I am a tenant, can you help me defend an eviction?
No. The Duringer Law Group is one of the very few, if not the only law firm that limits its practice to the representation of owners and managers of rental property exclusively. Since we represent many landlords throughout Southern California, there is a high probability that we currently represent the owner or management company managing your apartment. The vast majority of landlords are willing to discuss arrangements with you to work out any issues that you are now facing. Try calling your landlord, or his attorney, be honest, and try to reach a solution. The last thing you want to do is play games with the system. Odds are you will lose and have a judgment entered against you that will remain on your tenant profile and the credit bureaus for 10 years or longer. It will be difficult, if not impossible, to rent again, and you will have to pay the money back, along with the attorney fees and costs incurred by your landlord. Before you go down that path, try and work it out.
I have property in Southern California, how long does a typical eviction take?
Unlawful Detainers, or evictions, have priority in the courts and move faster than any other civil action. The timeline differs by court and by county. The typical uncontested eviction handled by our firm, from the filing of the complaint through lockout by the Sheriff, is 16 to 18 days. Contested cases, those where the tenant files an answer or some other pleading, typically take 28 to 35 days. These timelines are typical for Orange, Riverside, San Bernardino, and Ventura counties. Los Angeles and San Diego courts generally require an extra 7 to 14 days.
What does a typical residential eviction cost?
The typical uncontested residential unlawful detainer action filed in California runs about $655.00 to $745.00, depending on the county of filing. This includes eviction law attorney fees, superior court filing fees, process server fees for one adult, and the necessary Sheriff fees. Money judgments are an additional $85.00. About half of all our cases are uncontested, that is, no court appearance is necessary and the tenant does not challenge the eviction action. In the event your matter is contested, a single court appearance will typically be necessary. The typical fee for a court or a trial appearance is $350.00. Some tenants are in for a fight, and they file multiple motions and appearances to delay or challenge the pleadings. These require aggressive opposition and additional court appearances. The typical contested residential eviction in California runs approximately $1,105.00 to $1,165.00.
Additional costs would be incurred if additional occupants need to be named and served, or if the demand is over $10,000.00. In the event multiple court appearances are required, our office bills a flat rate of $350.00 for most court appearances, provided that appearance does not exceed four hours. Tenant bankruptcies, discovery, and jury trials are rare and are generally billed on an hourly basis. Please keep in mind that some tenants spend a great deal of time and efforts trying to drag out and delay the eviction process. In matters where delay tactics are used by the tenant, additional fees and costs will be incurred.
Additionally, as we have no control over the costs and fees charged by the California court system, these costs may change without prior notice. Court and Sheriff fees are usually adjusted in January of each year, and the figures above are current as of January 2015, but may change without notice as a result of the Superior court or the Sheriff altering their fee schedule. Please contact our office to verify the current fees in effect.
Does your firm handle commercial cases as well?
Yes. The firm represents clients in both residential and commercial unlawful detainer matters. The court process is identical. Our fees for a commercial eviction are $350.00 plus costs in the uncontested matter. Contested matters are billed similar to our residential cases, typically flat fee billing, $350.00 for a court appearance or a bench trial, etc. Discovery, depositions, oppositions to motions, and jury trials are generally billed hourly.
What counties or courts does the Duringer Law Group handle?
We routinely handle eviction actions in Orange, Los Angeles, Riverside, San Bernardino, San Diego, and Ventura counties. Our attorneys, attorney services and process servers are in most every court in these counties every day. In addition to these Southern California courts, we also represent clients throughout California by relying on our network of experienced attorney services and registered process servers.
Repair & Deduct
One of my residents is taking advantage of me. Lately, he’s been deducting a portion of his rent because he claims to have fixed things in the apartment, and he thinks I should reimburse him for his efforts. I just saw his most recent rent check and it’s $118 short. Seems like he had to replace all of the faucet washers because one was apparently leaking and he doesn’t want to waste water. Not only did he charge me for the three washers, but he thinks he’s worth $85.00 an hour for his time. Had he told me, or my handyman, the problem could have been easily corrected in about twenty minutes. This is the third time he’s done it this year, can he do this?
No. Your tenant is abusing a remedy that is provided to residential tenants in California. Under certain extreme circumstances, a tenant may make repairs and deduct those out of pocket expenses from his rent. The defect must be a serious dilapidation that renders the rental unit uninhabitable, and the tenant must provide the landlord notice of the dilapidation and a reasonable opportunity for the landlord to fix the problem. Generally, 30 days is deemed a reasonable time, but some defects, such as a defective heater in winter, will require the landlord to respond quicker. If the defect is serious and the landlord fails to correct it, the tenant may then “repair and deduct” the cost of repairs from the next rental installment. This remedy may only be invoked twice in any 12-month period and may not exceed the monthly rent. Your tenant would not be entitled to deduct his costs for replacing the faucet washers under the repair and deduct theory because the defect isn’t a serious dilapidation and he failed to give you prior notice. As such, the resident is in default and you could serve him with a three-day notice to pay rent or move out for the amount improperly deducted.
