Odor, Inspection and Eviction

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Q: I am the manager of a ten-unit building. Recently, some of the residents have been complaining about a foul and mysterious odor coming out of one of the units. No one has seen or heard from the tenant in weeks. Other residents told me that there’s a cat on the premises, but I don’t see any way for it to be able to get out. Finally, the resident below the unit has noticed some water stains in their ceiling. I’m afraid there may be a leak in the bathroom above. Can I take a look inside the apartment to make sure everything is all right?

A:
Yes. Civil Code Section 1954 allows an owner or their agent to enter a dwelling unit upon reasonable notice or immediately in case of an emergency. Specifically, in cases where you possess a “reasonable belief” that an emergency exists, you may enter the dwelling unit without notice to the tenant. A water leak is such an emergency that, if left unchecked for 24 hours, would cause substantial damage to the building. In the absence of an emergency, you must post a Notice to Enter Dwelling Unit (24 hours is deemed reasonable notice), but circumstances may allow for shorter notice. Based upon the circumstances you describe, a call to the local police authorities requesting that they accompany you may be wise.

Q: My building has been on the market for a while, waiting for a buyer. I received an offer and 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 and that he knows his rights, and he says I can’t go in. Needless to say, this was unexpected. I have the inspectors and 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 this tenant doesn’t let me in, it may jeopardize the sale! What do I do?

A:
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 hours’ 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 on 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 your evicting 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.

Q: 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; 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?

A:
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.

 

This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714.279.1100, toll free at 800.829.6994 or 877.387.4643. Please visit www.DuringerLaw.com for more information and to sign up for our periodic newsletter.

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