Ziegel Group Realty
Sherman Oaks REALTORS® – Property Management – Leasing Services – Real Estate Attorney
18May

Tenant Screening and The Credit Report

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Ziegel Group Professional Tenant Screening, Tenant Credit Check, Property Management

Approved Credit report form with paperwork

Property Management for Professional Tenant Screening

It is highly recommended to screen a tenant with a credit report. The report gives insight into how well the tenant pays their bills. We at the Ziegel Group always screen tenants after accepting an application. Credit scores are a very legitimate and important piece of information that will give you an idea as to whether or not your tenant can be counted on to pay the rent and if they have enough cash leftover after paying off debtors. A credit score under 600 used to disqualify an applicant but nowadays credit scores are looked upon with a little more leniency than they used to be. The economic downfall in 2008 has changed this criteria a bit. A closer look has to be taken at the credit report. Many people, people looking to rent homes in fact, had their homes foreclosed upon and their credit has taken a big hit. If a prospect has a squeaky clean track record other than the foreclosure or short sale I often will consider it as less of an infraction since it is so common and really something that was not an option to many homeowners who found themselves in a bad mortgage. Another item that I overlook is poor credit history due to medical bills. We all know that medical bills can be extraordinarily expensive and sometimes unavoidable. Some things on a credit report that I never overlook are when a prospect hasn’t paid their utility bills, if they have an eviction, or collections that are within the last 6 months.
It’s important to look at the credit report closely as it can really paint a very accurate picture of how the prospect handles money. Tracking down tenants to collect rent every month is not something that any landlord or property manager wants to do. A credit check shows you current and delinquent accounts, collections, monthly obligations, account balances, FICO credit score, and more.
• Credit Scores are not as straight forward as you might think. Different credit reporting agencies report scores differently, so basing a decision on a score is not always going to provide the same results across all major credit agencies. For example, if the tenant recently lost their home to short sale or foreclosure, their score might be very low based entirely upon the loss of their home and should be factored in accordingly. Most landlords I have spoken with do not reject prospective tenants based on poor credit from the loss of a home.
• When a score is near or above 650, generally you can count on the tenant as a responsible bill payer. However, it’s still a good idea to review the content of the report to make sure there are no current obligations past due. If current obligations are past due, this is an indication that the tenant is financially strapped and may not be able to afford rent.
• Another component of a poor credit score can be related to medical bills. An uninsured person with even a short hospital stay can rack up tens to hundreds of thousands of dollars in medical bills in short order. It’s fairly impractical for most people to pay these bills at the time of visit and as such they can often be turned into collection. Because of this medical bills are often disregarded or lesser regarded when considering a prospective tenant’s credit worthiness. It is however important to take into consideration the tenant will have a portion of their income going to these bills, likely from garnishment. This reduces their income to afford rent and will impact your income to rent formula.

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15May

Tenants Turnover

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One of the biggest cash flow killers in property management is tenant turnover.

Tenants Turnover

When a tenant moves out of your rental property, not only do you miss out on monthly rental income from the unoccupied unit, but the costs continue to add up when you factor in the additional steps it takes to get your newly vacated unit rented again.
Costs Associated with Tenant Turnover:

Administration Costs – Time is money in most industries, and property management is no exception. When it comes to budgeting tenant turnover, you need to factor in the administrative time it takes to market your newly vacant property, process move-out paperwork, coordinate repairs and cleaning services, screen new applicants and process lease agreements for future tenants.

Marketing Costs – Sometimes a simple online listing is all it takes to get your vacant unit rented fast. But in a slower market, advertising your property can involve signs, flyers, or print ads, all of which will contribute to your bottom line.

Showing Costs – For serious prospects that want to visit your listed property, you will need to schedule time out of your day to present the vacant unit in person. If you live far away from your rental property, showing your unit in person can get expensive when you factor in traveling expenses.

Application Processing – Property managers and landlords should always approve rental applicants after reviewing tenant screening reports to discover an applicant’s financial responsibility, job stability, law abiding behavior and rental history. Credit, criminal, and eviction reports all cost money, which can be deferred to the applicant, but they involve time to review in order to make the best approval decision.

Cleaning Costs – Despite your tenants’ best efforts, they might not be able to get your property back to the level of cleanliness you require for the next tenant. Even if you use their security deposit to cover the cost of cleaning and repairs, there might be extra expenses that go beyond the deposit that will come out of your pocket. If the vacating tenant has lived in the property long enough, some of restoration expenses will not be covered by the security deposit at all.

Repair Costs – Once a tenant vacates the home, you have the opportunity to conduct a thorough inspection which may reveal some home maintenance repairs that must be handled before the next tenant moves in. Not only will repairs cost you money, but the longer it takes to get the property market ready, the longer you will be without rental income.

Lost Income – Without steady income coming in from regular rental payments, you will notice a hit to your bank account, that will continue to add up the longer your property sits vacant. This is will be especially noticeable if you are relying on rental income to cover a mortgage payment on the property.

Save Money During Tenant Turnover
Although tenant turnover is unavoidable in this industry, there are some steps you can take to manage the transition and keep costs at a minimum.

Start marketing the vacant property early – As soon as your current tenant gives notice about their intent to move, start looking for a new tenant. In a perfect world, you will have a new tenant ready to move in as soon as the current one moves out.

Minimize in-person showings – Only show the property to serious applicants, and try to get some initial screening questions out of the way in a phone interview, by asking some qualifying questions about income and job stability. You can also host an open house to show the property to multiple prospects at once.

Do a move-out inspection prior to your tenant vacating the unit. Set up a time to do a walk-through with your tenant so you can point out areas that need to be cleaned or fixed by your tenant. This step will help your tenants take an active approach to getting the property back to the condition it was when they moved in. You can also take this time to make a note of what additional maintenance you will need to do once the unit is vacant.

Reduce Tenant Turnover – The simple solution for avoiding tenant turnover is prevention. While you won’t be able to stop a tenant from moving out of town for a new job or to be closer to family, preventing local moves is the best way to keep vacancies at a minimum. Maintain a positive landlord-tenant relationship with good communication and timely response to tenant requests. Keep your rent priced at a fair market value and keep up on maintenance and property features.
Best case scenario, you will find a long-term, reliable tenant who pays rent on time and takes care of the property, with no intention of moving. But if one of your tenants does decide to move out, understanding the true cost of tenant turnover will help you budget your expenses and manage the process more efficiently.

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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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15Feb

Should I hire a Property Management Company?

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Should I hire a property management company?

Some landlords manage properties on their own or with the help of an employee, such as a resident manager. But sometimes landlords need more help or are not interested in nor have the time to deal with the day-to-day issues that arise when leasing real property. That is when a property management company is needed and can be of service.

Property management companies can be a huge asset to your business and even save you money in the long run.

What Does a Property Management Company Do?

At the Ziegel Group our property management company deals directly with prospects and tenants, saving you time and worry over locating, screening, and interviewing prospective tenants, marketing and leasing your rentals, collecting rent, handling  maintenance and repair issues at our discounted rates, responding to tenant complaints, and when necessary, even pursuing evictions. Plus, a good management company brings its know-how and experience to your property, giving you the peace of mind that comes with knowing your investment is in good hands. Finally, the Ziegel Group is an independent contractor, so you avoid the hassles of being an employer.

When Should You Hire a Property Management Company?

Hiring a property management company has its disadvantages and advantages.

Consider the following factors to determine if hiring the Ziegel Group as your property management company would be a good decision for your investment or business.

You should consider hiring a property management company if:

You have little experience in maintaining a house for others. We know to cost of repair and maintenance and use our own in-house staff or contractors at a discounted rate.

You have lots of properties or rental units. The more rental properties you own and the more units they contain, the more you’re likely not to have the time to deal with the day-to-day management of dealing with tenants and thus the more likely you are to benefit from a management company.

You don’t live near your rental property. If your rental property is located far from where you live, hiring a property management company can be invaluable in dealing with the many issues that you will not be able to handle from afar.

You’re not interested in hands-on management. Many landlords look forward to the challenge of finding good tenants and the rewards of maintaining a safe and attractive property on their own. But if you view rental property ownership strictly as an investment and want little or nothing to do with the day-to-day management of your properties, consider hiring the Ziegel Group to manage your property.