I’ve been on the receiving end of several small claims actions recently claiming that I withheld more of the security deposit than I was rightfully entitled. After going to trial on a couple, it seems like there isn’t really one correct way to do it. It seems like each judge that heard my cases had a different opinion as to how much I could rightfully deduct for certain items. Can you give me some guidance that will keep me ‘out of court?’
Disposition of security deposits upon move out is one of the most litigated issues in civil court. It is important that you understand what may rightfully be deducted from the deposit and what may not. Civil Code Section 1950.5 provides that a landlord may deduct unpaid rent, cleaning, and necessary repair charges in excess of “ordinary wear and tear.” But the code does not adequately define “ordinary wear and tear,” which is the reason for the differing opinions from different judges. There are certain guidelines that most courts follow. Most courts agree that paint should last three years, and carpet should last seven. Any damage that is tenant caused and shortens these expected life spans would be chargeable to the tenant. Scratches, holes, or unauthorized painting of the walls would also be recoverable. Ordinary wear and tear following a one-year tenancy would normally include a couple of picture nail holes in primary walls, vacuum scrapes along certain baseboards, minor dust build up in out of the way areas, and minor traffic wear in the carpet. These would generally not be allowable as deductions. But ordinary wear and tear would not include repair or removal of numerous lag or anchor bolts, grease spots or stains in the carpets, or scratches or holes in the walls. An accurate move-in and move out checklist plus pictures will definitely improve your chances of prevailing in court. If you are claiming carpet replacement, cut out and save a sample of the damaged carpet as evidence at trial. Remember, if you are deducting more than $125 for damage and cleaning, you must include copies of your receipts and each receipt must state the name, address, and telephone number of the vendor who provided the service.
Roommates & Subletting
Many of my rental units are in central Los Angeles near the campus. Of course, most of my current residents are full or part-time students. The units are large and are typically shared by four or five roommates. I’ve been reading your articles and am familiar with fair housing rules and proper tenant screening procedures, but I have been faced with a dilemma and I’m not quite sure the best way to handle it. Often, one of the roommates goes out of town for an extended period, or just plain moves out and takes the liberty of replacing himself with another. I usually don’t even know it happens until I happen to be at the building fixing something or collecting rents. My buddies say it’s best to just ‘look the other way’ and not acknowledge the new ‘tenant,’ and to be happy to get the rent on time from whoever is willing to pay it. I’m not sure that is the best way to handle the situation. Any advice?
It’s crucial to successful ownership and management of rental units that you adhere to proper management practices. One of the most elementary practices is good screening coupled with proper documentation prior to and during the tenancy. Ensuring that you have a completed application, a written rental agreement signed by all authorized adult occupants, and a set of written rules and regulations regarding conduct in and around the apartment, is an absolute must. The forms that you use should be industry standard; the best are from your local apartment association. Ensure that the rental agreements contain the standard provision that the resident cannot sublet or assign the unit without your prior written consent. Make sure that the rental agreement lists the authorized occupants by name, and do not just give blanket permission for ‘five occupants.’ If your rental agreement only lists one or two adults but goes on to authorize a maximum of five persons, you have arguably given consent to the primary occupants to have a total of five occupants, without restriction as to who they are. Qualify each authorized person, name him or her on the agreement, have him or her sign it, and do not allow any substitution without your knowledge and written consent. Train your residents to get permission to change roommates by strictly enforcing the terms of your rental agreement. If the resident requests permission, evaluate the prospect by getting a fully executed application. If the substitute qualifies, and you agree to the substitution, prepare a written modification to the existing rental agreement, replacing the original tenant with the new resident’s name. The modification should clearly state that the original resident is vacating and is no longer entitled to possession, and he or she is surrendering his claim to any security deposit and transferring his interest to the substitute resident. Ensure that all of the original signatories to the rental agreement and the new resident sign the modification. Of course, don’t even think about doing this if the residents are in breach of the agreement, either owing rent, not maintaining the unit, or some other issue. If you see a new face on the premises and learn of the substitution after the fact, you may serve a three-day notice to perform or quit, requiring the unauthorized person to vacate the premises. If the unauthorized occupant is still there on day four, immediately file the unlawful detainer. An uncured material breach by the residents will result in all of the occupants being evicted from the premises. Active and knowledgeable management is critical, especially in rent or eviction controlled areas, an eviction for a material breach is a powerful tool, and results in a rental unit that will re-rent at market after the eviction.
