlord, a landlord must follow the steps below. If the tenant left the unit because of a court-ordered eviction, the timing of the steps is slightly different. This difference is discussed below in the bold bracketed [ ] sections.
Steps to follow with abandoned property.
To dispose of personal possessions which apparently have been abandoned, the landlord should take the following steps:8
1. a. Write a notice to the former tenant or tenants.9
[No notice is required for former tenants who were evicted under a writ of possession.10 A notice already is contained in the writ of possession form which the sheriff is required to serve upon the evicted tenant or tenants.]
b. Write a notice to any other person whom the landlord believes may be the owner of some or all of the abandoned property.11
The notice12 must:
(1) Give enough information about the property so that the possible owner can identify it.
(2) Tell the tenant or other possible owner receiving the notice the place where the property may be claimed.
(3) Give the tenant or other possible owner a deadline after which time the property cannot be claimed.
[A tenant who is evicted under a writ of possession has 15 days after the landlord takes possession of the rental unit to pay reasonable costs of storage and to take possession of items left in the rental unit.]13
(4) Tell the tenant or other possible owner what the landlord intends to do with any of the property which is not claimed by the deadline.

(5) Tell the tenant or other possible owner whether reasonable costs of storage will be charged before the property is returned.
2. Deliver the notices to the tenants and other possible owners of the property.
3. Meet with the tenant and other possible owners when they come to claim the property.
4. If by the deadline, the tenant or other person pays the landlord any properly demanded storage costs, the landlord must release the property to the tenant or to any other person who the landlord reasonably believes to be its owner.14
5. If the property is not released and if the landlord stated in his or her notice that he or she intended to sell the property at a public sale, the landlord must release the property to the former tenant if, before the actual sale, the tenant claims it and pays the reasonable costs of storage and of advertising the sale.15
6. If, after the deadline, there is any property which was not claimed by the tenants or any other people notified, depending on the circumstances, the landlord must do one of two things with the remaining property:16
a. If the landlord reasonably believes that the property is worth less than $300, he or she may keep it, give it away, sell it or destroy it.
b. If the property is reasonably believed to be worth $300 or more, the landlord should arrange to have it sold at a public bidding sale after giving notice of the sale through publication. Both the landlord and the tenant have a right to bid on the property at the sale. After the property is sold, the landlord may deduct the costs of storage, advertising the sale, and conducting the sale. The remaining money must then be paid over to the county. The county can then give the money to the property owner if the owner claims the money at any time within one year after the date when the county received the money.
What should the notice say?
Under California law, the notice must contain certain information.17 Sample notices (one to a former tenant and one to a person other than a former tenant) are attached. A landlord may use this sample notice, but will have to fill in additional information, such as the description of the property, the place where the property may be claimed, and a date by which the property must be claimed. These are the legal requirements:
1. A description of the property.
The property should be described both in sufficient detail, and in a way which gives all possible owners enough information for them to determine whether or not the property might be theirs. The legal limitations of liability provided to a landlord do not apply to property which is not described in the notice. However, if the property includes a container (for example a trunk, or box) which is secured (that is locked, fastened or tied, in a way which would keep anyone from easily getting into it), then the contents of the container need not be described in the notice.18
2. A deadline for claiming property.
A date must be specified by which the potential owner must claim the property. The date given must be at least 15 days after the notice was personally delivered or, if the notice was mailed, a date not less than 18 days after the notice was mailed.19
3. Charge for storage.
The property owner may be charged for the reasonable cost of storage of the property, and that the charges must be paid before the property is released to the owner.
4. Where the property is located.
This should include both the address where the property was left and, if different, when the property may be claimed by the owner.
How should the notice be delivered?
The notice may be delivered to the tenant or other possible owner by either:
1. handing the notice to tenant or other possible owner –that is, personally delivering the notice; or
2. mailing the notice by first class mail with postage prepaid to the tenant or other possible owner at her or his last known address.
In addition, if the landlord has reason to believe that the notice sent to the person’s last known address will not be received by the person, the landlord also must send the notice to any other address, if known, where it would be reasonable to expect the person to receive the notice.
And, if the notice is sent by mail to the former tenant, one copy of the notice also must be mailed to the tenant at the address of the rental unit that the tenant vacated.
How should storage costs be charged?
If a former tenant claims the property, the landlord may charge the tenant the reasonable costs of storage for all personal property left at the rental unit, but only to the extent that the tenant has not paid those costs to the landlord previously.21
But, if an owner other than the former tenant claims a portion of the property, the landlord may only require that person to pay the reasonable costs of storage for the property that person claims.22
In any event, the landlord cannot charge more than one person for the same costs.

If the landlord has stored the personal property at the rental unit, the cost of the storage must be the fair rental value of the space reasonably required for such storage for the term of storage.24
What is the landlord’s liability?
Once the landlord has given the proper notices, whether a landlord is liable to anyone for the property depends upon whether the property was released to someone or whether the property was disposed of in another way.
Property was released:
If the property is released to the former tenant, then the landlord is not liable to any person for that property.25
If the property is released to someone other than a former tenant, and if the landlord reasonably believed that person to be the owner of the property, the landlord is not liable for that property to:
a. any person to whom notice was given; or
b. any person to whom notice was not given unless such person proves that: (1) prior to
releasing the property, the landlord believed or reasonably should have believed that such
person had an interest in the property; and, (2) that the landlord knew or should have known, upon reasonable investigation, the address of such person.26
Property disposed of in another manner (not released):
If the landlord reasonably believes that the total resale value of all the property is less than $300, the landlord may dispose of the property in any manner.27 However, if the landlord reasonably believes that the total resale value of all of the property is $300 or more, the property must be sold at a public sale by competitive bidding.
If the property is disposed of in either of those ways, the landlord is not liable for the property to:
a.
any person to whom notice was given; or
b.
any person to whom notice was not given unless such person proves that: (1) prior to disposing of the property, the landlord believed or reasonably should have believed that such person had an interest in the property; and, (2) that the landlord knew or should have known, upon reasonable investigation, the address of such person.28
SITUATION NO. 3: Where The Property Apparently Is Lost
To dispose of apparently lost property (legal owner is unknown) without risking liability to the owner, a landlord must follow these steps:

If the value of the property is reasonably believed to be $100 or more,29 the landlord must:
1. Turn the property over to the police department of the city where the property was found. If the property was found outside of the city limits, then the property should be turned over to the sheriff’s department of the county were the property was found.
2. Fill out a written statement describing the property, explaining when and where the property was found, whether he or she knows who owns the property, and that he or she has not withheld or disposed of any part of the property. The statement, which is known as an “affidavit” or “declaration,” must be signed under penalty of perjury.30 A blank form for the statement should be available at the police or sheriff’s office.
The law enforcement agency is then obligated to make reasonable attempts to find the property owner. If the property is not claimed by the owner within 90 days, the property belongs to the landlord if its reported value is less than $250. However, if the reported value of the property is $250 or more, the police or sheriff’s department must publish a notice of the property once in a newspaper of general circulation. If no one claims, and proves ownership of, the property within seven days after the published notice, and if the landlord pays the cost of publishing the notice, the property belongs to the landlord.31
3. If the law enforcement agency refuses to accept the property, then to avoid being held liable for damages to the property, the landlord should handle the property according to the same abandoned property procedure above which the police or sheriff would apply.
NOTICE: We attempt to make our legal guides accurate as of the date of publication, but they are only guidelines and not definitive statements of the law. Questions about the law’s application to particular cases should be directed to a specialist.

