Legal Corner

Rent Due, Commercial Leases, Troubled Former Tenants

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Q: Is it true that even though my rental agreement says rent is due on the first, there are times when the due date actually slips a day or two?

A:
Yes, when the first of the month falls on a weekend or a holiday, the actual “due” date will slip to the next business day. Just last month, in September, the first fell on a Saturday. Since the first was a weekend and the following Monday was Labor Day, the rent due date rolled until the next business day, Tuesday, September 4. This means that rent that was normally due on the first, was actually “due” on Tuesday, September 4, and would be considered late on September 5. This is important to know because in the event you served a three-day notice to pay rent or quit demanding September rent prior to Wednesday, September 5, 2018, then the notice was defective, as it was served prior to the rent actually being “late.”

Q: I am about to enter into a five-year term lease for an industrial unit in Southern California. The unit has been vacant several months and I don’t want to lose this deal as it seems like good tenants are kind of few and far between lately. We’ve agreed on just about all of the deal points except a couple. At the last minute the tenant requested the lease be prepared with a subsidiary of his company rather than the parent company, saying it is for “tax reasons.” Additionally, he wants to make the use provision extremely broad rather than specific, allowing him to do just about anything in the premises without having to get my permission. He knows I need to lease the space, but I’m not sure I want to give in on these points. What are my options?

A:
Negotiating commercial leases involves a bit of horse trading. Often, terms that are very important to your tenant may not be so important to you, and vice versa. Knowing the pros and cons of each deal point allows you to knowingly accept or reject certain risks when considering certain requests.

Generally, parties meet somewhere in the middle of a request, allowing certain concessions, but protecting the interests of the Lessor. The tenant’s last-minute request to substitute a subsidiary in its stead is an attempt to shift the risk away from the financially stable parent company, and obligate a less financially qualified entity, often times a mere shell, with relatively few assets.

Screen the proposed replacement tenant as you would any proposed tenant to determine if it meets your rental criteria. Is it an existing concern or a new entity recently formed solely for the purpose of signing this lease? Is it an independent business concern generating its own revenue stream? With its own assets? Or merely a subsidiary of the parent with no independent means of sustainability. There are many options to offer that would allow the tenant to satisfy his “tax reason” while still protecting the Lessor’s interests. You may allow the replacement tenant, but require the parent company to guaranty the lease. The guaranty can range from an unconditional full-term guaranty to a limited guaranty based either on a certain period of time, or a certain maximum exposure. An increased security deposit adds protection as well. Options such as an irrevocable declining letter of credit issued by a reputable financial institution allow parties to salvage deals that might otherwise fail.

Use provisions are important for a number of reasons. It is important that the tenant’s use does not overburden the facility, or interfere with the neighbors. Certain unacceptable tenant uses may involve high levels of noise, or the use of corrosive or carcinogenic materials, or other toxic byproducts. As your facility is an industrial complex, parking is no doubt limited. It is important that the approved uses do not over-burden the limited available parking. Rather than approving a very broad undefined use, it is better to identify the allowed use, but allow the tenant to request approval for a change of use in the event its operations change in the future.

Q: I’ve been reviewing my tenancy files and realize that most of the information is outdated. The phone numbers, job info and vehicle information is all from when the tenants first moved in, some many years ago. I’m not even sure who lives in each unit, as many have changed roommates. What is the best way to correct this mess?

A:
Many landlords find themselves in exactly your situation. As you surely realize it is very important to actively manage your units and keep your records up to date. It is good business practice to update resident contact information at least once a year. Rather than just circulate a blank rental application and ask your residents to complete it, prepare a specific request for specific information that you’d like from your residents. The type of information you should have, and maintain current is a list of all occupants, email and telephone contact information for each, and both evening and day phone numbers for every occupant. Periodically make photocopies of your tenants rent checks to gather bank account information for your files in the event you ever need to collect from them. Note license plate numbers for vehicles and keep abreast of changes in employment throughout the tenancy, as best you can.

Q: I was recently called by another landlord requesting reference information on one of my past residents. This particular resident was a genuine pain in the rear, and the day she moved was one of the happiest days of my life. I also know that this particular ex-tenant is no stranger to the courthouse. She seems to have her own personal lawyer with way too much time on his hands, who likes to sue anyone and everyone she has a bad experience with. Now that she’s gone, I really don’t want to have anything to do with her ever again. I am afraid that if I say anything against the tenant, and the new landlord rejects her, then she might sue me. If I give her a glowing recommendation, and the new landlord relies upon my statements, what happens when he finds out the truth, that she really is the tenant from hell?