Your time is limited. Even if you enjoy hands-on management, you may not have much time to devote to your business, especially if isn’t not your day job. And if you prefer to spend your time growing your business, including searching for new properties, arranging financing for renovations, or changing your business structure, then a management company may be a good way to spend your money.

You don’t want to be an employer. If you hire a resident manager or other employees to help with your property, you become an employer. You’ll have to handle payroll and deal with a host of other legal requirements and considerations. But, because a property management company isn’t your employee (it’s an independent contractor), and neither are the people who work for the company, by using one you avoid the hassles of being an employer.

Your property is part of an affordable housing program. If you participate in an affordable housing program, things can get complicated. Usually, in these programs the landlord receives financial assistance, which may be in the form of a grant, low-interest loan, or tax credits, in return for agreeing to rent at least part of the property to tenants earning below a certain income level. In order to continue receiving the assistance, the landlord must comply with a complicated set of rules. With so much at stake, it’s often worth hiring a property management company that has expertise and experience with the particular housing program in question.

The Ziegel Group. We are here to serve you and would be pleased to have a consultation with you to determine whether we can serve you as your Property Management Company. Call us today to set up an in person, video, or telephonic appointment.

 

 

 

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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

Refunds Of Security Deposits

Posted by: admin Categories: General
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Common problems and how to avoid them

The most common disagreement between landlords and tenants is over the refund of the tenant’s security deposit after the tenant has moved out of the rental unit. California law therefore specifies procedures that the landlord must follow for refunding, using, and accounting for tenants’ security deposits.

California law specifically allows the landlord to use a tenant’s security deposit for four purposes:

  • For unpaid rent;
  • For cleaning the rental unit when the tenant moves out, but only to make the unit as clean as it was when the tenant first moved in;214
  • For repair of damages, other than normal wear and tear, caused by the tenant or the tenant’s guests; and
  • If the lease or rental agreement allows it, for the cost of restoring or replacing furniture, furnishings, or other items of personal property (including keys), other than because of normal wear and tear.215

A landlord can withhold from the security deposit only those amounts that are reasonably necessary for these purposes. The security deposit cannot be used for repairing defects that existed in the unit before you moved in, for conditions caused by normal wear and tear during your tenancy or previous tenancies, or for cleaning a rental unit that is as clean as it was when you moved in.216 A rental agreement or lease can never state that a security deposit is “nonrefundable.”217

Under California law, 21 calendar days or less after you move, your landlord must either:

  • Send you a full refund of your security deposit, or
  • Mail or personally deliver to you an itemized statement that lists the amounts of any deductions from your security deposit and the reasons for the deductions, together with a refund of any amounts not deducted.218

The landlord also must send you copies of receipts for the charges that the landlord incurred to repair or clean the rental unit and that the landlord deducted from your security deposit. The landlord must include the receipts with the itemized statement.219 The landlord must follow these rules:

  • If the landlord or the landlord’s employees did the work – The itemized statement must describe the work performed, including the time spent and the hourly rate charged. The hourly rate must be reasonable.
  • If another person or business did the work – The landlord must provide you copies of the person’s or business’ invoice or receipt. The landlord must provide the person’s or business’ name, address, and telephone number on the invoice or receipt, or in the itemized statement.
  • If the landlord deducted for materials or supplies – The landlord must provide you a copy of the invoice or receipt. If the item used to repair or clean the unit is something that the landlord purchases regularly or in bulk, the landlord must reasonably document the item’s cost (for example, by an invoice, a receipt or a vendor’s price list)220
  • If the landlord made a good faith estimate of charges – The landlord is allowed to make a good faith estimate of charges and include the estimate in the itemized statement in two situations: (1) the repair is being done by the landlord or an employee and cannot reasonably be completed within the 21 days, or (2) services or materials are being supplied by another person or business and the landlord does not have the invoice or receipt within the 21 days. In either situation, the landlord may deduct the estimated amount from your security deposit. In situation (2), the landlord must include the name, address and telephone number of the person or business that is supplying the services or materials.
    Within 14 calendar days after completing the repairs or receiving the invoice or receipt, the landlord must mail or deliver to you a correct itemized statement, the invoices and receipts described above, and any refund to which you are entitled.221

The landlord must send the itemized statement, copies of invoices or receipts, and any good faith estimate to you at the address that you provide. If you do not provide an address, the landlord must send these documents to the address of the rental unit that you moved from.222

The landlord is not required to send you copies of invoices or receipts, or a good faith estimate, if the repairs or cleaning cost less than $126 or if you waive your right to receive them.223 If you wish to waive the right to receive these documents, you may do so by signing a waiver when the landlord gives you a 30-day or 60-day notice to end the tenancy (see Landlord’s notice to end a periodic tenancy), when you give the landlord a 30-day notice to end the tenancy (see Terminations and Evictions), when the landlord servers you with a three-day note to end the tenancy (see Three-day notice) or after any of these notices. If you have a lease, you may waive this right no earlier than 60 days before the lease ends. The waiver form given to you by the landlord must include the text of the security deposit law that describes your right to receive receipts.246

What if the repairs cost less than $126 or you waived your right to receive copies of invoices, receipts and any good faith estimate? The landlord still must send you an itemized statement 21 calendar days or less after you move, along with a refund of any amounts not deducted from your security deposit. When you receive the itemized statement, you may decide that you want copies of the landlord’s invoices, receipts and any good faith estimate. You may request copies of these documents from the landlord within 14 calendar days after you receive the itemized statement. It’s best to make this request both orally and in writing. Keep a copy of your letter or e-mail. The landlord must send you copies of invoices, receipts and any good faith estimate within 14 calendar days after he or she receives your request.247

What should you do if you believe that your landlord has made an improper deduction from your security deposit, or if the landlord keeps all of the deposit without good reason?

Tell the landlord or the landlord’s agent why you believe that the deductions from your security deposit are improper. Immediately ask the landlord or agent for a refund of the amount that you believe you’re entitled to get back. You can make this request by phone or e-mail, but you should follow it up with a letter. The letter should state the reasons that you believe the deductions are improper, and the amount that you feel should be returned to you. Keep a copy of your letter. It’s a good idea to send the letter to the landlord or agent by certified mail and to request a return receipt to prove that the landlord or agent received the letter. Or, you can deliver the letter personally and ask the landlord or agent to acknowledge receipt by signing and dating your copy of the letter.

If the landlord or agent still doesn’t send you the refund that you think you’re entitled to receive, try to work out a reasonable compromise that is acceptable to both of you. You also can suggest that the dispute be mediated by a neutral third person or agency (Getting Help From a Third Party.) You can contact one of the agencies listed in Appendix 3 for assistance. If none of this works, you may want to take legal action (see below).

What if the landlord doesn’t provide a full refund, or a statement of deductions and a refund of amounts not deducted, by the end of the 21-day period as required by law? According to a California Supreme Court decision, the landlord loses the right to keep any of the security deposit and must return the entire deposit to you.248 Even so, it may be difficult for you to get your entire deposit back from the landlord.249 You should contact one of the agencies listed in Getting Help From a Third Party for advice.

Practically speaking, you have two options if the landlord doesn’t honor the 21-day rule. The first step for both is to call and write the landlord to request a refund of your entire security deposit. You can also suggest that the dispute be mediated. If the landlord presents good reasons for keeping some or all of your deposit for a purpose listed above, it’s probably wise to enter into a reasonable compromise with the landlord. This is because the other option is difficult and the outcome may be uncertain.

The other option is to sue the landlord in small claims court for return of your security deposit. However, the landlord then can file a counterclaim against you. In the counterclaim, the landlord can assert a right to make deductions from the deposit, for example, for unpaid rent or for damage to the rental that the landlord alleges that you caused. Each party then will have to argue in court why he or she is entitled to the deposit.250

Initial Inspection Before Tenant Moves Out

A tenant can ask the landlord to inspect the rental unit before the tenancy ends. During this “Initial Inspection,” the landlord or the landlord’s agent identifies defects or conditions that justify deductions from the tenant’s security deposit. This gives the tenant the opportunity to do the identified cleaning or repairs in order to avoid deductions from the security deposit. The tenant has the right to be present during the inspection.

The landlord must perform an initial inspection as described in this sidebar if the tenant requests it, but cannot make an initial inspection unless the tenant requests it. However, the landlord is not required to perform an initial inspection if the landlord has served the tenant with a three-day notice (an eviction notice) for one of the reasons specified in footnote 224.