Source: The Law Office of Efrat Levy

http://elevylaw.com/what-to-do-when-a-tenants-personal-property-has-been-left-in-the-rental-unit/

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14Jan

Occupants Not Named In Eviction Lawsuit Or Writ Of Possession

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OCCUPANTS NOT NAMED IN EVICTION LAWSUIT

People who are not named as tenants in the rental agreement or lease sometimes move into a rental unit before the landlord files the unlawful detainer (eviction) lawsuit. The landlord may not know that these people (called “occupants”) are living in the rental unit, and therefore may not name them as defendants in the summons and complaint. As a result, these occupants are not named in the writ of possession if the landlord wins the unlawful detainer action. A sheriff enforcing the writ of possession cannot lawfully evict an occupant whose name does not appear on the writ of possession and who claims to have lived in the unit since before the unlawful detainer lawsuit was filed. (See “Writ of possession.”)

The landlord can take steps to avoid this result. The landlord can instruct the process server who serves the summons and complaint on the named defendants to ask whether there are other occupants living in the unit who have not been named as defendants. If there are, the person serving the summons and complaint can serve each of the so-called “unnamed occupants” with a blank Prejudgment Claim of Right to Possession form and an extra copy of the summons and complaint 349

These occupants then have 10 days from the date they are served to file a Prejudgment Claim of Right to Possession form with the Clerk of Court, and to pay the clerk the required filing fee (or file an “Application for Waiver of Court Fees and Costs” if they are unable to pay the filing fee (see The Eviction Process)). Any unnamed occupant who does not file a Prejudgment Claim of Right to Possession form with the Clerk of Court (along with the filing fee or a request for waiver of the fee) can then be evicted.

An unnamed occupant who files a Prejudgment Claim of Right to Possession form automatically becomes a defendant in the unlawful detainer lawsuit, and must file an answer to the complaint within five days after filing the form. The court then rules on the occupant’s defense to the eviction along with the defenses of the other defendants.350 If the landlord wins, the occupant cannot delay the eviction, whether or not the occupant is named in the writ of possession issued by the court.351

Occupants not named in writ of possession

The landlord sometimes does not serve a Prejudgment Claim of Right to Possession form on the unnamed occupants when the unlawful detainer complaint is served. When the sheriff arrives to enforce the writ of possession (that is, to evict the tenants [see “Writ of possession,”]), an occupant whose name does not appear on the writ of possession, and who claims a right of possession, may fill out a Claim of Right to Possession form and give it to the sheriff. The sheriff must then stop the eviction of that occupant, and must give the occupant a copy of the completed form or a receipt for it.352

Within two business days after completing the form and giving it to the sheriff, the occupant must deliver to the Clerk of Court the court’s filing fee (or file an Application for Waiver of Court Fees and Costs if the occupant is unable to pay the filing fee (see The Eviction Process)). The occupant also should deliver to the court an amount equal to 15 days’ rent for the rental unit (the writ of possession must state the daily rental value of the rental unit).

Five to 15 days after the occupant has paid the filing fee (or has filed a request for waiver of the fee), and has deposited an amount equal to 15 days’ rent, the court will hold a hearing. If the occupant does not deposit the 15 days’ rent, the court will hold the hearing within five days.

At the hearing, the court will decide whether or not the occupant has a valid claim to possession. If the court decides that the occupant’s claim to possession is valid, the amount of rent deposited will be returned to the occupant. The court will then order further proceedings, as appropriate to the case (for example, the occupant may be given five days to answer the landlord’s complaint).

If the court finds that the occupant’s claim to possession is not valid, an amount equal to the daily rent for each day the eviction was delayed will be subtracted from the rent that is returned to the occupant, and the sheriff or marshal will continue with the eviction.

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14Jan

Resolving Landlord – Tenant Problems

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How to resolve Landlord – Tenant Problems?

Resolving Tenant-landlord Problems

TALK WITH YOUR LANDLORD

Communication is the key to avoiding and  resolving landlord tenant problems. If you have a problem with your rental unit, it’s usually best to talk with your landlord before taking other action. Your landlord may be willing to correct the problem or to work out a solution. By the same token, the landlord (or the landlord’s agent or manager) should discuss problems with the tenant before taking formal action. The tenant may be willing to correct the problem once he or she understands the landlord’s concerns. Both parties should bear in mind that each has the duty to deal with the other fairly and in good faith (see Landlord’s and tenant’s duty of good faith and fair dealing).

If discussing the problem with the landlord doesn’t solve it, and if the problem is the landlord’s responsibility (see Dealing with Problems), you should write a letter or send an e-mail to the landlord. The letter or e-mail should describe the problem, its effect on you, how long the problem has existed, what you may have done to remedy the problem or limit its effect, and what you would like the landlord to do. You should keep a copy of this letter or e-mail.

If you have been dealing with an agent of the landlord, such as a property manager, you may want to directly contact the owner of the rental unit. The name, address and telephone number of the owner and the property manager, or the person who is authorized to receive legal notices for the owner, must be written in your rental agreement (or lease) or posted conspicuously in the building.345 You can also contact your County Assessor’s Office for this information.

If you don’t hear from the landlord after you send the letter or e-mail, or if the landlord disagrees with your complaint, you may need to use one of the tenant remedies that are discussed in this booklet (such as the repair and deduct remedy, see Having Repairs Made), or obtain legal assistance. The length of time that you should wait for the landlord to act depends on the seriousness of the problem. Normally, 30 days is considered appropriate unless the problem is extremely serious.

REMEMBER: The landlord and the tenant discussing problems with each other can prevent little problems from becoming big ones. Trying to work out problems benefits everybody. Sometimes, it’s helpful to involve someone else, such as a mutual friend or a trained arbitrator or mediator (see below). If the problem truly cannot be resolved by discussion, negotiation, and acceptable compromise, then each party can look to the remedies provided by the law.

GETTING HELP FROM A THIRD PARTY – The Ziegel Group

Many resources are available to help tenants and landlords resolve problems. Check which of the following agencies are available in your area, review their Web sites to determine if they can offer you assistance, or call or write them for information or assistance:

  • Local consumer protection agency. See the City and County Government listings in the white pages of the phone book.
  • Local housing agency. See the City and County Government listings in the white pages of the phone book.
  • Local district attorney’s office. See the County Government listings in the white pages of the phone book.
  • City or county rent control board. See the City and County Government listings in the white pages of the phone book.
  • Local tenant association, or rental housing or apartment association. Check the white (business) and Yellow Pages in the phone book.
  • Local tenant information and assistance resources. See Appendix 4.
  • Local dispute resolution program. For a list go online to www.dca.ca.gov/consumer/mediation_programs.shtml.

You may also obtain information from the California Department of Consumer Affairs’ Consumer Information Center at (800) 952-5210 or (916) 445-1254. For TDD, call (800) 326-2297 or (916) 322-1700. You can also visit the Department of Consumer Affairs’ Web site.

Many county bar associations offer lawyer referral services and volunteer attorney programs which can help a tenant locate a low-fee or free attorney. Legal aid organizations may provide eviction defense service to low-income tenants. Some law schools offer free advice and assistance through landlord-tenant clinics.