Tenant Screening Issues
Any new laws relating to credit screening that owners should know about?
Yes. The Fair and Accurate Credit Transactions Act —the FACT Act of 2003 — was expanded to require creditors — read landlords — to comply with certain red flag rules. Landlords who use credit reports in the screening process must develop reasonable procedures in the event a discrepancy between the address on a prospect’s application and the address of record in the credit report is discovered. The purpose is to minimize identity theft. A reasonable procedure may simply be a policy of verifying the prospect’s identity with secondary means, verifying the address with a third party, or contacting the applicant for further verification. The law does not require that your policy be in writing, but as true with all policies, written is best.
A prospective resident recently applied for one of my rentals. He seems nice and all, but when he filled out the application, he left a blank where his social security number should go; he said he didn’t have one. He had a California driver’s license and something called a Matricular Consular card. He seemed a bit combative when we discussed this issue, said that his attorney said I had to rent to him — that I couldn’t discriminate against him as long as he could afford the rent. Must I rent to him? How do I verify any of his information?
Proper tenant screening results from the proper use of a variety of tools. Credit reports and eviction reports are two of the best tools available to predict the ability of the prospective tenant to perform his obligations. Qualification of a resident goes far beyond ensuring that “he makes enough money” to pay the rent. Verification of past rental history, tenant stability, and verification of his ability to honor his credit obligations, as well as determining the likelihood of his continued employment are all fair game in evaluating a prospect. Like it or not, our country’s system of storing information on each of its citizens uses one’s social security or taxpayer identification number as the primary identifier. A Matricular Consular card is merely an identification card issued by a foreign country and is not valid for identification in the United States. In order to work in the United States legally, one must have a social security or a taxpayer identification number. It is illegal for an employer to hire an individual without a valid social security or taxpayer identification number. Identity theft is rampant in California, and it is incumbent upon all credit providers, including landlords, to ensure that the person that fills out the credit application truly is who he says he is. Many tenant’s rights advocates — and that is exactly what they are — advocate advancing the rights of tenants at the expense of landlords and insist that it is discriminatory to require a social security number when evaluating a prospect. You, as a housing provider, have a legitimate business purpose in determining the creditworthiness of a proposed resident, and not only to predict his ability to timely meet his rental obligations, but you must determine his ability to continue to meet those in the future. Furthermore, in the event you had to pursue this individual in the future due to a breach of the agreement, you must assess the risk in searching for and locating this individual should you need to collect a past due amount.
I’ve been going through several applications I received for one of my vacancies. I don’t seem to be receiving as many applications as I have in years past — a sign of the times I guess. This one guy looks good, but he works from home selling items on eBay. His credit is acceptable — not stellar but not bad either. I guess he used to be in middle management, got laid off a few years ago, and now he just sells stuff from home. Well, if he really makes what he claims to be making, he’ll qualify. The trouble is I’m not sure how to verify. He’s offered his tax returns, but I know those may not be very reliable. How do I verify his income?
The best way to verify self-employment income is to actually see his original bank statements. Ask him to provide original and complete bank statements for all of his accounts for at least six months, preferably longer. Verify that the deposits to the account are regular, and are sufficient to pay his expenses. Look for a high average balance and sufficient reserves in savings. Also, verify that his future income will not be interrupted. Request his ‘business’ information regarding his eBay seller account and verify that he truly is in ‘business’ selling stuff regularly on eBay. The next several years will find many of our residents engaged in alternate forms of employment, and non-traditional sources of income will be more common. Be flexible, and use common sense in evaluating a prospect’s financial capabilities.
I’m getting conflicting advice about whether or not I must rent to someone that does not have a valid social security number or an official picture ID. Seems like all the Fair Housing guys say I ‘can not discriminate’ and that I must rent to all, regardless of whether or not the prospect can prove who he is, or verify his tenancy history, or his ability to pay the rent. I have been following that advice for years, and now have a building full of undocumented people that I could never find in a million years if I ever had to collect from them. I want to take my building back and only rent to persons that qualify. People that have verifiable identities and credit and are good credit risks. What are my rights?