Landlord’s notice

The landlord must give the tenant written notice of the tenant’s right to request an initial inspection of the rental and to be present during the inspection. The landlord must give this notice to the tenant a “reasonable time” after either the landlord or the tenant has given the other written notice of intent to terminate (end) the tenancy (see Moving Out). If the tenant has a lease, the landlord must give the tenant this notice a “reasonable time” before the lease ends. If the tenant does not request an initial inspection, the landlord does not have any other duties with respect to the initial inspection.225

Scheduling the inspection

When the tenant requests an initial inspection, the landlord and the tenant must try to agree on a mutually convenient date and time for the inspection. The inspection cannot be scheduled earlier than two weeks before the end of the tenancy or lease term. In any event, the inspection should be scheduled to allow the tenant ample time to perform repairs or do cleaning identified during the initial inspection.226 The landlord must give the tenant at least 48 hours’ advance written notice of the date and time of the inspection whether or not the parties have agreed to a date and time for the inspection. The landlord is not required to give the 48-hour notice to the tenant if:

  • the parties have not agreed on a date and time, and the tenant no longer wants the inspection; or
  • the landlord and tenant have agreed in writing to waive (give up) the 48-hour notice requirement.

Itemized statement

The landlord or the landlord’s agent may perform the inspection if the tenant is not present, unless the tenant has previously withdrawn the request for inspection.227

Based on the inspection, the landlord or agent must prepare an itemized statement of repairs or cleaning that the landlord or agent believes the tenant should perform in order to avoid deductions from the tenant’s security deposit. The landlord or agent must give the statement to the tenant if the tenant is present for the inspection, or leave it inside the unit if the tenant is not present.228 The landlord or agent also must give the tenant a copy of the sections of California’s security deposit statute that list lawful uses of tenants’ security deposits.229

The security deposit statute has the effect of limiting the kinds of repairs or cleaning that the landlord or agent may properly include in the itemized statement. Because of this statute, the landlord cannot, for example, use the tenant’s security deposit to repair damages or correct defects in the rental that existed when the tenant moved in or that are the result of ordinary wear and tear.230 Since the landlord cannot use the tenant’s deposit to correct these kinds of defects, the landlord or agent cannot list them in the itemized statement.

Before the tenancy ends, the tenant may make the repairs or do the cleaning described in the itemized statement, as allowed by the rental agreement, in order to avoid deductions from the deposit.231 However, the tenant cannot be required to repair defects or do cleaning if the tenant’s security deposit could not be used properly to pay for that repair or cleaning.

Final inspection

The landlord may perform a final inspection after the tenant has moved out of the rental. The landlord may make a deduction from the tenant’s security deposit to repair a defect or correct a condition:

  • That was identified in the inspection statement and that the tenant did not repair or correct; or,
  • That occurred after the initial inspection; or
  • That was not identified during the initial inspection due to the presence of the tenant’s possessions.232

Any deduction must be reasonable in amount, and must be for a purpose permitted by the security deposit statute.233 Twenty-one calendar days (or less) after the tenancy ends, the landlord must refund any portion of the security deposit that remains after the landlord has made any lawful deductions(see Basic Rules Rules Governing Security Deposits and Refunds of Security Deposits).234

Example

Suppose that you have a month-to-month tenancy, and that you properly give your landlord 30 days’ advance written notice that you will end the tenancy. A few days after the landlord receives your notice, the landlord gives you written notice that you may request an initial inspection and be present during the inspection. A few days after that, the landlord telephones you, and you both agree that the landlord will perform the initial inspection at noon on the 14th day before the end of the tenancy. Forty-eight hours before the date and time that you have agreed upon, the landlord gives you a written notice confirming the date and time of the inspection.

The landlord performs the initial inspection at the agreed time and date, and you are present during the inspection. Suppose that you have already moved some of your possessions, but that your sofa remains against the living room wall. When the landlord completes the inspection, the landlord gives you an itemized statement that lists the following items, and also gives you a copy of the required sections of the security deposit statute. The itemized statement lists the following:

  • Repair cigarette burns on window sill.
  • Repair worn carpet in front of couch.
  • Repair door jamb chewed by your dog.
  • Wash the windows.
  • Clean soap scum in bathtub.

Suppose that you scrub the bathtub until it sparkles, but don’t do any of the repairs or wash the windows. After you move out, the landlord performs the final inspection. Twenty-one days after the tenancy ends, the landlord sends you an itemized statement of deductions, along with a refund of the rest of your security deposit. Suppose that the itemized statement lists deductions from your security deposit for the costs of repairing the window sill, the carpet and the door jamb, and for washing the windows. Has the landlord acted properly?

Whether the landlord has acted properly depends on other facts. Suppose that the cigarette burns were caused by a previous tenant and that the carpet in the room with the couch was 10 years old. According to the security deposit statute, the cigarette burns are defective conditions from another tenancy, and the worn carpet is normal wear and tear, even if some of it occurred while you were a tenant. The statute does not allow the landlord to deduct from your security deposit to make these repairs.235 However, the landlord can deduct a reasonable amount to repair the door jamb chewed by your dog. This is because this damage occurred during your tenancy and is more than normal wear and tear.236

Suppose that the windows were dirty when you moved in, and that they were just as dirty when you moved out. According to the security deposit statute, the windows are in “the same state of cleanliness” as at the beginning of your tenancy. The statute does not allow the landlord to deduct from your security deposit to do this cleaning.237

Now suppose that while you were moving out, you broke the glass in the dining room light fixture and found damage to the wall behind the sofa that you caused when you moved in. Neither defect was listed in the landlord’s itemized statement. Suppose that your landlord nonetheless makes deductions from your security deposit to repair these defects. Has the landlord acted properly in this instance?

The landlord has acted properly, as long as the amounts deducted are reasonably necessary for the repairs made.238 Both of these defects are more than normal wear and tear, and the landlord is allowed to make deductions for defects that occur after the initial inspection, as well as for defects that could not be discovered because of the presence of the tenant’s belongings.239

SUGGESTED APPROACHES TO SECURITY DEPOSIT DEDUCTIONS

California’s security deposit statute specifically allows the landlord to use a tenant’s security deposit for the four purposes stated above. The statute limits the landlord’s deduction from the security deposit to an amount that is “reasonably necessary” for the listed purposes.240

Unfortunately, the statute’s terms “reasonably necessary” and “normal wear and tear” are vague and mean different things to different people. The following suggestions are offered as practical guides for dealing with security deposit issues. While these suggestions are consistent with the law, they are not necessarily the law in this area.

1. Costs of cleaning

A landlord may properly deduct from the departing tenant’s security deposit to make the rental unit as clean as it was when the tenant moved in.241

A landlord cannot routinely charge each tenant for cleaning carpets, drapes, walls, or windows in order to prepare the rental unit for the next tenancy. Instead, the landlord must look at how well the departing tenant cleaned the rental unit, and may charge cleaning costs only if the departing tenant left the rental unit (or a portion of it) less clean than when he or she moved in. Reasonable cleaning costs would include the cost of such things as eliminating flea infestations left by the tenant’s animals, cleaning the oven, removing decals from walls, removing mildew in bathrooms, defrosting the refrigerator, or washing the kitchen floor. But the landlord could not charge for cleaning any of these conditions if they existed at the time that the departing tenant moved in. In addition, the landlord could not charge for the cumulative effects of wear and tear. Suppose, for example, that the tenant had washed the kitchen floor but that it remained dingy because of wax built up over the years. The landlord could not charge the tenant for stripping the built-up wax from the kitchen floor.

The The landlord is allowed to deduct from the tenant’s security deposit only the reasonable cost of cleaning the rental unit.242

2. Carpets and drapes – “useful life” rule

Normal wear and tear to carpets, drapes and other furnishings cannot be charged against a tenant’s security deposit.243 Normal wear and tear includes simple wearing down of carpet and drapes because of normal use or aging, and includes moderate dirt or spotting. In contrast, large rips or indelible stains justify a deduction from the tenant’s security deposit for repairing the carpet or drapes, or replacing them if that is reasonably necessary.

One common method of calculating the deduction for replacement prorates the total cost of replacement so that the tenant pays only for the remaining useful life of the item that the tenant has damaged or destroyed. For example, suppose a tenant has damaged beyond repair an eight-year-old carpet that had a life expectancy of ten years, and that a replacement carpet of similar quality would cost $1,000. The landlord could properly charge only $200 for the two years’ worth of life (use) that would have remained if the tenant had not damaged the carpet.