Tenants should be cautious about using so-called eviction defense clinics or bankruptcy clinics. While some of these clinics may be legitimate and provide good service, others are not legitimate. Some of these clinics may use high-pressure sales tactics, make false promises, obtain your signature on blank forms, take your money, and then do nothing.

These clinics may promise to get a federal stay (also called an automatic stay)of an eviction action. This usually means that the clinic intends to file a bankruptcy petition for the tenant. (See “The Eviction Process, A word about bankruptcy“.) While this may stop the eviction temporarily, it can have an extremely bad effect on the tenant’s future ability to rent property or to obtain credit, since the bankruptcy will be part of the tenant’s credit record for as long as 10 years.

Unlawful detainer assistants (UDAs) are non-lawyers who are in business to provide advice and assistance to landlords and tenants on unlawful detainer issues. UDAs must be registered with the County Clerk’s office in the counties where they have their principal place of business and where they do business.346 A tenant who signs a contract with a UDA can cancel the contract within 24 hours after signing it.347

Legal document assistants (LDAs) are non-lawyers who type and file legal documents as directed by people who are representing themselves in legal matters. Similar registration and contract cancellation requirements apply to legal document assistants.348

The fact that a UDA or an LDA is properly registered with the County Clerk does not guarantee that the UDA or LDA has the knowledge or ability to help you.

ARBITRATION AND MEDIATION

Some local housing agencies refer landlord-tenant disputes to a local dispute resolution center or mediation service. The goal of these services is to resolve disputes without the burden and expense of going to court.

Mediation involves assistance from an impartial third person, called a mediator, who helps the tenant and landlord reach a voluntary agreement on how to settle the dispute. The mediator normally does not make a binding decision in the case.

Arbitration involves referral of the dispute to an impartial third person, called an arbitrator, who decides the case. If the landlord and tenant agree to submit their dispute to arbitration, they will be bound by the decision of the arbitrator, unless they agree to nonbinding arbitration. landlord tenant problems

Tenants and landlords should always consider resolving their disputes by mediation or arbitration instead of a lawsuit. Mediation is almost always faster, cheaper, and less stressful than going to court. While arbitration is more formal than mediation, arbitration can be faster, and is usually less stressful and burdensome, than a court action.

Mediation services are listed in the yellow pages of the telephone book under Mediation Services. To obtain a county-by-county listing of dispute resolution services, go online to www.dca.ca.gov/consumer/mediation_programs.shtml.

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14Jan

Retaliatory Actions, Evictions And Discrimination

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Retaliatory actions and eviction

A landlord may try to evict a tenant because the tenant has exercised a legal right (for example, using the repair and deduct remedy, (see Having Repairs Made) or has complained about a problem in the rental unit. Or, the landlord may raise the tenant’s rent or otherwise seek to punish the tenant for complaining or lawfully exercising a tenant right.

In either situation, the landlord’s action is said to be retaliatory because the landlord is punishing the tenant for the tenant’s exercise of a legal right. The law offers tenants protection from retaliatory eviction and other retaliatory acts.338

The law infers (assumes) that the landlord has a retaliatory motive if the landlord seeks to evict the tenant (or takes other retaliatory action) within six months after the tenant has exercised any of the following tenant rights:339

  • Using the repair and deduct remedy, or telling the landlord that the tenant will use the repair and deduct remedy.
  • Complaining about the condition of the rental unit to the landlord, or to an appropriate public agency after giving the landlord notice.
  • Filing a lawsuit or beginning arbitration based on the condition of the rental unit.
  • Causing an appropriate public agency to inspect the rental unit or to issue a citation to the landlord.

In order for the tenant to defend against eviction on the basis of retaliation, the tenant must prove that he or she exercised one or more of these rights within the six-month period, that the tenant’s rent is current, and that the tenant has not used the defense of retaliation more than once in the past 12 months. If the tenant produces all of this evidence, then the landlord must produce evidence that he or she did not have a retaliatory motive.340 Even if the landlord proves that he or she has a valid reason for the eviction, the tenant can prove retaliation by showing that the landlord’s effort to evict the tenant is not in good faith.341 If both sides produce the necessary evidence, the judge or jury then must decide whether the landlord’s action was retaliatory or was based on a valid reason.

A tenant can also assert retaliation as a defense to eviction if the tenant has lawfully organized or participated in a tenants’ organization or protest, or has lawfully exercised any other legal right. In these circumstances, the tenant must prove that he or she engaged in the protected activity, and that the landlord’s conduct was retaliatory.342

If you feel that your landlord has retaliated against you because of an action that you’ve properly taken against your landlord, talk with an attorney or legal aid organization. An attorney also may be able to advise you about other defenses.

Retaliatory discrimination

A landlord, managing agent, real estate broker, or salesperson violates California’s Fair Employment and Housing Act by harassing, evicting, or otherwise discriminating against a person in the sale or renting of housing when the “dominant purpose” is to retaliate against a person who has done any of the following:343

  • Opposed practices that are unlawful under the Act;
  • Informed law enforcement officials of practices that the person believes are unlawful under the Act; or
  • Aided or encouraged a person to exercise rights protected by the Act.

A tenant who can prove that the landlord’s eviction action is based on a discriminatory motive has a defense to the unlawful detainer action. A tenant who is the victim of retaliatory discrimination also has a cause of action for damages under the Fair Employment and Housing Act.

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14Jan

The Eviction Process

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(Unlawful Detainer Lawsuit)

Overview of the eviction process

If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant. In order to evict the tenant, the landlord must file an unlawful detainer lawsuit in superior court.

In an eviction lawsuit, the landlord is called the “plaintiff” and the tenant is called the “defendant.”

Recent laws designed to abate drug dealing 295 and unlawful use, manufacture, or possession of weapons and ammunition,296 permit a city attorney or prosecutor in selected jurisdictions 297 to file an unlawful detainer action against a tenant based on an arrest report (or other action or report by law enforcement or regulatory agencies) if the landlord fails to evict the tenant after 30 days notice from the city. The tenant must be notified of the nature of the action and possible defenses.

An unlawful detainer lawsuit is a “summary” court procedure. This means that the court action moves forward very quickly, and that the time given the tenant to respond during the lawsuit is very short. For example, in most cases, the tenant has only five days to file a written response to the lawsuit after being served with a copy of the landlord’s summons and complaint.298 Normally, a judge will hear and decide the case within 20 days after the tenant or the landlord files a request to set the case for trial.299

The court-administered eviction process assures the tenant of the right to a court hearing if the tenant believes that the landlord has no right to evict the tenant. The landlord must use this court process to evict the tenant; the landlord cannot use self-help measures to force the tenant to move. For example, the landlord cannot physically remove or lock out the tenant, cut off utilities such as water or electricity, remove outside windows or doors, or seize (take) the tenant’s belongings in order to carry out the eviction. The landlord must use the court procedures.