Our industry has passively allowed this erosion to occur over many years. Many landlords have looked the other way, in favor of the quick rental, the cash payments, the full building, the reduced confrontation; we’ve taken the easy way out. Landlords have been wary of lawsuits claiming discrimination, and have believed the bullying taunts and threats from the tenant and immigrant rights activists. We have just taken the easier and less confrontational course of allowing it to happen. We blame our government for not addressing the illegal immigration issue; one side of the aisle wants cheap labor; while the other side wants cheap votes. We blame employers for hiring and our ‘welfare state’ for creating the magnet that keeps drawing. Landlords are part of the problem as well. By succumbing to the short-term temptation of the quick rental to the unverified and the undocumented, we are contributing to the problem. Many landlords are realizing that rather than just complaining, they can be a part of the solution. Landlords have absolutely no obligation whatsoever to rent to an individual who is unable to independently verify his identity, his past tenant history, and his ability to comply with the terms of the rental agreement, including his financial ability to pay the rent. Our system of society is built around a numeric social security or tax identification number. Our life history, good and bad, is reported more often than not, into a database that is organized by, and sorted by the social security or a tax identification number. Names are common, but socials security numbers are unique. No two people should share the same number. Credit, as well as criminal convictions, are reported similarly. These very basic requirements should be applied uniformly to all applicants, regardless of race, national origin, or ethnicity. It is just good business sense. With average rents over $1200 a month, landlord investment of $150,000 or more per rental unit, and a litigation climate that is out of control, landlords must know who their residents are, must reduce their risk of financial loss, and must know how to recover from a breaching resident.
Alterations Without Consent
I can’t take it anymore. Every time I visit my building, there is another satellite dish bolted to my facia or attached to the roof. It’s not just the satellite dish folks; I’m having the same problem with the cable guys. They spread cable all over my brand new roof; leave nails and screws scattered all around, and certainly are causing premature wear to the roof by all of their activities up there. And of course, all without my permission. No one should be on my roof! What do I do?
The problem you describe is one that owners have been facing for years. Often it is the tenants who are the cause of the improper installation, but recently we’ve noticed the problems are more often caused by the actual dish or cable provider, by one of their subcontractors or employees. The transgressions are many; certainly, the installation by attaching the dish to your building facia or structure and the stringing of cable on your roof is neither permitted by the rental agreement, nor by law. More importantly, the entry upon your roof without your permission is an illegal trespass. The damage caused to your roof by directly attaching the dish to facia, or by the scattered nails and other debris working their way into the roofing material causing the roof membrane to leak, are certainly unacceptable and are actionable. Don’t be surprised when your roofing contractor seeks to void his warranty due to your failure to prevent persons from abusing the roof, the lack of maintenance by allowing nails, screws, and debris to remain on the roof, and the intentional penetrations of the roof membrane by the installers. Enforcing the terms of the agreement against the tenant is, of course, the obvious choice, but not necessarily the best. The fix has become a bit more complicated given the current climate of increasing vacancy and declining rents. In strong rental markets, a notice of default could be served on the tenant requiring the tenant to correct the problem, and if he failed to do so, evict him. Once evicted, the replacement tenant then moves in, calls the dish or cable guys, and the exact same problem happens again, deja vu. Problem solved? No. In the current rental market, owners want to solve the problem, keep it from re-occurring, and yet maintain the tenancy if at all possible. The best solution in today’s market, assuming the installation was not done by the resident, is to put the resident on notice of the breach, and with the tenant’s co-operation, demand that the dish or cable installer correct the problem and repair any damage done to the roof. A written demand should be served upon the dish or cable provider, as well as the installer, that you intend to pursue them civilly and will seek damages for their trespass on to your property, the roof, for recovery of the damages you have suffered and will suffer due to the damage to the roof and facia, and for further damages due to their ‘unfair business practices’ of engaging in illegal activity, trespassing, and causing damage to property. Provide them a reasonable amount of time, 10-days, to contact you to make arrangements to remove the offending equipment and to repair any damage done to your roof. Upon receipt of your letter, or your attorney’s letter, the provider will certainly prefer to correct the situation and will certainly not repeat the transgression on your property.
Rental Drop Box
I’ve been thinking of installing a drop box somewhere on my property so that the residents can put their rent checks in it. I’m thinking I’ll save them a stamp and get the rents sooner. Any problem with doing this?
Many landlords do exactly that, most with absolutely no problems whatsoever. If you are considering the practice, it is very important to install a secure box that cannot be removed or broken into, and provide your residents with written procedures regarding the use of the drop box. Specifically, inform the residents that use of the box is optional; that they may use it for their convenience, but that there always is a risk of loss or theft. Rent will not be considered paid until you actually receive their check. And of course, never deposit cash. Also provide the residents with a physical address where they can personally deliver the rent, not a PO Box if they prefer not to deposit the rent into the drop box. By not requiring the use of the drop box, the resident will bear the risk of loss, until you actually receive the rent. If you mandate the use of a drop box and fail to provide a physical address for payment or require payment to be made to a PO Box, courts will find that the risk of loss transfers to you upon their placement in the drop box or in the mail.