A:
A former landlord who is asked to provide a reference for an ex-tenant must be careful to provide accurate and truthful information. If a former landlord misleadingly gives a good recommendation about a problem tenant, the landlord may be liable to the new landlord who relies on the information and is damaged. It is the policy of many landlords to not respond to subjective inquiries; that is, questions such as “Was she a good tenant?” or “Would you rent to her again?” Many landlords enact policies to provide neither good nor bad references, and only confirm specific objective information such as rental rate, and dates of occupancy.


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.

A Selling Issue, Roommates, and more

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Q: Just when I thought I was doing everything right, I think maybe I’m not. Here’s the short version. I’ve had my building 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, etc. A couple of issues arose. First, the buyer is doing his inspections of the units and we gave all of the residents plenty of notice of when the buyer and his inspection people would visit each unit. My manager served written notices to all and provided well over the required 24-hour notice; most got at least three days’ prior notice. Well, Mr. Thinks-He-Knows-It-All in one of the apartments just sent me a letter warning me that if anyone enters “his” apartment, he will sue everyone. He says he use to go to law school, that he knows his rights, and says I can’t go in. Needless to say, this was unex pected. 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 he doesn’t let me in, it may jeopardize the sale, what do I do?

A:
Mr. Thinks-He-Knows-It-All is mistaken. 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 needs 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 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 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 effect 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 have a dilemma. I rent a townhouse to three roommates, two girls and a guy. They all signed a one-year lease just four months ago. I got a call the other night from one of the girls and she told me that the guy had moved out a week after they moved in after the three of them had some sort of disagreement. She said that he called her the other day and said he wanted to move back in this weekend. She spared me the details, but she sounded afraid of him. The neighbors told me some stories about the guy and it sounds like we’re all better off if he isn’t around. She asked if she could change the locks and not let him in. I’m not sure what to do, if he’s locked out, won’t he just come to me and ask for a key? What do I tell him?

A:
The one-year lease agreement provides each of the three occupants the right to occupy and use the premises for the entire term of the lease or until terminated. No one tenant has greater rights than any other. Any action, absent a court order, by one or both of the girls to deny the third roommate entry would be actionable. If the remaining two roommates are truly afraid of the third, they should immediately seek a restraining order barring him from coming near the townhouse. The restraining order, if done properly, will allow you to refuse to provide him with a key to the changed locks, and will keep him away from the premises. He will, however, still be contractually obligated to perform the obligations, but the restraining order will prevent him from living in or visiting the unit.

Q: I think I’m ready to join the ranks of landlords here in Southern California. I placed an offer on a 12-unit apartment building, the seller accepted it and I’m currently in escrow. I’m now about to conduct my due diligence. Is there anything special that I should be aware of when reviewing the property or the rent roll? What can I do to protect myself when a tenant claims that he had more security deposit than what gets transferred to me on close of escrow?

A:
When doing your due diligence, it is important to review all existing rental agreements and other contracts that affect the building. A practice that is becoming more and more common in smaller multi-family complex transactions is to require that estoppel statements be prepared and signed by both the seller and the occupants of each unit. When you compare these signed estoppel statements with the written agreements, and with the seller’s representations, you will be aware of any discrepancy. This has the added benefit of affirming the terms of the rental agreement either written or verbal and confirming rental amounts, due date, names and number of authorized occupants, and the amount of security deposit currently being held for each unit.

A buyer is required to make a reasonable inquiry and investigation as to the amount of security deposit held. If the buyer fails to inquire, then the tenant may prevail in an action against the buyer for return of deposit, even if the deposit was never transferred to the buyer in escrow. As crazy as it sounds, the law provides that a tenant may prove the existence of a security deposit by documentary evidence or merely by a declaration in certain circumstances. In addition to a thorough review of your tenancy agreements, inspect other contracts relating to the property. If you see a laundry room, inquire as to who owns the machines. If the machines are leased, request a copy of the laundry lease agreement, and contact the laundry company to confirm the terms.