If the landlord uses unlawful methods to evict a tenant, the landlord may be subject to liability for the tenant’s damages, as well as penalties of up to $100 per day for the time that the landlord used the unlawful methods.300

In an unlawful detainer lawsuit, the court holds a hearing at which the parties can present their evidence and explain their case. If the court finds that the tenant has a good defense, the court will not evict the tenant. If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay court costs (for example, the tenant’s filing fees). The landlord also may have to pay the tenant’s attorney’s fees, if the rental agreement contains an attorney’s fee clause and if the tenant was represented by an attorney.301

If the court decides in favor of the landlord, the court will issue a writ of possession.302 The writ of possession orders the sheriff to remove the tenant from the rental unit, but gives the tenant five days from the date that the writ is served to leave voluntarily. If the tenant does not leave by the end of the fifth day, the writ of possession authorizes the sheriff to physically remove and lock the tenant out, and seize (take) the tenant’s belongings that have been left in the rental unit. The landlord is not entitled to possession of the rental unit until after the sheriff has removed the tenant.

The court also may award the landlord any unpaid rent if the eviction is based on the tenant’s failure to pay rent. The court also may award the landlord damages, court costs, and attorney’s fees (if the rental agreement or lease contains an attorney’s fee clause and if the landlord was represented by an attorney). If the court finds that the tenant acted maliciously in not giving up the rental unit, the court also may award the landlord up to $600 as a penalty.303 The judgment against the tenant will be reported on the tenant’s credit report for seven years.304

How to respond to an unlawful detainer lawsuit

If you are served with an unlawful detainer complaint, you should get legal advice or assistance immediately. Tenant organizations, tenant-landlord programs, housing clinics, legal aid organizations, or private attorneys can provide you with advice, and assistance if you need it. (See “Getting Help From a Third Party “)

You usually have only five days to respond in writing to the landlord’s complaint. You must respond during this time by filing the correct legal document with the Clerk of Court in which the lawsuit was filed. If the fifth day falls on a weekend or holiday, you can file your written response on the following Monday or nonholiday.305 Typically, a tenant responds to a landlord’s complaint by filing a written “answer.” (You can get a copy of a form to use for filing an answer from the Clerk of Court’s office or online at www.courts.ca.gov/documents/ud105.pdf.

You may have a legal defense to the landlord’s complaint. If so, you must state the defense in a written answer and file your written answer with the Clerk of Court by the end of the fifth day. Otherwise, you will lose any defenses that you may have. Some typical defenses that a tenant might have are listed here as examples:

  • The landlord’s three-day notice requested more rent than was actually due.
  • The rental unit violated the implied warranty of habitability.
  • The landlord filed the eviction action in retaliation for the tenant exercising a tenant right or because the tenant complained to the building inspector about the condition of the rental unit.

Depending on the facts of your case, there are other legal responses to the landlord’s complaint that you might file instead of an answer. For example, if you believe that your landlord did not properly serve the summons and the complaint, you might file a Motion to Quash Service of Summons. If you believe that the complaint has some technical defect or does not properly allege the landlord’s right to evict you, you might file a Demurrer. It is important that you obtain advice from a lawyer before you attempt to use these procedures.

If you don’t file a written response to the landlord’s complaint by the end of the fifth day, the court will enter a default judgment in favor of the landlord. A default judgment allows the landlord to obtain a writ of possession (see Writ of Possession), and may also award the landlord unpaid rent, damages and court costs.

The Clerk of Court will ask you to pay a filing fee when you file your written response. The filing fee typically is about $180. However, if you can’t afford to pay the filing fee, you can request that the Clerk allow you to file your response without paying the fee (that is, you can request a waiver of the fee). An application form for a fee waiver, called an “Application for Waiver of Court Fees and Costs,”can be obtained from the Clerk of Court or online at http://www.courts.ca.gov/documents/fw001.pdf.306

After you have filed your written answer to the landlord’s complaint, the Clerk of Court will mail to both you and the landlord a notice of the time and place of the trial. If you don’t appear in court, a default judgment will be entered against you.

Special Rules for Tenants in the Military: A servicemember may be entitled to a stay (delay) of an eviction action for 90 days. This rule applies to the servicemember and his or her dependents (such as a spouse or child) in a residential rental unit with rent of $2,400 per month or less, as adjusted by the housing price inflation adjustment. The servicemember’s ability to pay rent must be materially affected by military service. The judge may order the stay on his or her own motion or upon request by the servicemember or a representative. The judge can adjust the length and terms of the delay as equity (fairness) requires.307 Landlords that violate the court-ordered eviction process in regards to a servicemember may face a fine and/or imprisonment for up to one year.307.1

Eviction of “unnamed occupants”

Sometimes, people who are not parties to the rental agreement or lease move into the rental unit with the tenant or after the tenant leaves, but before the unlawful detainer lawsuit is filed. When a landlord thinks that these “occupants” might claim a legal right to possess the rental unit, the landlord may seek to include them as defendants in the eviction action, even if the landlord doesn’t know who they are. In this case, the landlord will tell the process server to serve the occupants with a Prejudgment Claim of Right to Possession form at the same time that the eviction summons and complaint are served on the tenants who are named defendants.308 See additional discussion of “unnamed occupants” and Claim of Right to Possession forms.

Discovery in Unlawful Detainer Cases

Each of the four available discovery procedures requires a minimum of five days’ notice to the landlord before the landlord is required to respond.309 Available discovery procedures in unlawful detainer actions include oral depositions,310 written interrogatories,311 inspection, copying, testing, or sampling of the landlord’s records, things, electronically stored information and places,312 and requests for admissions.313 Under these rules, the landlord must comply with your request for discovery within five days.314 All discovery must be completed on or before the fifth day before the date set for trial.315

  • If you intend to defend your case, and intend to use the discovery process as a tool, you must follow strict timelines applicable to evictions in California.
  • The discovery process works in five-day increments. Once you have been served, you may begin your discovery by mailing any discovery requests. You must allow five days for your request to be received by the landlord. The landlord then has five days to respond to your request. All of the discovery must be completed at least five days before the date of the trial.316

 

Before the court hearing

Before appearing in court, you must carefully prepare your case, just as an attorney would. Among other things, you should:

  • Be mindful that when you have been served with the summons and complaint, you have five days in which to file an answer. You should carefully read the summons, which will have very specific information on how to answer the complaint and the strict timelines. (Please refer to “How to respond to an unlawful detainer lawsuit“.).
  • Talk with a housing clinic, tenant organization, attorney, or legal aid organization. This will help you understand the legal issues in your case and the evidence that you will need.
  • Request discovery of the evidence that may be helpful to your case or to preparing a defense. (See “Discovery in Unlawful Detainer Cases“.)
  • Decide how you will present the facts that support your side of the case – whether by witnesses, letters, other documents, photographs or video, or other evidence.
  • Have at least five copies of all documents that you intend to use as evidence—an original for the judge, a copy for the court clerk, a copy for the opposing party, a copy for yourself, and copies for your witnesses.
  • Ask witnesses who will help your case to testify at the trial. You can subpoena a witness who will not testify voluntarily. A subpoena is an order from the court for a witness to appear. The subpoena must be served on (handed to) the witness, and can be served by anyone but you who is over the age of 18. You can obtain a subpoena from the Clerk of Court. You must pay witness fees at the time the subpoena is served on the witness, if the witness requests them.