Most of my rental units are large and many have an enclosed yard. I think that tenants with dogs tend to stay longer because not many buildings accept pets, so I allow my tenants to have pets. I recently received a letter from a resident complaining that another resident’s dog growled and seemed to lunge at her poodle. Now, I like dogs — not necessarily poodles (nervous little creatures) — I think that the poodle probably started it, but I don’t know for sure. Anyway, no harm was done —no bites, no blood — should I be concerned?
Yes. Although you are not the owner of the dog and would not directly be responsible for any injuries that may result from a vicious dog attack, you may be held responsible based upon the theory that you, as a landowner, allowed a dangerous condition, the vicious dog, to remain on your premises. Once you are on notice of any dangerous propensity, either a bite or even an aggressive growl, you must take action to eliminate the threat of injury. Many juries will extend liability beyond the dog’s owner to the landlord if the landlord knew or should have known of the dog’s dangerous propensities, yet took no action to eliminate the danger.
Abandoned Animal In Rental Unit
I remember in the past whenever a resident would leave a pet behind in the unit after they moved out, the local animal control would always refuse to take it. Is that still true now?
Just got a hysterical call from one of my residents. She recently moved in with her boyfriend. They are just three-weeks into their one-year lease. She said her boyfriend hit her, and she was in the process of moving out. Not sure what to do — don’t really even know who started the fight — she seems more violent than he does. I can’t make her stay, but she was the one with the job, and he’s a bit of a deadbeat. I haven’t seen anything in writing. How do I handle the situation?
A relatively new law was enacted to protect victims of domestic violence. Although great in theory, the law will certainly be abused. The law allows a victim of domestic violence to break a lease and relieve themselves of liability, provided they comply with certain requirements. The law allows a victim to serve a written 30-day notice to vacate, even during a lease, provided they attach a copy of a temporary restraining order or a copy of a police report stating that the alleged victim has filed a report of domestic violence. Then, if the resident vacates within the 30-day period, the victim will have no further liability for the remaining term of the lease. In your situation, since you have received no written notice to vacate, and no TRO or police report, then the resident will not be relieved from liability. If you have evidence of the domestic violence, then you may wish to proceed and evict the remaining occupant following service of a three-day notice to quit based upon nuisance. If you have no credible evidence, then the remaining occupant will stay, provided he fully complies with all of the terms of the agreement.
I’ve always loved to barbeque, but I’ve always been concerned about the fire danger in an apartment community. I’ve thought about restricting the use, but I’m not sure if my tenants would be upset. What are most owners doing?
Open flame cooking devices and barbeques are strictly regulated in California. In buildings where there are three or more units, the barbeque must be at least 10-feet from any flammable surface or structure, or else the balcony or patio must have sprinklers. Further, the only acceptable fuel is propane, in small one-pound maximum canisters only — no briquettes. Most landlords prohibit the use or storage of a barbeque in the unit or on patios or balconies. Many landlords are installing community barbeques in appropriate common areas for their residents’ use.
Landlord Liability for Damage to Resident’s Personal Property
I recently purchased a small building in a very densely populated area. The property has underground parking for about 12 cars below the complex. After the rains last month, a leak occurred in the ceiling of the parking structure. The water collected in one of the drains, got pretty dirty and rusty, then leaked down onto a resident’s car. As it turns out, one of the car’s windows was left open and the water leaked onto several of the tenant’s personal belongings. Needless to say, the tenant threw a tantrum in the management office the next day. I apologized and offered to have her car washed and detailed. She accepted. I just received the tenant’s rent for this month and it’s $650 short. The tenant included a letter stating that she had deducted the cost of the damage to her personal belongings. Can the tenant do this?
No. A resident’s claim for reimbursement of damage to her personal property is independent of her obligation to pay rent. The tenant may not deduct these items from her rental obligation. You should serve a Three-Day Notice to Pay Rent or Quit for the $650.00 difference. Landlords are generally not liable for damage to a resident’s personal property, absent a showing that the landlord either intentionally or negligently caused the damage to occur.