3. Repainting walls

One approach for determining the amount that the landlord can deduct from the tenant’s security deposit for repainting, when repainting is necessary, is based on the length of the tenant’s stay in the rental unit. This approach assumes that interior paint has a two-year life. (Some landlords assume that interior paint has a life of three years or more.)

Length of stay
Less than 6 months
6 months to 1 year
1 year to 2 years
2 or more years
Deduction
full cost
two-thirds of cost
one-third of cost
no deduction

Using this approach, if the tenant lived in the rental unit for two years or more, the tenant could not be charged for any repainting costs, no matter how dirty the walls were. 244

4. Other damage to walls

Generally, minor marks or nicks in walls are the landlord’s responsibility as normal wear and tear (for example, worn paint caused by a sofa against the wall). Therefore, the tenant should not be charged for such marks or nicks. However, a large number of holes in the walls or ceiling that require filling with plaster, or that otherwise require patching and repainting, could justify withholding the cost of repainting from the tenant’s security deposit. In this situation, deducting for painting would be more likely to be proper if the rental unit had been painted recently, and less likely to be proper if the rental unit needed repainting anyway. Generally, large marks or paint gouges are the tenant’s responsibility.245

5. Common sense and good faith

Remember: These suggestions are not hard and fast rules. Rather, they are offered to help tenants and landlords avoid, understand, and resolve security deposit disputes.

Security deposit disputes often can be resolved, or avoided in the first place, if the parties exercise common sense and good judgment, and deal with each other fairly and in good faith (see Landlord’s and tenant’s duty of good faith and fair dealing). For example, a landlord should not deduct from the tenant’s security deposit for normal wear and tear, and a tenant should not try to avoid responsibility for damages that the tenant has caused.

The requirement that the landlord send the tenant copies of invoices and receipts with the itemized statement of deductions (see above) may help avoid potential security deposit disputes. Before sending these items to the tenant, the landlord has the opportunity to double check them to be sure that the amounts deducted are reasonable, accurate and reasonably necessary for a purpose specified by the security deposit statute. Before challenging the deductions, the tenant has the opportunity to review and carefully evaluate the documentation provided by the landlord. Straightforward conduct by both parties at this stage may avoid or minimize a dispute over deductions from the tenant’s security deposit.

Especially in disputes about security deposits, overreaching by one party only invites the other party to take a hard line. Disputes that reach this level often become unresolvable by the parties and wind up in court.

Refund of security deposits after sale of building

When a building is sold, the selling landlord must do one of two things with the tenants’ security deposits. The selling landlord must either transfer the security deposits to the new landlord, or return the security deposits to the tenants following the sale.251

Before transferring the security deposits to the new landlord, the selling landlord may deduct money from the security deposits. Deductions can be made for the same reasons that deductions are made when a tenant moves out (for example, to cover unpaid rent). If the selling landlord makes deductions from the security deposits, he or she must transfer the balance of the security deposits to the new landlord.252

The selling landlord must notify the tenants of the transfer in writing. The selling landlord must also notify each tenant of any amounts deducted from the security deposit and the amount of the deposit transferred to the new landlord. The written notice must also include the name, address, and telephone number of the new landlord. The selling landlord must send this notice to each tenant by first-class mail, or personally deliver it to each tenant.253

The new landlord becomes legally responsible for the security deposits when the selling landlord transfers the deposits to the new landlord.254

If the selling landlord returns the security deposits to the tenants, the selling landlord may first make lawful deductions from the deposits (see Basic Rules Governing Security Deposits, and above). The selling landlord must send each tenant an itemized statement that lists the amounts of and reasons for any deductions from the tenant’s security deposit, along with a refund of any amounts not deducted (see above).255

If the selling landlord fails to either return the tenants’ security deposits to the tenants or transfer them to the new owner, both the new landlord and the selling landlord are legally responsible to the tenants for the security deposits.256 If the selling landlord and the security deposits can’t be found, the new landlord must refund all security deposits (after any proper deductions) as tenants move out.257

The new landlord can’t charge a new security deposit to current tenants simply to make up for security deposits that the new landlord failed to obtain from the selling landlord. But if the security deposits have been returned to the tenants, or if the new landlord has properly accounted to the tenants for proper deductions taken from the security deposits, the new landlord may legally collect new security deposits.258

If the selling landlord has returned a greater amount to a tenant than the amount of the tenant’s security deposit, the new landlord may recover this excess amount from the tenant.259

Can the new landlord increase the amount of your security deposit? This depends, in part, on the type of tenancy that you have. If you have a lease, the new landlord can’t increase your security deposit unless this is specifically allowed by the lease. For periodic tenants (those renting month-to-month, for example) the new landlord can increase security deposits only after giving proper advance written notice. In either situation, the total amount of the security deposit after the increase cannot be more than the legal limit (see Rules Rules Governing Security Deposits). The landlord normally cannot require that you pay the security deposit increase in cash. (See “Living in the Rental Unit, Check or Cash“.)

All of this means that it’s important to keep copies of your rental agreement and the receipt for your security deposit. You may need those records to prove that you paid a security deposit, to verify the amount, and to determine whether the landlord had a right to make a deduction from the deposit.260

Legal actions for obtaining refunds of security deposits

Suppose that your landlord does not return your security deposit as required by law, or makes improper deductions from it. If you cannot successfully work out the problem with your landlord, you can file a lawsuit in small claims court for the amount of the security deposit plus court costs, and possibly also a penalty and interest, up to a maximum of $10,000 (If your claim is for a little more than $10,000261, you can waive (give up) the extra amount and still use the small claims court.) For amounts greater than $10,000, you must file in superior court, and you ordinarily will need a lawyer in order to effectively pursue your case. In such a lawsuit, the landlord has the burden of proving that his or her deductions from your security deposit were reasonable.262

If you prove to the court that the landlord acted in “bad faith” in refusing to return your security deposit, the court can order the landlord to pay you the amount of the improperly withheld deposit, plus up to twice the amount of the security deposit as a “bad faith” penalty. The court can award a bad faith penalty in addition to actual damages whenever the facts of the case warrant—even if the tenant has not requested the penalty.263 These additional amounts can also be recovered if a landlord who has purchased your building makes a “bad faith” demand for replacement of security deposits. The landlord has the burden of proving the authority upon which the demand for the security deposits was based.264

Whether you can collect attorney’s fees if you win such a suit depends on whether the lease or rental agreement contains an attorney’s fee clause.265 If the lease or rental agreement contains an attorney’s fee clause, you can claim attorney’s fees as part of the judgment, even if the clause states that only the landlord can collect attorney’s fees.266 However, you can only collect attorney’s fees if you were represented by an attorney.267

TENANT’S DEATH

Suppose that a tenant who has a tenancy for a specified term (for example, a one-year lease) dies. The tenancy continues until the end of the lease term, despite the tenant’s death. Responsibility for the rest of the lease term passes to the tenant’s executor or administrator.268

Now suppose instead that the tenant had a month-to-month tenancy. In this case, the tenancy is terminated (ended) by notice of the tenant’s death.269 The tenancy ends on the 30th day following the tenant’s last payment of rent before the tenant’s death. No 30-day or 60-day notice is required to terminate the tenancy.270

MOVING AT THE END OF A LEASE

A lease expires automatically at the end of the lease term.271 The tenant is expected either to renew the lease before it expires (with the landlord’s agreement) or to move out. A lease usually doesn’t require a tenant to give the landlord any advance written notice when the lease is about to expire. However, the tenant should read the lease to see if it has any provisions covering what happens at the end of the lease.

Before you move, you may want to give the landlord a courtesy notice stating that you do not want to renew your lease.

If you continue living in the rental after the lease expires, and if the landlord accepts rent from you, your tenancy will be a periodic tenancy from that point on. The length of time between your rent payments will determine the type of the tenancy (for example, monthly rent results in a month-to-month tenancy). Except for the length of the agreement, all other provisions of the lease will remain in effect.272 Sometimes, a landlord will give a tenant a 30-day notice before the lease ends to be certain that the tenancy does not continue after the lease expires.273

If you don’t move in time, and if the landlord refuses to accept rent after the lease expires, the landlord can file an eviction lawsuit immediately without giving you any notice (see The Eviction Process). (This may not be true if you live in a rent control jurisdiction.)274

Important: If you want to renew your lease, you should begin negotiating with your landlord in plenty of time before the lease expires. Both your landlord and you will have to agree to the terms of the new lease. This process may take some time if one of you wants to negotiate different terms in the new lease.