The parties to an unlawful detainer lawsuit have the right to a jury trial, and either party can request one.317 After you have filed your answer to the landlord’s complaint, usually the landlord will file a document called a Memorandum to Set Case for Trial (officially called a “Request/Counter-Request to Set Case for Trial” form (Judicial Council Form UD-150).)318 This document will indicate whether the plaintiff (landlord) has requested a jury trial. If not, and if you are not represented by a lawyer, tenant advisers usually recommend that you not request a jury trial.

There are several good reasons for this recommendation: first, presenting a case to a jury is more complex than presenting a case to a judge, and a nonlawyer representing himself or herself may find it very difficult; second, the party requesting a jury trial will be responsible for depositing the initial cost of jury fees with the court; and third, the losing party will have to pay all of the jury costs.319

After the court’s decision

If the court decides in favor of the tenant, the tenant will not have to move, and the landlord may be ordered to pay the tenant’s court costs (for example, filing fees) and the tenant’s attorney’s fees. However, the tenant will have to pay any rent that the court orders.

If the landlord wins, the tenant will have to move. In addition, the court may order the tenant to pay the landlord’s court costs and attorney’s fees, and any proven damages, such as overdue rent or the cost of repairs if the tenant damaged the premises.

It is possible, but rare, for a losing tenant to convince the court to allow the tenant to remain in the rental unit. This is called relief from forfeiture of the tenancy. The tenant must convince the court of two things in order to obtain relief from forfeiture: that the eviction would cause the tenant severe hardship, and that the tenant is able to pay all of the rent that is due or that the tenant will fully comply with the lease or rental agreement.320

A tenant can obtain relief from forfeiture of a lease or a rental agreement, even if the tenancy has terminated (ended), so long as possession of the unit has not been turned over to the landlord. A tenant seeking relief from forfeiture (or the tenant’s attorney) must apply for relief at any time prior to restoration of the premises to the landlord, but such a petition should be made as soon as possible after the court issues its judgment in the unlawful detainer lawsuit.321

A tenant who loses an unlawful detainer lawsuit may appeal the judgment if the tenant believes that the judge mistakenly decided a legal issue in the case. However, the tenant will have to move before the appeal is heard, unless the tenant obtains a stay of enforcement of the judgment or relief from forfeiture (described immediately above). The court will not grant the tenant’s request for a stay of enforcement unless the court finds that the tenant or the tenant’s family will suffer extreme hardship, and that the landlord will not suffer irreparable harm. If the court grants the request for a stay of enforcement, it will order the tenant to make rent payments to the court in the amount ordered by the court and may impose additional conditions.322

A landlord who loses an unlawful detainer lawsuit also may appeal the judgment.

Writ of possession

If a judgment is entered against you and becomes final (for example, if you do not appeal or if you lose on appeal), and you do not move out, the court will issue a writ of possession to the landlord.323 The landlord can deliver this legal document to the sheriff, who will then forcibly evict you from the rental unit if you don’t leave promptly.

Before evicting you, the sheriff will serve you with a copy of the writ of possession.324 The writ of possession instructs you that you must move out by the end of the fifth day after the writ is served on you, and that if you do not move out, the sheriff will remove you from the rental unit and place the landlord in possession of it.325 The cost of serving the writ of possession will be added to the other costs of the suit that the landlord will collect from you.

After you are served with the writ of possession, you have five days to move. If you have not moved by the end of the fifth day, the sheriff will return and physically remove you.326 If your belongings are still in the rental unit, the sheriff may either remove them or have them stored by the landlord, who can charge you reasonable storage fees. If you do not reclaim these belongings within 18 days, the landlord can mail you a notice to pick them up, and then can either sell them at auction or keep them (if their value is less than $300).327 If the sheriff forcibly evicts you, the sheriff’s cost will also be added to the judgment, which the landlord can collect from you.

Setting aside a default judgment

If the tenant does not file a written response to the landlord’s complaint, the landlord can ask the court to enter a default judgment against the tenant. The tenant then will receive a notice of judgment, and a writ of possession as described above.

There are many reasons why a tenant might not respond to the landlord’s complaint. For example, the tenant may have received the summons and complaint, but was not able to respond because the tenant was ill or incapacitated, or for some other very good reason. It is even possible (but not likely) that the tenant was never served with the landlord’s summons and complaint. In situations such as these, where the tenant has a valid reason for not responding to the landlord’s complaint, the tenant can ask the court to set aside the default judgment.

Setting aside a default judgment can be a complex legal proceeding. Common reasons for seeking to set aside a default judgment are the tenant’s (or the tenant’s lawyer’s) mistake, inadvertence, surprise, or excusable neglect.328 A tenant who wants to ask the court to set aside a default judgment must act promptly. The tenant should be able to show the court that he or she has a satisfactory excuse for the default, acted promptly in making the request, and has a good chance to win at trial.329 A tenant who thinks that grounds exist for setting aside a default judgment should first seek advice and assistance from a lawyer, a legal aid organization, or a tenant organization..

Special rules for tenants in the military may make it more difficult for a landlord to obtain a default judgment against the tenant, and may make it possible for a tenant to reopen a default judgment and defend the unlawful detainer action.330

A word about bankruptcy

Some tenants think that filing a bankruptcy petition will prevent them from being evicted. This is not always true.

Filing bankruptcy is a serious decision with many long-term consequences beyond the eviction action. In addition, much of what the public knows about bankruptcy has been changed by the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005.

A tenant who is thinking about filing bankruptcy because of the threat of eviction, or for any reason, should consult a bankruptcy expert and carefully weigh the expert’s advice.

Bankruptcy is a complicated legal specialty and explaining it is beyond the scope of this booklet. However, here is some basic information about bankruptcy as it relates to unlawful detainer proceedings:331

  • A tenant who files a bankruptcy petition after October 17, 2005 (the effective date of the 2005 Bankruptcy Act) normally is entitled to an immediate automatic stay (delay) of a pending unlawful detainer action. If the landlord hasn’t already filed the unlawful detainer action, the automatic stay prevents the landlord from taking steps such as serving a three-day notice or filing the action.332
  • The landlord may petition the bankruptcy court for permission to proceed with the unlawful detainer action (called “relief from the automatic stay”).333
  • The automatic stay may continue in effect until the bankruptcy case is closed, dismissed, or completed. On the other hand, the bankruptcy court may lift the stay if the landlord shows that he or she is entitled to relief.334
  • The automatic stay normally does not prevent the landlord from enforcing an unlawful detainer judgment that was obtained before the tenant’s petition was filed. In some cases, however, the tenant may be able to keep the stay in effect for 30 days after the petition is filed.335
  • The automatic stay does not apply if the landlord’s eviction action is based on the tenant’s endangering the rental property or using illegal controlled substances on the property, and if the landlord files a required certification with the bankruptcy court. The stay normally will remain in effect, however, for 15 days after the landlord files the certification with the court.336
  • A bankruptcy case can be dismissed for “cause” – for example, if the tenant neglects to pay fees or file necessary schedules and financial information, causes unreasonable delay that harms the landlord, or files the case in bad faith.

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14Jan

Terminations And Evictions

Posted by: admin Categories: Landlords Tenants
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WHEN CAN A LANDLORD TERMINATE A TENANCY?

A landlord can terminate (end) a month-to-month tenancy simply by giving the tenant 30 or 60 days’ advance written notice. (For an explanation of month-to-month tenancies, see Rental Agreements and Leases; for an explanation of 30-day and 60-day notices, see Giving and Receiving Proper Notice and Written Notices of Termination below.)