Q: Parking is very tight in the neighborhood around one of my buildings. My apartment building has 14 units and 14 parking spaces. There is just enough parking for each of my residents to have one space. If a resident has more than one car, they must park it on the street. It has been working out fine for years but now I have this one tenant who refuses to follow the rules. He is constantly parking his second car in someone else’s assigned spot. I’ve told him several times but he just ignores me. What do I do?

A:
Your community rules and regulations should specify your parking rules, specifically stating that only one vehicle may be parked on the premises, and that all parking is assigned. Ensure that you have the proper signage at the entrances of the parking area. Most cities require the sign to contain certain restrictive parking language, plus the local police department telephone number, and the California Vehicle Code section that provides for towing of unauthorized vehicles. Contact your local police department for their specific requirements, as they vary from city to city.

Next if you know the offender, then provide a written warning of the violation. Attempt to serve it at his residence, post it on his door if he’s not in, and also put the warning on the windshield of his car. If practical, take and save a photograph of the warning on the vehicle windshield and on the offender’s apartment door, if applicable. The offender will always claim that you did not give prior notice before towing, so ensure that you document the warnings well. If he fails to remove the offending vehicle, the car may be towed.

Q: I’m still a bit confused about the security deposit disposition form, and whether or not I must include receipts. Can you summarize it for me?

A:
The method of accounting for security deposits after a tenant has vacated your rental unit is defined by statute. California law requires that certain documentation be provided to the departing tenant under certain circumstances. The law requires that landlords prepare and send an itemized statement, within 21 days of the tenant returning possession detailing all deductions from the security deposit.

If the deductions for repairs and cleaning exceed $125, then the landlord must provide copies of receipts and invoices along with the itemization, along with the name, address and telephone number of the vendor who did the work or provided the supplies. If the repairs cannot be completed within the 21-day time period, you may provide an estimate of the work needed within the 21-day period. Upon completion of the work, you must provide receipts and invoices within 14 days of completion. The law provides that an owner and his employees may perform the work themselves and charge a “reasonable” fee. The law is clear as mud as to what that reasonable fee may be, suffice it to say that owners should maintain logs and time sheets to justify time spent on repairs and the reasonable hourly rate charged.


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.

Marijuana, Utilities

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Q: My apartment building has always been a nice and quiet community, no bother, no worries. Everyone keeps to themselves; never have complaints about behavior. Well, that all changed when my manager let down her guard and didn’t fully screen my newest residents!

Ever since these two characters moved in, flashing me their “doctor’s note” saying they could smoke pot, they’ve been puffing away ever since. Apparently they claim to be “disabled” and that because they are “disabled” they get to do whatever they want. Huge clouds of smoke literally billow out of their apartment! I’m concerned about lots of things, but mostly, the little girl who lives next door, I believe that she’s asthmatic. How much more of this must I, and the neighbors, take?

A:
The audacity of some medical “professionals” to abuse and game the system by willfully pro scribing the use of “medical marijuana” to non-disabled fraudsters is an affront to all truly disabled persons.

As of this writing, the use of marijuana, medical or otherwise, is still illegal under federal law; however, the federal government has elected to stay any enforcement and prosecution for the use and/or possession of “medical marijuana.”

California legalized the recreational use of marijuana, which allows for the possession of a limited amount of marijuana, for personal use, provided certain requirements are met. Marijuana smoking is restricted by location. It may not be smoked wherever smoking is prohibited by law, within 1,000 feet of a school, recreation center, or youth center, on a school bus, or in a moving vehicle or boat. The right to “smoke” marijuana in your apartment community is not automatic, and will depend upon the individual facts of each case. The use of nonmedical marijuana is technically illegal under federal law and, as such, cannot be used or smoked anywhere, including your community, and may be grounds for termination of their tenancy.

The use of medical marijuana requires that the user be disabled, and the disability must be “verifiable.” Additionally, the disabled individual must request a “reasonable accommodation” from you, the housing provider, prior to just lighting up. Once the disabled person makes the request for a reasonable accommodation, you are obligated to consider the request, and attempt in good faith to accommodate the request in a reasonable manner. The accommodation does not necessarily require you to “grant” the request outright, but you must make a good faith effort to provide an accommodation that addresses the disability, but does so in such a manner that it does not unreasonably “burden” you, the housing provider. The courts will apply a “benefit to the requestor” versus a “burden to the housing provider” standard in determining whether or not you met your obligation to reasonably accommodate the disability.