Landlord’s Right to Enter Rental Unit
My building has been on the market for a while, waiting for a buyer. I received an offer and we opened escrow a couple of weeks ago. The buyer is doing his due diligence and is going through the books and records. A couple of issues arose. First, the buyer’s inspection company is doing inspections of the units. My manager served written notices to all and provided well over the required 24-hour notice of the upcoming inspection; most got at least three days prior notice. Well, one of my residents, a long-termer, just sent me a letter warning me that if anyone enters “his” apartment he will sue everyone. He says he used to go to law school, that he knows his rights, and says I can’t go in. Needless to say, this was unexpected. I have the inspectors, appraisers, and the buyer scheduled to visit at the same time. The buyer is very hands-on and says he must personally inspect each unit. If he doesn’t let me in, it may jeopardize the sale. What do I do?
Your resident should have spent more time in school; he’s a bit confused. California law provides that residents must allow access to, and entry for, appraisers and prospective purchasers, among others, upon service of at least 24-hour notice. His failure to allow access violates California law and is a breach of your rental agreement. Your resident may need a little “prompting.” Prepare a Three-Day Notice to Perform Condition or Covenant directing him to comply with California law and the terms of your agreement by allowing access to the apartment at the already noticed date and time. Additionally, provided his tenancy is a periodic tenancy, and your property is not subject to rent control, a notice of termination of tenancy can be a great motivator. Prepare a Notice of Termination, and instruct your manager to serve it at the same time as the Notice to Perform or Quit. Let the resident know that provided he allows access as scheduled, you will rescind the notice of termination. But if he doesn’t, he should start packing. Given the alternatives, compliance almost always occurs. In the unlikely event he continues in his refusal, you have several options. Typically escrow instructions will preclude you needing to evict a tenant without the buyer’s consent once escrow is opened. Check your escrow instructions to see if this applies. Most buyers would have no problem and will consent to his removal. The buyer and lender can be appeased by agreeing to a hold-back in escrow of sufficient money to make any needed repairs to the unit and/or to cover eviction costs. Escrow instructions can be amended to allow for reimbursement for repairs and costs, or a return of the retained money to you.
I am a very conscientious landlord. I want to ensure that my rentals are well maintained and that any maintenance issues are addressed immediately. Every year, I send a notice to my residents informing them that I will inspect each unit. I have been doing this for years without any problems. This month I received a letter from one of my tenants telling me that I had no right to enter his apartment to look around — that he would not let me in. What do I do? Can I force my way in to do the inspection?
Your policy of doing annual inspections is admirable and is practiced by responsible landlords throughout California. Most tenants welcome a responsible landlord’s actions in ensuring that all is well and voluntarily cooperate in providing access upon the landlord’s reasonable request. It is clearly in the best interest of all to ensure that any maintenance issues are promptly addressed and that a spirit of communication and co-operation exists between a landlord and his residents. The trouble is, your resident is right. There is no specific provision in California law requiring a resident to allow the landlord access to merely “inspect” the premises. California law states that a landlord can enter a rental unit only for certain reasons. Those reasons are in an emergency, when the tenant has moved out or abandoned the premises, to make necessary or agreed repairs, decorations, alterations, or other improvements, to show the unit to prospective purchasers, tenants, or lenders, to provide entry to contractors or worker who are to perform work on the unit, or to conduct a pre-move out inspection at the end of the tenancy, pursuant to court order, or to inspect the smoke detector or inspect the installation of a waterbed. Conspicuously absent from this body of law is the unfettered right of a landlord to just inspect for the pure sake of just making sure everything is all right. You cannot force your tenant to allow access for the purpose of inspection.
I am currently in the middle of an eviction for a non-paying residential tenant. Usual thing: the tenant didn’t pay rent, I served a three-day to pay or quit — he didn’t. I filed an eviction, he answered; the trial is set for next week. Now he tells me that he filed bankruptcy over a month ago, before I filed the eviction, and that I have to start all over. Do I?
Not necessarily. Your state court eviction will be stayed (temporarily halted) until you get permission to proceed from the Federal Bankruptcy court. If you were not aware of the Bankruptcy filing when you served the three-day notice, and your eviction was filed in good faith, then you may petition the Bankruptcy court to annul the automatic stay, or in the alternative to grant relief from the automatic stay retroactive to the date of filing of the Bankruptcy. Most federal Bankruptcy judges will grant this relief if properly requested, allowing you to step right back into where you left off in your state court action.
General Landlord-Tenant Questions
Seems like my residents just keep paying their rent later and later each month. I usually try and work with them; I don’t even begin to nag them until about the tenth of the month. I’ll start with a phone call, and then when they don’t call back, I send them a reminder note. Often the rents don’t come in until after I serve a notice to pay or quit, usually after the twentieth of the month. My lender doesn’t seem to care; they still want their payment of the first. How can I change this pattern?