Special Rules for Tenants in the Military:A servicemember may terminate (end) a lease any time after entering the military or after the date of the member’s military orders. This right applies to a tenant who joins the military after signing a lease, and to a servicemember who signs a lease and then receives orders for a change of permanent station or deployment for at least 90 days.

The servicemember must give the landlord or the landlord’s agent written notice of termination and a copy of the orders. The servicemember may personally deliver the notice to the landlord or agent, send the notice by private delivery service (such as FedEx or UPS), or send it by certified mail with return receipt requested. Proper termination relieves a servicemember’s dependent, such as a spouse or child, of any obligation under the lease.

When rent is paid monthly, termination takes effect 30 days after the next rent due date that follows delivery of the notice. Rent must be paid on a prorated basis up to the date that the termination takes effect. If rent or lease amounts have been paid in advance for the period following the effective date of termination, the landlord must refund these amounts within 30 days after the effective date. 275

Example: The servicemember pays $600 rent on the tenth of each month under the terms of his lease. The servicemember pays the rent on June 10, and then personally gives the landlord proper notice of termination on June 15. The date that termination takes effect is August 9 (30 days after the July 10 rent due date). The servicemember must pay $600 rent on July 10 for the period from July 10 through August 9. By September 8, the landlord must return any rent paid in advance for the period after the effective date of termination. The landlord also must return any “lease amounts paid in advance” (such as the unused portion of the servicemember’s security deposit) by September 8.

THE INVENTORY CHECKLIST

You and the landlord or the landlord’s agent can use the inventory checklist if you request an initial inspection of the rental unit before you move out (see Initial Inspections Before Tenant Moves Out above). You and the landlord or agent should agree on a mutually convenient date and time for the inspection about two weeks before the end of the tenancy or the lease term. You and the landlord or agent should walk through the rental unit at that time and complete the “Condition Upon Initial Inspection” portion of the checklist.

After you have moved out, the landlord can use the “Condition Upon Departure” portion of the checklist to conduct the final inspection (see the Inventory Checklist). It’s a good idea for you to be present when the landlord conducts the final inspection, but the law does not require that you be present or that the landlord allow you to be present.

If you don’t want an initial inspection, you and the landlord should make arrangements for a final inspection close to the time that you move out. You and the landlord or agent should walk through the rental and complete the “Condition Upon Departure” portion of the checklist. Ideally, this walkthrough should occur after you have moved all of your belongings and have thoroughly cleaned the rental unit. Carefully completing the checklist at this point will help identify problem areas, and will help avoid disagreements after you have moved.

For example, you can identify repairs or cleaning that may be needed by comparing items noted under “Condition Upon Arrival” and “Condition Upon Departure.” Items identified as needing repair or cleaning may result in deductions from your security deposit, unless you take care of them yourself or reach an agreement with the landlord.

Both you and the landlord or agent should sign and date the inventory checklist after each inspection. (The landlord or agent should sign the checklist even if you’re not present.) Be sure to get a copy of the signed form after each inspection.

See additional suggestions regarding the inventory checklist on the Inventory Checklist, and “Refunds of Security Deposits“.

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14Jan

Having Repairs Made

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If a tenant believes that his or her rental unit needs repairs, and that the landlord is responsible for the repairs under the implied warranty of habitability, the tenant should notify the landlord. Since rental units typically are business investments for landlords, most landlords want to keep them safe, clean, attractive, and in good repair.

It’s best for the tenant to notify the landlord of damage or defects by both a telephone call and a letter. The tenant should specifically describe the damage or defects and the required repairs in both the phone call and the letter. The tenant should date the letter and keep a copy to show that notice was given and what it said. If the tenant gives notice to the landlord by e-mail or fax, the tenant should follow up with a letter. (See “Giving the landlord notice“.)

The tenant should send the letter to the landlord, manager, or agent by certified mail with return receipt requested. Sending the notice by certified mail is not required by law, but is a very good idea. Or, the tenant (or a friend) may personally deliver the notice to the landlord, manager, or agent and ask for a receipt to show that the notice was received. The tenant should keep a copy of the notice and the receipt, or some other evidence that the notice was delivered. (See “Giving the landlord notice“.)

If the landlord doesn’t make the requested repairs, and doesn’t have a good reason for not doing so, the tenant may have one of several remedies, depending on the seriousness of the repairs. These remedies are discussed in the rest of this section. Each of these remedies has its own risks and requirements, so the tenant should use them carefully.

The “repair and deduct” remedy

The “repair and deduct” remedy allows a tenant to deduct money from the rent, up to the amount of one month’s rent, to pay for repair of defects in the rental unit.156 This remedy covers substandard conditions that affect the tenant’s health and safety, and that substantially breach the implied warranty of habitability.157 (See discussion of the implied warranty of habitability.) Examples might include a leak in the roof during the rainy season, no hot running water, or a gas leak.

As a practical matter, the repair and deduct remedy allows a tenant to make needed repairs of serious conditions without filing a lawsuit against the landlord. Because this remedy involves legal technicalities, it’s a good idea for the tenant to talk to a lawyer, legal aid organization, or tenants’ association before proceeding.

The basic requirements and steps for using the repair and deduct remedy are as follows:

  1. 1. The defects must be serious and directly related to the tenant’s health and safety.158
  2. 2. The repairs cannot cost more than one month’s rent.
  3. 3. The tenant cannot use the repair and deduct remedy more than twice in any 12-month period.
  4. 4. The tenant or the tenant’s family, guests, or pets must not have caused the defects that require repair.
  5. 5. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed. (See “Giving the landlord notice“.)
  6. 6. The tenant must give the landlord a reasonable period of time to make the needed repairs.
  • What is a reasonable period of time? This depends on the defects and the types of repairs that are needed. The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the situation. For example, if the furnace is broken and it’s very cold outdoors, two days may be considered reasonable (assuming that a qualified repair person is available within that time period).
  1. 7. If the landlord doesn’t make the repairs within a reasonable period of time, the tenant may either make the repairs or hire someone to do them. The tenant may then deduct the cost of the repairs from the rent when it is due. The tenant should keep all receipts for the repairs.
  • It’s a good idea, but not a legal requirement, for the tenant to give the landlord a written notice that explains why the tenant hasn’t paid the full amount of the rent. The tenant should keep a copy of this notice.

Risks: The defects may not be serious enough to justify using the repair and deduct remedy. In that event, the landlord can sue the tenant to recover the money deducted from the rent, or can file an eviction action based on the nonpayment of rent. If the tenant deducted money for repairs not covered by the remedy, or didn’t give the landlord proper advance notice or a reasonable time to make repairs, the court can order the tenant to pay the full rent even though the tenant paid for the repairs, or can order that the eviction proceed.

The landlord may try to evict the tenant or raise the rent because the tenant used the repair and deduct remedy. This kind of action is known as a “retaliatory eviction” (see section on Retaliatory Eviction). The law prohibits this type of eviction, with some limitations.159

The “abandonment” remedy

Instead of using the repair and deduct remedy, a tenant can abandon (move out of) a defective rental unit. This remedy is called the” abandonment” remedy. A tenant might use the abandonment remedy where the defects would cost more than one month’s rent to repair,160 but this is not a requirement of the remedy. The abandonment remedy has most of the same requirements and basic steps as the repair and deduct remedy.161

In order to use the abandonment remedy, the rental unit must have substandard conditions that affect the tenant’s health and safety, and that substantially breach the implied warranty of habitability.162 (See discussion of the implied warranty of habitability.) If the tenant uses this remedy properly, the tenant is not responsible for paying further rent once he or she has abandoned the rental unit.163

The basic requirements and steps for lawfully abandoning a rental unit are:

  1. 1. The defects must be serious and directly related to the tenant’s health and safety.164
  2. 2. The tenant or the tenant’s family, guests, or pets must not have caused the defects that require repair.
  3. 3. The tenant must inform the landlord, either orally or in writing, of the repairs that are needed. (See “Giving the landlord notice,” below).
  4. 4. The tenant must give the landlord a reasonable period of time to make the needed repairs.
  • What is a reasonable period of time? This depends on the defects and the types of repairs that are needed. The law usually considers 30 days to be reasonable, but a shorter period may be considered reasonable, depending on the circumstances. For example, if tree roots block the main sewer drain and none of the toilets or drains work, a reasonable period might be as little as one or two days.
  1. 5. If the landlord doesn’t make the repairs within a reasonable period of time, the tenant should notify the landlord in writing of the tenant’s reasons for moving and then actually move out. The tenant should return all the rental unit’s keys to the landlord. The notice should be mailed or delivered as explained in “Giving the landlord notice” below. The tenant should keep a copy of the notice.
  • It’s a good idea, but not a legal requirement, for the tenant to give the landlord written notice of the tenant’s reasons for moving out. The tenant’s letter may discourage the landlord from suing the tenant to collect additional rent or other damages. A written notice also documents the tenant’s reasons for moving, which may be helpful in the event of a later lawsuit. If possible, the tenant should take photographs or a video of the defective conditions or have local health or building officials inspect the rental unit before moving. The tenant should keep a copy of the written notice and any inspection reports and photographs or videos.