In your specific situation, the initial hurdle for your new residents to surpass is to establish that one or both truly has a “verifiable” disability. A “doctor’s note,” provided it has not been forged, although highly suspect, will generally satisfy the extremely low threshold here in California. The reasonable accommodation, their request to smoke willy-nilly within the apartment, must be balanced with the “burden” to you, the housing provider, and those other residents that might be affected, i.e., the asthmatic child living next door. It is conceivable and probably likely that an asthmatic child, when exposed to the smoke billowing from next door, might have a devastating and fatal reaction. Certainly the neighbor child, with a truly verifiable disability of asthma, is entitled to be free of the exhaled smoke as a “reasonable accommodation” for her verifiable disability.

When balancing the benefit to “Cheech and Chong” of being able to light up in their apartment, with the burden to you as well as the extreme life threatening burden to the asth matic child, courts would most likely find that a reasonable accommodation would be to prohibit the smoking of the marijuana within the apartment unit or in any place that might affect the asthmatic child or others with such a sensitivity to smoke; but to provide an area within the community, possibly a portion of the outdoor common area, that may be used for the smoking of their medical marijuana. Alternatively, there are other methods of delivering the active ingredient in marijuana, i.e., ingestion, pills or tablets, food based, etc.

Remember, reasonable accommodation issues are extremely fact-sensitive and the analysis is dependent on a proper review of the relevant facts. Always contact an experienced attorney when faced with a request for a reasonable accommo dation, as the issues are typically complex and a reasoned response must be made in a timely manner.

Q: My new tenants just moved in a month and a half ago. The lease requires that the tenant pays for all utilities, and must put the utilities in their own name prior to moving in. Well, I just received the electric bill and it’s still in my name. I’m thinking about not paying it, just letting it get shut off. Maybe when the lights go out, they’ll take care of it. Can I do that?

A:
No, you cannot let the utilities be shut off. Your tenant’s actions are a breach of the rental agreement and must be addressed in compliance with California law. You should immediately prepare and serve a Notice to Perform or Quit - Breach of Covenant notice. The notice should identify the specific breaches, the failure to place the electric utility in their own name, and their failure to pay the utility charges incurred since taking possession. The notice should be specific as to how they must cure the breach, namely, they must put the utilities in their name, and reimburse you for the amount of utility changes that have been billed and incurred post tenancy.

Note that some jurisdictions may require that you include a statement identifying a witness who observed the breach, as well as the date and time of the breach. In such jurisdiction, you or your manager would suffice as the witness, and the breach would be considered “ongoing” as it continues to occur. In the event of non-compliance, you would be entitled to file an unlawful detainer action to recover possession of the premises. Rarely though is that necessary, as the vast majority of residents will immediately comply.


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.

Rent Deductions, Disagreements, A Leak

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Q: It’s always something with one particular tenant of mine. When he first moved in three months ago, he deducted about $100 from the rent because he said he had to fix a few things in the unit. I didn’t say anything at the time, I needed the unit rented, and I didn’t want to upset my new tenant. Since then, he has been able to find something wrong each and every month, deducting a little bit each month. I told him I didn’t think that was right, but he did it again this month. He says he is entitled to it, that California law says he can “repair and deduct” for anything wrong in his apartment. Is this true?

A:
No. California law, specifically California Civil Code Section 1941.2, provides that a residential tenant may make repairs and deduct the cost from the rent only under certain circumstances. These certain circumstances require the tenant to give the landlord notice of the dilapidation before using the repair and deduct remedy. After giving notice, the landlord has a “reasonable time” to make the repairs, before the resident can unilaterally “repair and deduct.” Only defects that render the premises uninhabitable will qualify for this remedy. Tenants may only invoke this remedy twice in any 12-month period, and each time the remedy is utilized, the tenant cannot exceed one month’s rent. In your situation, it appears that the tenant is abusing a privilege only available to tenants with serious dilapidations in their apartments. Without providing notice to you of the defect, and an opportunity for you to correct any serious defect, the tenant is not entitled to deduct anything from his rent. Provided you haven’t condoned his conduct or waived your rights to accept the full amount of rent, you may demand that the tenant pay all amounts previously deducted and become current.

Q: My tenants and I seem to be able to work out our differences quite easily, but there are times when we disagree as to just who is responsible for making certain repairs to the apartment. Can you give me some guidelines that will help me decide if the repairs are my responsibility or the responsibility of the tenant?