However, the landlord can terminate the tenancy by giving the tenant only three days’ advance written notice if the tenant has done any of the following:276

  • Failed to pay the rent.
  • Violated any provision of the lease or rental agreement.
  • Materially damaged the rental property (“committed waste”).
  • Substantially interfered with other tenants (“committed a nuisance”).277
  • Committed domestic violence or sexual assault against, or stalked another tenant or subtenant on the premises.
  • Used the rental property for an unlawful purpose.278
  • Engaged in drug dealing, unlawfully used, cultivated, imported, or manufactured illegal drugs.
  • Using the building or property to conduct dogfighting or cockfighting.278.1
  • Unlawful conduct involving weapons or ammunition.279

Three-day notices are further explained below.

If the tenant doesn’t voluntarily move out after the landlord has properly given the required notice to the tenant, the landlord can evict the tenant; but in order to evict the tenant, the landlord must first file an unlawful detainer lawsuit in Superior Court.

WRITTEN NOTICES OF TERMINATION

30-day or 60-day notice

A landlord who wants to terminate (end) a month-to-month tenancy can do so by properly serving a written 30-day or 60-day notice on the tenant. Generally, a 30-day or 60-day notice doesn’t have to state the landlord’s reason for ending the tenancy. The 30-Day or 60-Day Notice is discussed in Giving and Receiving Proper Notice, and proper service of notices is discussed below.

In some localities or circumstances, special rules may apply to 30-day or 60-day notices:

  • Some rent control cities require “just cause” for eviction, and the landlord’s notice must state the reason for termination.
  • Subsidized housing programs may limit allowable reasons for eviction, and may require that the notice state one of these reasons (see Giving and Receiving Proper Notice).
  • Some reasons for eviction are unlawful. For example, an eviction cannot be retaliatory or discriminatory (see Retaliatory Actions, Evictions and Discrimination).
  • A landlord cannot evict a tenant for the reason that the water heater must be braced to protect against earthquake damage.280

How to respond to a 30-day or 60-day notice

Suppose that the landlord has properly served you with a 30-day or 60-day notice to terminate the tenancy. During the 30-day or 60-day period, you should either move out or try to make arrangements with the landlord to stay. If you want to continue to occupy the rental unit, ask the landlord what you need to do to make that possible. While a landlord is not required to state a reason for giving a 30-day or 60-day notice, most landlords do have a reason for terminating a tenancy. If you want to stay, it’s helpful to know what you can do to make your relationship with the landlord a better one.

If your landlord agrees that you can continue to occupy the rental unit, it’s important that your agreement with the landlord be in writing. The written agreement might be an attachment to your lease or rental agreement that both the landlord and you sign, or an exchange of letters between you and the landlord that states the details of your agreement. Having the agreement in writing ensures that you and your landlord are clear about your future relationship.

If the landlord doesn’t agree to your staying, you will have to move out. You should do so by the end of the 30th or 60th day. Take all of your personal belongings with you, and leave the rental property at least as clean as when you rented it. This will help with the refund of your security deposit (see “Refunds of Security Deposits“).

If you have haven’t moved at the end of the 30th or 60th day, you will be unlawfully occupying the rental unit, and the landlord can file an unlawful detainer (eviction) lawsuit to evict you.

If you believe that the landlord has acted unlawfully in giving you a 30-day or 60-day notice, or that you have a valid defense to an unlawful detainer lawsuit, you should carefully weigh the pros and cons of contesting the landlord’s likely eviction lawsuit against you if you don’t move out. As part of your decision-making process, you may wish to consult with a lawyer, legal aid organization, tenant-landlord program, or housing clinic. (See “Getting Help From a Third Party“.)

Three-day notice

A landlord can use a written three-day notice (eviction notice) if the tenant has done any of the following:281

  • Failed to pay the rent.
  • Violated any provision of the lease or rental agreement.
  • Materially damaged the rental property (“committed waste”).
  • Used the rental property for an unlawful purpose.
  • Substantially interfered with other tenants (“committed a nuisance”).
  • Committed domestic violence or sexual assault against, or stalked another tenant or subtenant on the premises.282
  • Engaged in drug dealing, unlawfully used, cultivated, imported, or manufactured illegal drugs.283
  • Using the building or property to conduct dogfighting or cockfighting.283.1
  • Unlawful conduct involving weapons or ammunition.284

If the landlord gives the tenant a three-day notice because the tenant hasn’t paid the rent, the notice must accurately state the amount of rent that is due. In addition, the notice must state:

  • The name, address and telephone number of the person to whom the rent must be paid.
  • If payment may be made in person, the usual days and hours that the person is available to receive the rent payment. If the address does not accept personal deliveries, then you can mail the rent to the owner at the name and address stated in the three-day notice. If you can show proof that you mailed the rent to the stated name and address (for example, a receipt for certified mail), the law assumes that the rent payment is received by the owner on the date of postmark.
  • Instead, the notice may state the name, street address and account number of the financial institution where the rent payment may be made (if the institution is within five miles of the unit). If an electronic fund transfer procedure was previously established for paying rent, payment may be made using that procedure.285

The landlord normally cannot require that the tenant pay the past-due rent in cash. (See “Living in the Rental Unit“.)

If the three-day notice is based on one of the other seven conditions listed above, the notice must either describe the tenant’s violation of the lease or rental agreement, or describe the tenant’s other improper conduct. The three-day notice must be properly served on the tenant (see Proper Service of Notices).

Depending on the type of violation, the three-day notice demands either (1) that the tenant correct the violation or leave the rental unit, or (2) that the tenant leave the rental unit. If the violation involves something that the tenant can correct (for example, the tenant hasn’t paid the rent, or the tenant has a pet but the lease doesn’t permit pets), the notice must give the tenant the option to correct the violation.

Failing to pay the rent, and most violations of the terms of a lease or rental agreement, can be corrected. In these situations, the three-day notice must give the tenant the option to correct the violation. However, the other three conditions listed above cannot be corrected, and the three-day notice can simply order the tenant to leave at the end of the three days.

If you pay the rent that is due or correct a correctable violation of the lease or rental agreement during the three-day notice period, the tenancy continues.286 If you attempt to pay all the past-due rent demanded after the three-day period expires, the landlord can either file a lawsuit to evict you or accept the rent payment. If the landlord accepts the rent, the landlord waives (gives up) the right to evict you based on late payment of rent.287

See below on how to count the three days.

How to respond to a three-day notice

Suppose that your landlord properly serves you a three-day notice because you haven’t paid the rent. You must either pay the full amount of rent that is due or vacate (leave) the rental unit by the end of the third day, unless you have a legal basis for not paying rent (see The “repair and deduct” remedy and “rent withholding remedy“).

If you decide to pay the rent that is due, it’s best to call the landlord or the landlord’s agent immediately. Tell the landlord or agent that you intend to pay the amount demanded in the notice (if it is correct) and arrange for a time and location where you can deliver the payment to the landlord or agent. You must pay the rent by the end of the third day. You should pay the unpaid rent by cashier’s check, money order, or cash. Whatever the form of payment, be sure to get a receipt signed by the landlord or agent that shows the date and the amount of the payment.