Your residents pay their rent late because you have trained them to pay that way. Your rent collection techniques are lax, and your residents are all too aware of your procedures. Many residents live paycheck to paycheck and will wait until the last possible moment to pay their obligations. Your residents apparently know that you “try and work with them” and that you don’t even start looking for the rent until the tenth. Your phone calls and reminder notes are nice but not legally sufficient to ensure timely payment. Your residents know the drill: phone call, letter, and then the notice. They pay when they absolutely have to in order to avoid being evicted. A tighter rent collection policy, coupled with a good rental agreement, will eliminate your problem of late payments. Consider using a rental agreement which includes a properly drafted late charge provision. It is important to note that not all late charge provisions are enforceable. The language used in the agreement must characterize late charges as “liquidated damages.” That is, it must state that the damages sustained by the landlord are difficult or impossible to ascertain and that the parties agree that a certain sum, the late fee, is the amount of compensation due the landlord. Your rental agreement will define when the late fee is incurred. Typically, the late fee is incurred if rent is not paid by the third of the month. Remember, this clause does not provide a “grace period” to the resident; it merely defines when the late charge is incurred. Late charges must not be punitive, but must reasonably relate to the costs incurred by late payments. Don’t charge a variable fee, one that increases by a certain amount each day the rent is late. Although the law is silent on the subject, courts generally allow late charges of 6% of the rental installment. Additionally, consider adding a clause in your rental agreement requiring the resident to pay a “notice service fee” in the event the landlord consults an attorney and serves a notice of default. Again, the fee must be reasonable rather than punitive. If your primary goal is to just get the rent paid timely, you should send all of the residents a notice reminding them of their obligation to pay their rent on the first of the month, and they should budget accordingly. Let them know that you intend to strictly enforce the terms of the rental agreement. If you have allowed the late payments over a long period of time, provide the residents at least thirty days warning of your intentions. Late rent payments in a rent-controlled unit are opportunities for vacancy decontrol. Rent controlled jurisdictions require aggressive rent collection techniques and strict enforcement of the terms of the rental agreement. If the rent is due on the first and the first falls on a weekday, a three-day notice should be served immediately on the second of the month. Failure to pay the rent in full by the expiration of the notice will support an eviction. Remember, you set the tone for your buildings. If you allow your residents to ignore the terms of your rental agreements you can be assured that they will do just that.
Seems lately my tenants pay their rent with whatever they can — cash, personal checks, money orders, etc. Sometimes they endorse their payroll checks over to me. I have allowed this over the years to help my tenants out, and quite frankly, I get my rent earlier that way. But when they don’t pay on time, or if a check bounces, I demand certified funds only on my three-day notices to pay rent or quit. Am I doing anything wrong?
It is generally not a good business practice to accept cash or third-party checks as payment of rent. With cash, you run the risk of theft or robbery. With third-party checks, you run the risk of creating contractual rights or tenancy rights between you and the maker of the check. Also, be aware that under certain conditions the third-party maker can stop payment on that check and your account will be charged up to two years after the check is cashed. Additionally, unless your rental agreement has a specific provision requiring the tenant to pay by certified funds only when curing a three-day notice, then your refusal to accept a personal check during the notice period would provide a defense to the tenant in an unlawful detainer action.
I just closed escrow on a small building and I’m trying to figure out who’s who. I received the rental agreements, but the tenant information seems incomplete. The applications, the few that I’ve found so far, are old and outdated. I can’t seem to find any telephone numbers for the residents, and I’m not really sure that the names on the agreements are the same people who actually live in the units. I’ve read your articles before and I know the importance of reviewing the files and doing thorough due diligence before closing escrow, but this deal just happened too fast. Now that I’ve closed escrow, what can I do to clean up the records?
First things first — figure out what you know and what you don’t. Establish individual tenancy files, one per unit. Based on the limited information you have: write down the names and ages of the occupants, the terms of the rental agreement, written or oral, lease or month to month, rental rate, deposit on file, and date paid through. Compile whatever contact information you have: home phone number, work, and cell number. Design a “tenant emergency information sheet” that includes spaces for the following: names of all occupants, home and cell phone numbers for each occupant, work phone numbers, email addresses, and detailed vehicle information. Visit the building about dinnertime — most residents will be home — and go door to door and meet briefly with the occupants of each apartment. Spend a few minutes confirming the information in your files and gathering any missing information. Ask the residents to complete the “tenant emergency information sheet” while you are there in case of emergency. You will find that the vast majority of your residents will cooperate fully and provide the requested information. Residents are generally eager to please, and since the relationship is still new, there should be no animosity or distrust. This is also a good opportunity to find out the condition of each unit. Simply ask the residents if there are any issues that need addressing — better to find out now and have an opportunity to address the needed issues than to allow conditions to worsen and your relationship with the residents to worsen as well. This is also an opportune time to prepare new month-to-month rental agreements for signatures. You don’t know the players yet, so you certainly don’t want to do fixed term leases. The few residents who are less than cooperative will be quickly identified as your “problem residents” and can be handled individually. Names and contact information of the uncooperative ones can generally be gathered from the other residents or from public records. If the property is non-rent control, and a month to month tenancy, the rental rate and term can be set with either a 30 or a 60-day notice of change of terms, depending on the extent of the change.