A:
Residential rental units must be “habitable.” In legal terms, “habitable” means the rental unit is fit for persons to live in and that it substantially complies with state and local building and health codes that materially affect a tenant’s health and safety. The law makes both landlords and tenants responsible for certain repairs, but you are ultimately responsible to ensure the unit is habitable. You are not responsible under the “implied warranty of habitability” for repairing damage caused by the tenant, his guests or his pets. You are responsible to take care of the habitability items, but your rental agreement can determine who takes care of the minor repairs. California law lists several items that are required to maintain a habitable unit. These are: effective water proofing and weather protection, including unbroken windows and doors; plumbing in good working order, including hot and cold running water connected to a sewage disposal system; gas facilities, heating, and electrical in good working order; clean and sanitary buildings and grounds; adequate trash receptacles; and floors, stairways and railings in good repair.

Additionally, each rental unit must have a working toilet, washbasin and a bathtub or shower; operable dead bolts on the main entry doors, window locks and smoke detectors. A landlord is also responsible for the installation and maintenance of the inside wiring for one telephone jack.

Tenants must take reasonable care of the rental unit and the common areas. Tenants are responsible for repair of all damage resulting from their neglect, abuse or acts by their family, guests or pets. Tenants must do all of the following: keep the premises “clean and sanitary;” use and operate gas, electrical and plumbing fixtures properly; dispose of trash and garbage properly; not destroy, damage or deface the property; not remove any part of the structure, dwelling, facilities or equipment; use the premises as a place to live and use the rooms for their intended purpose; and notify the landlord when dead bolts and window locks don’t operate properly.

Q: I have a problem in one of my rental properties. The property has parking below the complex for the residents. Apparently, due to the rains, a leak occurred in the ceiling of the garage. The water collected in one of the ducts, becoming quite dirty and rusty. This water then leaked down onto a resident’s car. As it turns out, the car’s rear passenger window was cracked 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 profusely and offered to have her car washed and detailed. She accepted. However, the next month, this tenant’s rent was $175 short. Along with the rent, the tenant included a letter stating that she had deducted the cost of the damage to her personal belongings. Can the tenant do this?

A:
No. A leak onto the automobile of a tenant has nothing to do with the tenant’s obligation to pay rent. As such, the tenant may not deduct these items from her rent. You would be within your rights to serve the tenant with a 3-Day Notice to Pay Rent or Quit for the $175 difference. As far as the damage to her personal property, the landlord is generally not liable for the tenant’s personal property unless the landlord was somehow negligent.

Q: I am an owner of several complexes. All of the on-site managers have different “theories” on what to do with a tenant’s personal property when the tenant vacates. I know that there is a duty to safeguard the personal property, but could you please tell me the procedure and duration of my duty to store a former tenant’s personal property?

A:
Well, the answer depends on under what circumstances the tenant vacated. If the tenant vacated voluntarily, you must mail a Notice of Abandonment of Personal Property to the tenant’s last known address and allow the tenant eighteen (18) days to claim the property. If, however, the tenant vacated following the enforcement of a writ of possession, you must allow your tenant fifteen (15) days to claim the property. The property must be kept in a reasonably safe place but does not have to be stored in the leased premises. If the property left behind is less than $700 you may dispose of it after the above required time periods.

However, if the abandoned property is worth more than $700 in fair market value, you must sell the property through a public sale. This requires you to publish the date and time of the sale in a newspaper of general circulation once a week for two consec utive weeks, with the sale the following week. If the tenant returns to claim the property, you must return it, but you can charge reasonable storage fees. Be aware that you may not hold the property as ransom for the rent owed, even if you have a judgment.


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.

Pools, ADA and Attorney Fee Provisions

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Q: I just put my single-family house on the rental market and have agreed to rent it to a nice family of four: mom, dad and two kids, ages two and five. The parents seem responsible enough and I’m sure they’ll make great tenants, but I am concerned because the house has a pool. Is there anything I can do to protect myself from liability should one of the children fall in and drown?

A:
The short answer is yes. There are several measures you can, and should, take to protect yourself. First and foremost, ensure that the pool and the gate/enclosure conform to all state and local codes and ordinances. The gate should be self-latching and should be checked to ensure that it closes properly.