Risks: The defects may not affect the tenant’s health and safety seriously enough to justify using the remedy. The landlord may sue the tenant to collect additional rent or damages.

The “rent withholding” remedy

A tenant may have another option for getting repairs made – the “rent withholding” remedy.

By law, a tenant is allowed to withhold (stop paying) some or all of the rent if the landlord does not fix serious defects that violate the implied warranty of habitability.165 (See discussion of the implied warranty of habitability.) In order for the tenant to withhold rent, the defects or repairs that are needed must be more serious than would justify use of the repair and deduct and abandonment remedies. The defects must be substantial – they must be serious ones that threaten the tenant’s health or safety.166

The defects that were serious enough to justify withholding rent in Green v. Superior Court167 are listed below as examples:

  • Collapse and nonrepair of the bathroom ceiling.
  • Continued presence of rats, mice, and cockroaches.
  • Lack of any heat in four of the apartment’s rooms.
  • Plumbing blockages.
  • Exposed and faulty wiring.
  • An illegally installed and dangerous stove.

In the Green case, all of these defects were present, and there also were many violations of the local housing and building codes. In other situations, the defects that would justify rent withholding may be different, but the defects would still have to be serious ones that threaten the tenant’s health or safety.

In order to prove a violation of the implied warranty of habitability, the tenant will need evidence of the defects that require repair. In the event of a court action, it is helpful to have photographs or videos, witnesses, and copies of letters informing the landlord of the problem.

Before the tenant withholds rent, it is a good idea to check with a legal aid organization, lawyer, housing clinic, or tenant program to help determine if rent withholding is the appropriate remedy.

The basic requirements and steps for using the rent withholding remedy are:

  1. 1. The defects or the repairs that are needed must threaten the tenant’s health or safety.168
  • The The defects must be serious enough to make the rental unit uninhabitable. For example, see the defects described in the discussion of the Green case above.
  1. 2. The tenant, or the tenant’s family, guests, or pets must not have caused the defects that require repair.
  2. 3. The tenant must inform the landlord either orally or in writing of the repairs that are needed. (See “Giving the landlord notice,” below).
  3. 4. The tenant must give the landlord a reasonable period of time to make the repairs.
  • What is a reasonable period of time? This depends on the defects and the type of repairs that are needed.
  1. 5. If the the landlord doesn’t make the repairs within a reasonable period of time, the tenant can withhold some or all of the rent. The tenant can continue to withhold the rent until the landlord makes the repairs.
  • How much rent can the tenant withhold? While the law does not provide a clear test for determining how much rent is reasonable for the tenant to withhold, judges in rent withholding cases often use one of the following methods. These methods are offered as examples.

Percentage reduction in rent: The percentage of the rental unit that is uninhabitable is determined, and the rent is reduced by that amount. For example, if one of a rental unit’s four rooms is uninhabitable, the tenant could withhold 25 percent of the rent. The tenant would have to pay the remaining 75 percent of the rent. Most courts use this method.

Reasonable value of rental unit: The value of the rental unit in its defective state is determined, and the tenant withholds that amount. The tenant would have to pay the difference between the rental unit’s fair market value (usually the rent stated in the rental agreement or lease) and the rental unit’s value in its defective state.169

  1. 6. The tenant should save the withheld rent money and not spend it. The tenant should expect to have to pay the landlord some or all of the withheld rent.
  • If the tenant withholds rent, the tenant should put the withheld rent money into a special bank account (called an escrow account). The tenant should notify the landlord in writing that the withheld rent money has been deposited in the escrow account, and explain why.

Depositing the withheld rent money in an escrow account is not required by law, but is a very good thing to do for three reasons.

First, as explained under “Risks” below, rent withholding cases often wind up in court. The judge usually will require the tenant to pay the landlord some reduced rent based on the value of the rental unit with all of its defects. Judges rarely excuse payment of all rent. Depositing the withheld rent money in an escrow account assures that the tenant will have the money to pay any “reasonable rent” that the court orders. The tenant will have to pay the rent ordered by the court five days (or less) from the date of the court’s judgment.

Second, putting the withheld rent money in an escrow account proves to the court that the tenant didn’t withhold rent just to avoid paying rent. If there is a court hearing, the tenant should bring rental receipts or other evidence to show that he or she has been reliable in paying rent in the past.

Third, most legal aid organizations and lawyers will not represent a tenant who has not deposited the withheld rent money in an escrow account.

Sometimes, the tenant and the landlord will be able to agree on the amount of rent that is reasonable for the time when the rental unit needed repairs. If the tenant and the landlord can’t agree on a reasonable amount, the dispute will have to be decided in court, or resolved in an arbitration or mediation proceeding (see section on Arbitration and Mediation).

Risks: The defects may not be serious enough to threaten the tenant’s health or safety. If the tenant withholds rent, the landlord may give the tenant an eviction notice (a three-day notice to pay the rent or leave). If the tenant refuses to pay, the landlord will probably go to court to evict the tenant. In the court action, the tenant will have to prove that the landlord violated the implied warranty of habitability.170

If the tenant wins the case, the landlord will be ordered to make the repairs, and the tenant will be ordered to pay a reasonable rent. The rent ordinarily must be paid five days or less from the date of the court’s judgment. If the tenant wins, but doesn’t pay the amount of rent ordered when it is due, the judge will enter a judgment for the landlord, and the tenant probably will be evicted. If the tenant loses, he or she will have to pay the rent, probably will be evicted, and may be ordered to pay the landlord’s attorney’s fees.

There is another risk of using rent withholding: if the tenant doesn’t have a lease, the landlord may ignore the tenant’s notice of defective conditions and seek to remove the tenant by giving him or her a 30-day or 60-day notice to move. This may amount to a “retaliatory eviction” (see section on Retaliatory Actions, Evictions and Discrimination).171 The law prohibits retaliatory evictions, with some limitations.172

Giving the landlord notice

Whenever a tenant gives the landlord notice of the tenant’s intention to repair and deduct, withhold rent, or abandon the rental unit, it’s best to put the notice in writing. The notice should be in the form of a letter, and can be typed or handwritten. The letter should describe in detail the problem and the repairs that are required. The tenant should sign and date the letter and keep a copy.173

The tenant might be tempted to send the notice to the landlord by e-mail or fax. The laws on repairs specify that the tenant may give the landlord notice orally or in writing, but do not mention e-mail or fax. To be certain that the notice complies with the law, the tenant should follow up any e-mailed or faxed notice with a letter describing the damage or defects and the required repairs.

The letter should be sent to the landlord, manager, or agent by certified mail (return receipt requested). Sending the letter by certified mail is not required by law, but is a very good idea. Or, the tenant (or a friend) may personally deliver the notice to the landlord, manager, or agent. The tenant should ask for a signed and dated receipt showing that the notice was received, or ask the landlord to date and sign (or initial) the tenant’s copy of the letter to show that the landlord received the notice. Whatever the method of delivery, it’s important that the tenant have proof that the landlord, or the landlord’s manager or agent, received the notice.

The copy of the letter and the receipt will be proof that the tenant notified the landlord, and also proof of what the notice said. Keep the copy of the letter and the receipt in case of a dispute with the landlord.