What do you think about the practice of allowing a tenant to directly deposit his rent check into my checking account? Seems simpler than requiring him to mail it to me, then my having to go and deposit it into my bank. I know a few owners that do this and it seems to work out well. Any problem with this?
Seems logical. Save a stamp for the tenant, save a trip to the bank for you. This practice has worked just fine for some landlords that have tried it but has resulted in disaster for many. In a perfect world, your perfect tenant will deposit the entire rental amount promptly on the first of each month, each and every month without fail. For all of those landlords whose crystal ball tells them that this is the tenant that will never fail, never have a problem, then those landlords may consider this practice. For the rest of us in this imperfect world, there are unlimited ways that this practice can go wrong. Consider when your tenant doesn’t pay the rent when due. You serve a three-day notice for the monthly rent — say $1200.00. On the third day, not having all of the rent, your tenant deposits $50.00 to your bank account. You just took a partial payment, thereby voiding your three-day notice. Back to square one. What if the deposit of $50.00 is the day before your unlawful detainer trial? The same result occurs. You accepted a partial payment, voiding your notice and defeating your court action. For these and many other reasons, this is not a good management practice. Sure you could close the account when you serve your notices, or you could state on your notice that no partial payments will be accepted, and the tenant is not authorized to deposit any funds after expiration of the notice, but you would have to strictly enforce this procedure and not waiver from consistent application of the policy. If you are going to allow direct payments to a bank account, then open a separate and distinct account — separate from your general accounts — and prepare specific written instructions regarding the procedure. Specifically, state that no partial payments are authorized and that no payments may be made following issuance of a three-day notice or other termination notice without your specific written agreement. Further, you only want ‘good funds’ deposited into your account: no third-party checks or checks payable to your tenant drawn on another’s account.
Some of my leases are coming up for renewal in the next few months. One of these leases is for a resident who has been a thorn in my side since the day he moved in. If I don’t want to renew him, do I need to provide him a reason? Also, do I need to serve any particular type of notice?
Provided your property is not located in a rent or eviction controlled area, then you do not have to provide a ‘reason’ for non-renewal. Provided your desire is not based upon illegal discrimination and is not in retaliation for the resident exercising a protected right, then you are free to ‘not renew’ the lease. Generally, a fixed term lease expires on a certain day. Provided there is no language in the lease that “automatically” converts the lease to a month-to-month tenancy, then the resident is required to vacate on or before the lease expiration date. Neither the tenant nor the landlord is required to serve any prior notice. However, most industry lease agreements used by landlords include an automatic conversion provision that states that the tenancy automatically converts to a month to month tenancy unless a written notice of termination was served by either the landlord or the tenant. In this event, a written notice of termination would have to be served to terminate the resident’s tenancy.
I just took over management of a small apartment building in a non-rent controlled area. All of the residents have lived here for many years, and it appears that none of the residents have more than $200 as a security deposit on file. I always require at least one-month deposit on all of my rentals, no exceptions. Should I serve notices requiring the tenants to pay additional deposits?
Fair Housing Issues
One of my elderly residents recently fell and broke her hip, and it looks like she won’t be getting around very well ever again. She has been living in our building for many years and I would hate to see her move; everyone loves her. Her daughter asked if I would install grab bars in the shower and in the bathroom and kind of implied that I must do it at my expense because of the ADA requirements, whatever they are. Now this resident is very sweet, but I just cannot afford to spend the money, my husband and I are barely making it as it is. Do I have to allow my resident to install the grab bars and do I have to pay for the cost?
A landlord must allow a disabled tenant to make reasonable modifications to the rental unit to the extent necessary to allow the tenant full enjoyment of the premises. The tenant, not the landlord, must pay for the modifications. As a condition of making the modifications, you may require the tenant to enter into an agreement to restore the premises to their original condition upon termination of the tenancy. You cannot require an additional security deposit in this situation, but you can require the tenant to pay a reasonable estimate of the restoration cost into an escrow account in order to ensure that the premises will be returned to their original condition at the termination of the tenancy.