Review your insurance policy with your broker to ensure that your coverage is adequate; consider an umbrella policy as well. Your broker can counsel you on coverage limits; consider $3,000,000 as a minimum. Finally, you should include as part of your rental documents an addendum to the lease in which the tenant acknowledges the dangers of the pool, agrees to ensure that all gates are kept closed, and agrees to periodically verify that the self-latching gate functions properly. Consider requiring that your tenants procure renters liability insurance as well. These requirements should be a part of your rental policies for a property with a pool, regardless of whether or not your tenants have children.

Q: A couple of weeks ago, one of my more senior residents fell and broke her hip. Her health has been deteriorating over the past several months, and this has really affected her mobility. She is now in a wheelchair most of the time. She’s lived in our community for many years and I’d hate to see her move; everyone loves her. Her son asked if I would take out the carpet and install vinyl flooring throughout the unit so that her wheelchair could get around easier. He also requested that I install grab bars in the shower and in the bathroom. He 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 my husband and I are barely making it as it is. Do I have to pay to install vinyl flooring and grab bars in the apartment?

A:
No, you do not have to bear the cost; however, you 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 apartment. The resident must pay for the modifications, and the modifications must be done in a workmanlike manner. You can require the tenant to sign an agreement obligating the resident to restore the premises to their original condition upon termination of the tenancy. Although you cannot require an additional security deposit in this situation, you can require that the tenant deposit sufficient money into an escrow account, to be held for the benefit of the landlord, to assure that the premises are returned to their original condition. The money that is deposited into escrow is not a security deposit and is not limited by the two-month limitation.

Q: My rental agreement has a provision requiring that “the prevailing party shall recover reasonable attorney fees and costs in the event litigation is commenced.” It goes on to state, however, that attorney’s fees are capped at only $500. I’m thinking of crossing out this last part, I don’t want to limit my recovery if I ever have to sue the tenant. What do you think?

A:
Keep the provision as is. Do not strike it. Attorney fees provisions are important provisions and should be included in all rental agreements. The vast majority of litigation involves the filing of an unlawful detainer by the landlord against the tenant. Landlords prevail in 99.9 percent of all cases and should be compensated for their attorney fees expended. Attorney fees for evictions generally do not exceed $500, even in most contested matters. Remember, court costs are not attorney fees, are not capped, and get added to the judgment.

Most courts in Southern California calculate attorney fees in accordance with a court schedule, rather than actual fees incurred. Typically, courts allow $350 to $450 as recovery for attorney fees, even in a typical contested eviction.

The purpose of the cap is to dissuade tenant attorneys with too much time on their hands from demanding jury trials, and from filing frivolous lawsuits against landlords. If the potential for recovery is limited, the incentive to bring an action against you, the landlord, is greatly diminished.

Also note that when judgment is entered in your favor, and the judgment includes an award of attorney fees, then all post-judgment attorney fees are recoverable and can be added to the judgment during the entire period of time you are attempting to collect. Not only does your judgment accrue interest at the rate of 10 percent per year, but all those collection fees can be recovered as well.

Q: I’ve always heard that I should post my rental criteria in a conspicuous place so that applicants can plainly see whether or not they are qualified before they submit their application. I typically require that the applicants combined income exceed three times the rent; however, I might make exceptions. Also, in years past, a foreclosure on an applicant’s credit report was an automatic disqualifier, but after attending your tenant screening class, I have reconsidered. With so many exceptions to my rental criteria, my sign would be huge! How do I handle this?

A:
Yes, it’s a good practice to post your rental criteria in a conspicuous place. The details and specifics of your rental criteria, however, do not need to be included as these details and specifics are not necessarily static; that is, they may change or evolve over time depending on your situation.

For example, your three times income require ment may work fine if you have a single vacancy and a dozen applicants. However, it may be a bit too restrictive in a different economy or in the event you have three vacancies, your phone hasn’t rung in days, and you’ve only received a single appli cation in the past two weeks.

Every owner should establish the following as their general rental criteria. A qualified applicant should:
i) have a verifiable and positive credit history; ii) have a verifiable and positive past tenancy history;
iii) have sufficient and verifiable income to meet his or her present and future financial obligations; and
iv) should not pose a risk of harm to the rental property or to others. These general rental criteria can and should be applied equally and fairly to all applicants, and in compliance with all fair housing rules. Once applied, the best applicant should accepted, not necessarily the first to apply.


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.

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