The landlord normally cannot require that you pay the unpaid rent in cash. (See “Living in the Rental Unit“.)

If the amount of rent demanded is not correct, it’s essential that you discuss this with the landlord or agent immediately, and offer to pay the amount that is actually due. Make this offer orally and in writing, and keep a copy of the written offer. The landlord’s notice is not legally effective if it demands more rent than is actually due, or if it includes any charges other than for past-due rent (for example, late charges, unpaid utility charges, dishonored check fees, or interest).288

If the amount of rent demanded is correct and doesn’t include any other charges, and if you decide not to pay, then you and any other occupants should move out promptly.

If you stay beyond the three days without paying the rent that is properly due, you will be occupying the rental unit unlawfully. The landlord then has a single, powerful remedy: a court action to evict you and recover the unpaid rent (called an “unlawful detainer [eviction] lawsuit” [see The Eviction Process]). Your failure to pay the rent and to leave promptly may also become part of your credit history, which could affect your ability to rent from other landlords.

If the three-day notice is based on something other than failure to pay rent, the notice will state whether you can correct the problem and remain in the rental unit (see three-day notice above). If the problem can be corrected and you want to stay in the rental unit, you must correct the problem by the end of the third day. Once you have corrected the problem, you should promptly notify the landlord or the property manager.

Even if the notice does not state that you can correct the problem, you can try to persuade the landlord that you will correct the problem and be a good tenant if the landlord agrees to your staying. If the landlord agrees, keep your promise immediately. The landlord should then waive (forgive) your violation, and you should be able to stay in the rental unit. However, in the event of another violation, the landlord probably will serve you with another three-day notice, or with a 30-day or 60-day notice.

If you believe that the landlord has acted unlawfully in giving you a three-day notice, or that you have a valid defense to an unlawful detainer lawsuit, you should carefully weigh the pros and cons of contesting the landlord’s likely eviction lawsuit against you if you don’t move out. As part of your decision-making process, you may wish to consult with a lawyer, legal aid organization, tenant-landlord program, or housing clinic. (See “Getting Help From a Third Party“.)

How to count the three days

Begin counting the three days on the first day after the day the notice was served. If the third day falls on a Saturday, Sunday, or holiday, the three-day period will not expire until the following Monday or nonholiday.289 (See “proper service of notices” below for a discussion of service of the notice and the beginning of the notice period.)

PROPER SERVICE OF NOTICES

A landlord’s three-day, 30-day, or 60-day notice to a tenant must be “served” properly to be legally effective. The terms “serve” and “service“refer to procedures required by the law. These procedures are designed to increase the likelihood that the person to whom notice is given actually receives the notice.

A landlord can serve a three-day notice on the tenant in one of three ways: by personal service, by substituted service, or by posting and mailing. The landlord, the landlord’s agent, or anyone over 18 can serve a notice on a tenant.

  • Personal service – To serve you personally, the person serving the notice must hand you the notice (or leave it with you if you refuse to take it).290 The three-day period begins the day after you receive the notice.
  • Substituted service on another person -If the landlord can’t find you at home, the landlord should try to serve you personally at work. If the landlord can’t find you at home or at work, the landlord can use “substituted service” instead of serving you personally.

    To comply with the rules on substituted service, the person serving the notice must leave the notice with a person of “suitable age and discretion” at your home or work and also mail a copy of the notice to you at home.291 A person of suitable age and discretion normally would be an adult at your home or workplace, or a teenage member of your household.

    Service of the notice is legally complete when both of these steps have been completed. The three-day period begins the day after both steps have been completed.

  • Posting and mailing – If the landlord can’t serve the notice on you personally or by substituted service, the notice can be served by taping or tacking a copy to the rental unit in a conspicuous place (such as the front door of the rental unit) and by mailing another copy to you at the rental unit’s address.292 (This service method is commonly called “posting and mailing” or “nailing and mailing.”)

    Service of the notice is not complete until the copy of the notice has been mailed. The three-day period begins the day after the notice was posted and mailed.293

How to count the three days is explained above

A landlord can use any of these methods to serve a 30-day or 60-day notice on a tenant, or can send the notice to the tenant by certified or registered mail with return receipt requested.

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14Jan

Moving Out

Posted by: admin Categories: General
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Giving and Receiving Proper Notice

Tenant’s notice to end a periodic tenancy

To end a periodic rental agreement (for example, a month-to-month agreement), you must give your landlord proper written notice before you move.

You must give the landlord the same amount of notice as there are days between rent payments.193 This means that if you pay rent monthly, you must give the landlord written notice at least 30 days before you move. If you pay rent every week, you must give the landlord written notice at least seven days before you move.194 This is true even if the landlord has given you a 60-day notice to end the rental agreement and you want to leave sooner (see Landlord’s notice to end a periodic tenancy.)195

If your rental agreement specifies a different amount of notice (for example 10 days), you must give the landlord written notice as required by the agreement.196

To avoid later disagreements, date the notice, state the date that you intend to move, and make a copy of the notice for yourself. It’s best to deliver the notice to the landlord or property manager in person, or mail it by certified mail with return receipt requested. (You can also serve the notice by one of the methods described under “Proper Service of Notices“.)197

You can give the landlord notice any time during the rental period, but you must pay full rent during the period covered by the notice. For example, say you have a month-to-month rental agreement, and pay rent on the first day of each month. You could give notice any time during the month (for example, on the tenth). Then, you could leave 30 days later (on the tenth of the following month, or earlier if you chose to). But you would have to pay rent for the first 10 days of the next month whether you stay for those 10 days or move earlier. (Exception: You would not have to pay rent for the entire 10 days if you left earlier, and the landlord rented the unit to another tenant during the 10 days, and the new tenant paid rent for all or part of the 10 days.)198

The rental agreement or lease must state the name and address of the person or entity to whom you must make rent payments (see When You Rent section).If this address does not accept personal deliveries, you can mail your notice to the owner at the name and address stated in the lease or rental agreement. If you can show proof that you mailed the notice to the stated name and address (for example, a receipt for certified mail), the law assumes that the notice is receivable by the owner on the date of postmark.199

Tenant’s notice to end tenancy due to domestic violence, sexual assault, or stalking

You may notify your landlord that you or another household member has been a victim of domestic violence, sexual assault, or stalking, and that you intend to move out. However, you would still be responsible for payment of the rent for 30 days following your notice. You are required to attach to your notice to the landlord a copy of the restraining order, emergency protective order, or police report, within 60 days of the day such order or report was issued or made.200

A landlord cannot end or refuse to renew your tenancy based upon the fact that you or a member of your household is a victim of a documented act of domestic violence, sexual assault, or stalking.200.1 If you request that the landlord change your locks and the landlord fails to do so within 24 hours of your request, you may then change the locks yourself. If the restrained person is also a tenant of the unit, that person is still responsible for upholding their end of the lease. These rules apply to leases signed after January 1, 2011.200.2

Landlord’s notice to end a periodic tenancy

A landlord can end a periodic tenancy (for example, a month-to-month tenancy) by giving the tenant proper advance written notice. Your landlord must give you 60 days advance written notice that the tenancy will end if you and every other tenant or resident have lived in the rental unit for a year or more.201 However, the landlord must give you 30 days advance written notice in either of the following situations:

  • Any tenant or resident has lived in the rental unit less than one year;202 or
  • The landlord has contracted to sell the rental unit to another person who intends to occupy it for at least a year after the tenancy ends. In addition, all of the following must be true in order for the selling landlord to give you a 30-day notice
  1. The landlord must have opened escrow with a licensed escrow agent or real estate broker, and
  2. The landlord must have given you the 30-day notice no later than 120 days after opening the escrow, and
  3. The landlord must not previously have given you a 30-day or 60-day notice, and
  4. The rental unit must be one that can be sold separately from any other dwelling unit. (For example, a house or a condominium can be sold separately from another dwelling unit.) 203

The landlord usually isn’t required to state a reason for ending the tenancy in the 30-day or 60-day notice (see “Thirty-Day or Sixty-Day Notice“). The landlord can serve the 30-day or 60-day notice by certified mail or by one of the methods described under “Proper Service of Notices“.204

Note: In the circumstances described in the Three Day Notice section, the landlord can give the tenant just three days’ advance written notice.

