Bed Bugs, EFT, Gyms

Print
PDF

Q. I understand that there is a new requirement that Housing Providers must follow certain procedures and provide a notice to our residents regarding bed bugs. Also, are we required to include new language in all of our leases as well? What do I need to do to comply?

A.
Bed bugs are very much in the news today. There has been a huge increase in their presence and a dramatic increase in litigation filed by tenants who have experienced bed bugs first hand. Because of this, the California legislature has responded with the following new statutory requirements:

Civil Code §1954.602 prohibits a landlord from showing, renting or leasing a unit that the landlord knows has bed bugs. It does not require a landlord to inspect for bed bugs, but if a bed bug infestation is apparent, the landlord is considered to have knowledge of bed bugs in the unit. To protect themselves from future bed bug lawsuits, landlords should have infested vacant units treated and have an approved pest control company issue a bed bug clearance and maintain it on file for all such units.

Civil Code §1954.603 requires that a specific bed bug notice be given to new tenants on and after July 1, 2017 (with specific language listed under “Information about Bed Bug Laws” in at least 10 point font) and to existing tenants by January 1, 2018. Landlords must notify tenants about the procedure for reporting suspected infestations to the landlord. The following is the required language:

“Information about Bed Bug Appearance: Bed bugs have six legs. Adult bed bugs have flat bodies about ¼ of an inch in length. Their color can vary from red and brown to copper colored. Young bed bugs are very small. Their bodies are about 1/16 of an inch in length. They have almost no color. When a bed bug feeds, its body swells, may lengthen, and becomes bright red, sometimes making it appear to be a different insect. Bed bugs do not fly. They can either crawl or be carried from place to place on objects, people, or animals. Bed bugs can be hard to find and identify because they are tiny and try to stay hidden. Life Cycle and Reproduction: An average bed bug lives for about 10 months. Female bed bugs lay one to five eggs per day. Bed bugs grow to full adulthood in about 21 days. Bed bugs can survive for months without feeding. Bed bug bites: Because bed bugs usually feed at night, most people are bitten in their sleep and do not realize they were bitten. A person’s reaction to insect bites is an immune response and so varies from person to person. Sometimes the red welts caused by the bites will not be noticed until many days after a person was bitten, if at all.

Common signs and symptoms of a possible bed bug infestation:

  • Small red to reddish brown fecal spots on mattresses, box springs, bed frames, linens, upholstery, or walls.
  • Molted bed bug skins, white, sticky eggs, or empty eggshells.
  • Very heavily infested areas may have a characteristically sweet odor.
  • Red, itchy bite marks, especially on the legs, arms, and other body parts exposed while sleeping.

However, some people do not show bed bug lesions on their bodies even though bed bugs may have fed on them.

For more information, see the Internet Websites of the United States Environmental Protection Agency and the National Pest Management Association.” Civil Code §1954.604 requires landlords to conduct follow up treatment not only of infected units, but all surroundings until bed bugs are eliminated.

Civil Code §1954.605 bed bug laws require landlords to notify tenants within two business days of receiving the pest control operator’s findings after an inspection. When infestations are found in common areas, the landlord must provide the notice to all tenants. This means that if a landlord finds bed bugs in a common area, then all residents in the building must be notified of such a finding.

Q. I encourage my tenants to pay rent by electronic funds transfer. I use the apartment association’s lease, which states “If Resident fails to pay the rent in full by the end of the 3rd day after it is due, Resident shall pay a late charge of $100.00 as additional rent...” One tenant seems to initiate the EFT later than the 1st day of the month, but I can’t be certain of what day it is, and if that day is a week-end or holiday, I see no sign of her pay ment in my bank until the following bank business day. That can mean I see the payment on the 5th or 6th day of the month. Is her rent late? When is rent legally considered paid? If my tenant gives me a check on the 3rd day of the month, and that day is a Saturday and I deposit it that day, I can see a pending transaction immediately, but the funds are not available to use until the next bank busi ness day. With a check, I know when the trans action is initiated and completed. With an EFT, I only know when the transaction is completed.

A.
When rent is paid by EFT, it is considered received by you when it is credited to your account. It is immaterial when the tenant initiated the transfer, the date which the funds actually are credited to your account is controlling. In the case of a check or draft delivered to you, it is the date which you actually receive the actual check or draft. You have control over the funds/payment instrument upon deposit of funds or receipt of the actual check. Of course the specific terms of your lease control. Most leases require that the resident “deliver” the rent to you on or before the first. This eliminates the old “check is in the mail” excuse. However, some “creative” landlords insist on writing their own “special” terms on their leases, and if those special terms require the tenant to “mail the check to a PO Box” or put it in a “drop box,” then these terms may alter the date of payment, and in some cases may shift the risk of loss in the mail to you the landlord rather than the resident. Additionally, if the account number provided for the resident to make his EFT to is incorrect and the delay is caused by the landlord’s incorrect instructions, then the resident will be provided additional time. For these and many other reasons, it is very important not to alter the language provided to you in your apartment association forms, they typically anticipate these types of situations.

Q. I have an apartment building with a small workout area, kind of like a mini gym. There are a few exercise machines, a treadmill and some exercise mats. I’ve been worried about somebody hurting themselves and then suing me, claiming I was somehow negligent in maintaining the exercise equipment. I’m thinking about just turning it into a storage room. Is there any way I can keep the exercise room, the tenants really enjoy it, but eliminate the risk of being sued for negligence?

A.
Until just a few years ago, the answer was no. Landlords, by statute, could not add exculpatory language to their leases prohibiting residents from suing them for negligence relating to the rental property. A couple of appellate court rulings just might effectively change that. The courts have ruled that the prohibition should only relate to the core rental unit, and does not necessarily extend to a non-core amenity, such as workout gyms, a recreation room or other entertainment amenity. A release and waiver of liability for injury suffered in the apartment itself, the garage or parking area, a walkway or corridor would be ineffective, however, a properly drafted release and waiver of claims for injury suffered in a gym, recreation room or entertainment facility, or other non-core amenity would be effective.


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. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 255,000 landlord tenant matters throughout California, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.

Contact AACSC

Apartment Association,

California Southern Cities
333 W. Broadway St., Suite 101
Long Beach, CA 90802
(562) 426-8341

This e-mail address is being protected from spambots. You need JavaScript enabled to view it