The landlord or agent may call the tenant to discuss the request for repairs or to schedule a time to make them. It’s a good idea for the tenant to keep notes of any conversations and phone calls about the request for repairs. During each conversation or immediately after it, the tenant should write down the date and time of the conversation, what both parties said, and the date and time that the tenant made the notes. Important: Neither the tenant nor the landlord can tape record a telephone conversation without the other party’s permission174

Tenant information

An occupant of residential property can invite another person onto the property during reasonable hours, or because of emergency circumstances, to provide information about tenants’ rights or to participate in a tenants’ association or an association that advocates tenants’ rights. The invited person cannot be held liable for trespass.175

Lawsuit for damages as a remedy

The remedies of repair and deduct, abandonment, and rent withholding allow a tenant in a rental unit with serious habitability defects to take action against the landlord without filing a lawsuit. Arbitration and mediation are other methods of resolving disputes about the condition of a rental unit (see section on Arbitration and Mediation).

A tenant has another option: filing a lawsuit against the landlord to recover money damages if the landlord does not repair serious defects in the rental unit in a timely manner.176 This kind of lawsuit can be filed in small claims court or Superior Court, depending on the amount demanded in the suit.177 The tenant can file this kind of lawsuit without first trying another remedy, such as the repair and deduct remedy.

If the tenant wins the lawsuit, the court may award the tenant his or her actual damages, plus “special damages” in an amount ranging from $100 to $5,000.178 “Special damages” are costs that the tenant incurs, such as the cost of a motel room, because the landlord did not repair defects in the rental unit. The party who wins the lawsuit is entitled to recover his or her costs of bringing the suit (for example, court costs), plus reasonable attorney’s fees as awarded by the court.179

The court also may order the landlord to abate (stop or eliminate) a nuisance and to repair any substandard condition that significantly affects the health and safety of the tenant.180 For example, a court could order the landlord to repair a leaky roof, and could retain jurisdiction over the case until the roof is fixed.

In order for a tenant to win such a lawsuit against the landlord, all of the following conditions must be met.181

  • The rental unit has a serious habitability defect. That is, the rental unit contains a lead hazard that endangers the occupants or the public; or substantially lacks any of the a nuisance endangers the health, life, safety, property, or welfare of the occupants or the public; and
  • A housing inspector has inspected the the minimum requirements for habitability listed in the eight categories (see Conditions that make a rental unit legally uninhabitable); or has been declared substandard because, for example, a structural hazard, inadequate sanitation, or premises and has given the landlord or the landlord’s agent written notice of the landlord’s obligation to repair the substandard conditions or abate the nuisance; and
  • The nuisance or substandard conditions continue to exist 35 days after the housing inspector mailed the notice to the landlord or agent, and the landlord does not have good cause for failing to make the repairs; and
  • The nuisance or substandard conditions were not caused by the tenant or the tenant’s family, guests, or pets; and
  • The landlord collects or demands rent, issues a notice of rent increase, or issues a three-day notice to pay rent or quit (see Written Notices of Terminations) after all of the above conditions have been met.

To prepare for filing this kind of lawsuit, the tenant should take all of these basic steps:

  • The tenant should notify the landlord in writing about the conditions that require repair. (See “Giving the landlord notice“.) The rental unit must have serious habitability defects that were not caused by the tenant’s family, guests, or pets.
  • The notice should specifically describe the defects and the repairs that are required.
  • The notice should give the landlord a reasonable period of time to make the repairs.
  • If the landlord doesn’t make the repairs within a reasonable time, the tenant should contact the local city or county building department, health department, or local housing agency and request an inspection.
  • The housing inspector must inspect the rental unit.
  • The housing inspector must give the landlord or the landlord’s agent written notice of the repairs that are required.
  • The substandard conditions must continue to exist 35 days after the housing inspector mailed the notice to the landlord or landlord’s agent. The landlord then must collect or demand rent, raise the rent, or serve a three-day notice to pay rent or quit.
  • The tenant should gather evidence of the substandard conditions (for example, photographs or videos, statements of witnesses, inspection reports) so that the tenant can prove his or her case in court.
  • The tenant should discuss the case with a lawyer, legal aid organization, tenant program, or housing clinic in order to understand what the lawsuit is likely to accomplish, and also the risks involved.182

Resolving complaints out of court

Before filing suit, the tenant should try to resolve the dispute out of court, either through personal negotiation or a dispute resolution program that offers mediation or arbitration of landlord-tenant disputes. If the tenant and the landlord agree, a neutral person can work with both of them to reach a solution. Informal dispute resolution can be inexpensive and fast. (See “Arbitration and Mediation“.) See “Giving the landlord notice” regarding legal requirements for notices.

LANDLORD’S SALE OF THE RENTAL UNIT

If your landlord voluntarily sells the rental unit that you live in, your legal rights as a tenant are not changed. Tenants who have a lease have the right to remain through the end of the lease under the same terms and conditions. The new landlord can end a periodic tenancy (for example, a month-to-month tenancy), but only after giving the tenant the required advance notice. (See “Landlord’s notice to end a periodic tenancy“.)

The sale of the building doesn’t change the rights of the tenants to have their security deposits refunded when they move. The section on Refund of Security Deposits discuss the landlord’s responsibility for the tenants’ security deposits after the rental unit has been sold.

When property is sold in foreclosure

State law provides that a tenant in possession of a rental housing unit at the time a property is sold in foreclosure shall be given 60 days’ written notice to quit before the tenant may be removed from the property.183 However, if your lease was signed before the deed of trust or mortgage was recorded, your lease will not be set aside by the foreclosure.184

Federal law now requires that you be given 90 days’ written notice to quit (leave the property). under the 2009 “protecting tenants at Foreclosure Act,” a buyer of foreclosed property must honor your lease until the end of the lease term, unless the buyer will be moving in and using the property as the buyer’s home.184.1 In that case, you are entitled to 90 days’ notice to quit.184.2 This is also true if you are a month-to-month tenant. the Act creates similar protections for tenants with section 8 vouchers. this rule does not apply to rental agreements that were not the result of arm’s length transactions or where the rent is much less than fair market rent for that property.184.3

California recognizes that tenants of units sold in foreclosure now have a right to this 90-day notice under federal law. specifically, any notice to quit served within one year after a foreclosure sale must also inform renters that they may stay in the unit for at least 90-days.184.4

CONDOMINIUM CONVERSIONS

A landlord who wishes to convert rental property into condominiums must obtain approval from the local city or county planning agency. The landlord also must receive final approval in the form of a public report issued by the State Department of Real Estate. Affected tenants must receive notices at various stages of the application and approval process.185 These notices are designed to allow affected tenants and the public to have a voice in the approval process.186 Tenants can check with local elected officials or housing agencies about the approval process and opportunities for public input.

Perhaps most important, affected tenants must be given written notice of the conversion to condominiums at least 180 days before their tenancies end due to the conversion.187 Affected tenants also must be given a first option to buy the rental unit on the same terms that are being offered to the general public (or better terms). The tenants must be able to exercise this right for at least 90 days following issuance of the Department of Real Estate’s public report.188

DEMOLITION OF DWELLING

The owner of a dwelling must give written notice to current tenants before applying for a permit to demolish the dwelling. The owner also must give this notice to tenants who have signed rental agreements but who have not yet moved in. (See “When You Have Decided to Rent, Condominium Conversion Project” section.) The notice must include the earliest approximate dates that the owner expects the demolition to occur and the tenancy to end.189

INFLUENCING THE TENANT TO MOVE

California law protects a tenant from retaliation by the landlord because the tenant has lawfully exercised a tenant right (see Retaliatory Actions). California law also makes it unlawful for a landlord to attempt to influence a tenant to move by doing any of the following:

  • Engaging in conduct that constitutes theft or extortion.
  • Using threats, force, or menacing conduct that interferes with the tenant’s quiet enjoyment of the rental unit. (The conduct must be of a nature that would create the fear of harm in a reasonable person.)
  • Committing a significant and intentional violation of the rules limiting the landlord’s right to enter the rental unit (see When Can the Landlord Enter the Rental Unit?).190

A landlord does not violate the law by giving a tenant a warning notice, in good faith, that the tenant’s or a guest’s conduct may violate the lease, rental agreement, rules or laws. The notice may be oral or in writing. The law also allows a landlord to give a tenant an oral or written explanation of the lease, rental agreement, rules or laws in the normal course of business.191

If a landlord engages in unlawful behavior as described above, the tenant may sue the landlord in small claims court or Superior Court. If the tenant prevails, the court may award him or her a civil penalty of up to $2,000 for each violation.192 Keep in mind, however, that a lawsuit is not always a good solution. If you are faced with actions such as described above, try to assess the situation realistically. You may want to discuss the situation with a trusted friend, a tenant advisor, or a lawyer who represents tenants. If you are convinced that you cannot work things out with the landlord, then consider your legal remedies.