If you receive a 30-day or 60-day notice, you must leave the rental unit by the end of the 30th or 60th day after the date on which the landlord served the notice (see Written Notices of Termination). For example, if the landlord served a 60-day notice on July 16, you would begin counting the 60 days on July 17, and the 60-day period would end on September 14. If September 14 falls on a weekday, you would have to leave on or before that date. However, if the end of the 60-day period falls on a Saturday, you would not have to leave until the following Monday, because Saturdays and Sundays are legal holidays. Other legal holidays also extend the notice period.205

If you don’t move by the end of the notice period, the landlord can file an unlawful detainer lawsuit to evict you (see The Eviction Process).

What if the landlord has given you a 60-day notice, but you want to leave sooner? You can give the landlord the same amount of notice as there are days between rent payments (for example, 30 days’ notice if you pay rent monthly) provided that –

  • The amount of your notice is at least as long as the number of days between rent payments, and
  • Your proposed termination date is before the landlord’s termination date.206

What if the landlord has given you a 30-day or 60-day notice, but you want to continue to rent the property, or you believe that you haven’t done anything to cause the landlord to give you a notice of termination? In this kind of situation, you can try to convince the landlord to withdraw the notice. Try to find out why the landlord gave you the notice. If it’s something within your control (for example, consistently late rent, or playing music too loud), assure the landlord that in the future, you will pay on time or keep the volume turned down. Then, keep your promise. If the landlord won’t withdraw the notice, you will have to move out at the end of the 30-day or 60-day period, or be prepared for the landlord to file an unlawful detainer lawsuit to evict you.

Special rules may apply in cities with rent control. For example, in some communities with rent control ordinances, a periodic tenancy cannot be ended by the landlord without a good faith “just cause” or “good cause” reason to evict. In these communities, the landlord must state the reason for the termination, and the reason may be reviewed by local housing authorities.

Suppose that you are a tenant who participates in the Section 8 housing voucher program. While the lease is in effect, the landlord must have good cause to terminate (end) the tenancy. Examples of good cause include serious or repeated violations of the lease, or criminal activity that threatens the health or safety of other residents.207 However, incidents of domestic violence may not be used as a violation by the victim or threatened victim as good cause for the landlord to terminate the tenancy, occupancy rights or assistance of the victim.208

The landlord must give the tenant a three-day or 30-day or 60-day notice of termination under California law (see “Written Notices of Terminations“), and both the landlord and the tenant must give the public housing agency a copy of the notice.209 What if the landlord simply decides not to renew the lease, or decides to terminate the HAP (housing assistance payment) contract? In this case, the landlord must give the tenant 90 days’ advance written notice of the termination date.210 If the tenant doesn’t move out by the end of the 90 days, the landlord must follow California law to evict the tenant.211

If you live in government-assisted housing or in an area with rent control, check with your local housing officials to see if any special rules apply in your situation.

ADVANCE PAYMENT OF LAST MONTH’S RENT

Many landlords require tenants to pay “last month’s rent” at the beginning of the tenancy as part of the security deposit or at the time the security deposit is paid. Whether the tenant can use this amount at the end of the tenancy to pay the last month’s rent depends on the language used in the rental agreement or lease.212

Suppose that at the beginning of the tenancy, you gave the landlord a payment for the last month’s rent and for the security deposit, and that the lease or rental agreement labels part of this up front payment “last month’s rent.” In this situation, you have paid the rent for your last month in the rental unit. However, sometimes landlords raise the rent before the last month’s rent becomes due. In this situation, can the landlord require you to pay the amount of the increase for the last month?

The law does not provide a clear answer to this question. If your lease or rental agreement labels part of your up front payment “last month’s rent,” then you have a strong argument that you paid the last month’s rent when you moved in. In this situation, the landlord should not be able to require you to pay the amount of the increase for the last month.213 However, if your lease or rental agreement labels part of your up front payment “security for last month’s rent,” then the landlord has a good argument that you have not actually paid the last month’s rent, but have only provided security for it. In this situation, the landlord could require you to pay the amount of the increase for the last month.

For example, say that your rental agreement labeled part of the total deposit that you paid when you moved in “security for last month’s rent,” or that “last month’s rent” is one of the items listed in your rental agreement under the heading “Security.” Suppose that your rent was $500 when you moved in and that you paid your landlord $500 as “;security for the last month’s rent.” Suppose that you also paid your landlord an additional $500 as a security deposit. If the landlord properly raised your rent to $550 while you were living in the rental unit, you can expect to owe the landlord $50 for rent during the last month of your tenancy (that is, the current rent [$550] minus the prepaid amount [$500] equals $50 owed).

If your rental agreement calls your entire up front payment a “security deposit” and does not label any part of it “last month’s rent,” or “security for last month’s rent,” then you will have to pay the last month’s rent when it comes due. In this situation, you cannot use part of your security deposit to pay the last month’s rent. However, you will be entitled to a refund of your security deposit, as explained in the next section.

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7Jan

When to Evict a Tenant

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Tenant Eviction

For a number of reasons, tenants sometimes can’t or don’t uphold their end of the lease. Unfortunately, careful screening can’t prevent unemployment, unwelcome pets, or destructive parties. Evicting a leaseholder is a very drastic measure, but when is enough, enough? Know that when a tenant is unable to live up to their terms of the rental agreement, you are within your rights to begin the eviction procedure.

Here are 4 of the most common reasons for eviction.

 1.Failure to pay rent. If the tenant fails to send the check, does not respond to your calls and notices, or refuses to make the payment, the next logical step would be give a termination notice (also known as a “Pay or Quit” notice).

2. Violating an important provision of the lease. If your agreement explicitly forbids subleasing, moving in addition occupants or pets, it is up to you to decide whether you will amend the lease to allow it. If you refuse consent or find the subtenant unacceptable, but the unwelcome guest still moves in, begin the eviction process.

3. Damaging the property. In some cases, housekeeping practices can create unhealthy and dangerous situations. If there’s a buildup of waste, damaging alterations, or substantial destruction of property that decrease the property’s value, you can take the steps to terminate the lease and evict.

4. Illegal activity. You don’t need to wait until the tenant is convicted of a crime or arrested to take action. If you can provide fact-based suspicion that illegal proceedings are taking place, you may be able to evict the tenant. First, check with state law so you know what level of proof is needed to support the termination.

 

 

 

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