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14Jan

Dealing With Problems

Posted by: admin Categories: Landlords Tenants
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Most landlord-tenant relationships go smoothly. However, problems sometimes do arise. For example, what if the rental unit’s furnace goes out in the middle of the winter? What happens if the landlord sells the building or decides to convert it into condominiums? This section discusses these and other possible issues and problems in the landlord-tenant relationship.

REPAIRS AND HABITABILITY

A rental unit must be fit to live in; that is, it must be habitable. In legal terms, “habitable” means that the rental unit is fit for occupation by human beings and that it substantially complies with state and local building and health codes that materially affect tenants’ health and safety.129

California law makes landlords and tenants each responsible for certain kinds of repairs, although landlords ultimately are legally responsible for assuring that their rental units are habitable.

Landlord’s responsibility for repairs

Before renting a rental unit to a tenant, a landlord must make the unit fit to live in, or habitable. Additionally, while the unit is being rented, the landlord must repair problems that make the rental unit unfit to live in, or uninhabitable.

The landlord has this duty to repair because of a California Supreme Court case, called Green v. Superior Court,130 which held that all residential leases and rental agreements contain an implied warranty of habitability. Under the “implied warranty of habitability,” the landlord is legally responsible for repairing conditions that seriously affect the rental unit’s habitability.131 That is, the landlord must repair substantial defects in the rental unit and substantial failures to comply with state and local building and health codes.132 However, the landlord is not responsible under the implied warranty of habitability for repairing damages that were caused by the tenant or the tenant’s family, guests, or pets.133

Generally, the landlord also must do maintenance work which is necessary to keep the rental unit liveable.134 Whether the landlord or the tenant is responsible for making less serious repairs is usually determined by the rental agreement.

The law is very specific as to what kinds of conditions make a rental uninhabitable. These are discussed below.

Tenant’s responsibility for repairs

Tenants are required by law to take reasonable care of their rental units, as well as common areas such as hallways and outside areas. Tenants must act to keep those areas clean and undamaged. Tenants also are responsible for repair of all damage that results from their neglect or abuse, and for repair of damage caused by anyone for whom they are responsible, such as family, guests, or pets.135 Tenants’ responsibilities for care and repair of the rental unit are discussed in detail below.

Conditions that make a rental unit legally uninhabitable

There are many kinds of defects that could make a rental unit unlivable. The implied warranty of habitability requires landlords to maintain their rental units in a condition fit for the “occupation of human beings. “136 In addition, the rental unit must “substantially comply” with building and housing code standards that materially affect tenants’ health and safety.137

A rental unit may be considered uninhabitable (unlivable) if it contains a lead hazard that endangers the occupants or the public, or is a substandard building because, for example, a structural hazard, inadequate sanitation, or a nuisance endangers the health, life, safety, property, or welfare of the occupants or the public.138

A dwelling also may be considered uninhabitable (unlivable) if it substantially lacks any of the following:139

  • Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
  • Plumbing facilities in good working order, including hot and cold running water, connected to a sewage disposal system.
  • Gas facilities in good working order.
  • Heating facilities in good working order.
  • An electric system, including lighting, wiring, and equipment, in good working order.
  • Clean and sanitary buildings, grounds, and appurtenances (for example, a garden or a detached garage), free from debris, filth, rubbish, garbage, rodents, and vermin.
  • Adequate trash receptacles in good repair.
  • Floors, stairways, and railings in good repair.

In addition to these requirements, each rental unit must have all of the following:

  • A working toilet, wash basin, and bathtub or shower. The toilet and bathtub or shower must be in a room which is ventilated and allows privacy.
  • A kitchen with a sink that cannot be made of an absorbent material such as wood.
  • Natural lighting in every room through windows or skylights. Windows in each room must be able to open at least halfway for ventilation, unless a fan provides mechanical ventilation.
  • Safe fire or emergency exits leading to a street or hallway. Stairs, hallways, and exits must be kept litter-free. Storage areas, garages, and basements must be kept free of combustible materials.140
  • Operable dead bolt locks on the main entry doors of rental units, and operable locking or security devices on windows.141
  • Working smoke detectors in all units of multi-unit buildings, such as duplexes and apartment complexes. Apartment complexes also must have smoke detectors in common stairwells.142
  • A locking mail box for each unit. The mail box must be consistent with the United States Postal Service standards for apartment housing mail boxes.143
  • Ground fault circuit interrupters for swimming pools and antisuction protections for wading pools in apartment complexes and other residential settings (but not single family residences).144

The implied warranty of habitability is not violated merely because the rental unit is not in perfect, aesthetically pleasing condition. Nor is the implied warranty of habitability violated if there are minor housing code violations, which, standing alone, do not affect habitability.145

While it is the landlord’s responsibility to install and maintain the inside wiring for one telephone jack, it is unclear whether the landlord’s failure to do so is a breach of the implied warranty of habitability.146

An authoritative reference book suggests two additional ways in which the implied warranty of habitability may be violated. The first is the presence of mold conditions in the rental unit that affect the livability of the unit or the health and safety of tenants. The second follows from a new law that imposes obligations on a property owner who is notified by a local health officer that the property is contaminated by methamphetamine. (See When You Have Decided to Rent, Methamphetamine Contamination.) This reference book suggests that a tenant who is damaged by this kind of documented contamination may be able to claim a breach of the implied warranty of habitability.147

Limitations on landlord’s duty to keep the rental unit habitable

Even if a rental unit is unlivable because of one of the conditions listed above, a landlord may not be legally required to repair the condition if the tenant has not fulfilled the tenant’s own responsibilities.

In addition to generally requiring a tenant to take reasonable care of the rental unit and common areas (see above), the law lists specific things that a tenant must do to keep the rental unit liveable.

Tenants must do all of the following

  • Keep the premises “as clean and sanitary as the condition of the premises permits.”
  • Use and operate gas, electrical, and plumbing fixtures properly. (Examples of improper use include overloading electrical outlets; flushing large, foreign objects down the toilet; and allowing any gas, electrical, or plumbing fixture to become filthy.)
  • Dispose of trash and garbage in a clean and sanitary manner.
  • Not destroy, damage, or deface the premises, or allow anyone else to do so.
  • Not remove any part of the structure, dwelling unit, facilities, equipment, or appurtenances, or allow anyone else to do so.
  • Use the premises as a place to live, and use the rooms for their intended purposes. For example, the bedroom must be used as a bedroom, and not as a kitchen.148
  • Notify the landlord when dead bolt locks and window locks or security devices don’t operate properly.149

However, a landlord may agree in writing to clean the rental unit and dispose of the trash.150

If a tenant violates these requirements in some minor way, the landlord is still responsible for providing a habitable dwelling, and may be prosecuted for violating housing code standards. If the tenant fails to do one of these required things, and the tenant’s failure has either substantially caused an unlivable condition to occur or has substantially interfered with the landlord’s ability to repair the condition, the landlord does not have to repair the condition.151 However, a tenant cannot withhold rent or has no action against the landlord for violating the implied warranty of habitability if the tenant has failed to meet these requirements.152

Responsibility for other kinds of repairs

As for less serious repairs, the rental agreement or lease may require either the tenant or the landlord to fix a particular item. Items covered by such an agreement might include refrigerators, washing machines, parking places, or swimming pools. These items are usually considered “amenities,” and their absence does not make a dwelling unit unfit for living.

These agreements to repair are usually enforceable in accordance with the intent of the parties to the rental agreement or lease.153

Tenant’s agreement to make repairs

The landlord and the tenant may agree in the rental agreement or lease that the tenant will perform all repairs and maintenance in exchange for lower rent.154 Such an agreement must be made in good faith: there must be a real reduction in the rent, and the tenant must intend and be able to make all the necessary repairs. When negotiating the agreement, the tenant should consider whether he or she wants to try to negotiate a cap on the amount that he or she can be required to spend making repairs. Regardless of any such agreement, the landlord is responsible for maintaining the property as required by state and local housing codes.155

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