Duringer-Legal Corner

ADA Requirements and Paying Tenants

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Q: 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:
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 to ensure that the property is returned to its original condition.

Q: My tenants and I have had a very good relationship. They have been paying the rent on time and they don’t disturb any of their neighbors. In the past, I‘ve hired them to take care of various projects around the complex. The work done has been satisfactory. Until recently, I would either pay them in cash, or simply drop off a check in their mailbox. Now, the tenants are asking me to offset their payment from their rent. I told them I’d think about it and get back to them. If I accept their request to just offset the value of their repair work from the rent, am I asking for trouble?

A:
You should never mix your tenancy relationship with the work performed by your tenants. Keep the relationships separate and distinct. Not only is it good business practice, but it also prevents many legal issues from arising. If you mix the issues of services performed in exchange for payment of the rent, you have now expanded your tenant’s potential defenses as to why he or she should not pay the rent. If the rent is a separate transaction, the tenant will have no claim that he is entitled to a reduction or a credit for work performed but not paid. Also, if you have problems with the tenant’s work product, you can hash out those work-related issues while the tenant continues to pay rent. Be very cautious when allowing your tenants to perform work on your building. The benefits may seem great, but the pitfalls are many.

 

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.

Small Claims

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Q: I recently had the pleasure of spending my entire morning watching small claims cases come and go, while waiting for my own. The more I watched, the more I realized that it is a highly “subjective” area, and prone to a lot of “creative” testimony. Needless to say, by the time my case was called my confidence level had been reduced several notches. I guess I did ok, at least better than most, but I’m not sure what I could have done that would have helped. Can you give me some pointers that will help me out next time?

A:
If landlords and tenants are meeting in small claims court, it usually is because the tenant is suing the landlord over a security deposit, or the landlord is suing the tenant over damages done to the unit over and above the security deposit, or some combination of the two. Whatever the underlying cause of action, there are many things a landlord should do that would greatly reduce the chances of being brought into a suit or if a suit is brought, will greatly increase the landlord’s chance of prevailing. Proper tenant screening at the inception of the tenancy will effectively weed out the “habitual” litigant. By verifying past tenancies, many former landlords will volunteer past disputes and their outcome with you.

Using the proper rental agreement will also aid you in a future lawsuit, by clearly identifying rights and duties of all parties during the tenancy. A properly completed move-in inspection form signed by the tenant establishes a baseline in which to determine future damage. Proper documentation recording requests for repairs, actual repairs made, defining the cause of the needed repair, and correspondence documenting any alleged breach by the tenant, such as over-crowding, failure to clean or maintain or other misuse of the premises. Upon the tenants moving out of the unit, it is important to carefully prepare a move-out checklist detailing any and all damage to the unit such as excessive damage to walls or carpets covered with pet stains or ground-in dirt and oil.

Remember that you are required to properly account for the security deposit within 21 days of receiving possession, charging the tenant only for damages and cleaning in excess of ordinary wear and tear. Stay away from any “standard cleaning fee”, only pass on proper deductions. If the tenant damaged it, don’t be afraid to charge him for it; conversely, if the tenant left the premises in the same condition as when he got it, then refund the deposit. Make sure that you attach copies of all receipts including the name, address and phone number of the vendor doing the repairs to the security deposit disposition statement. One last thing, if you go to court, be prepared, be organized and be truthful.

 

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.

Pools and Utilities

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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: 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 pos session. 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. 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.

A Strange Letter

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Q: I just received a very strange letter. Seems my local police department has identified one of my residents as an undesirable; they say he’s suspected of being a gang banger and is dealing drugs and tagging the neighborhood. They say that if I don’t evict him, the police will prosecute me for allowing a criminal to operate on my property. I may even lose my property! The family has been there for several years, and other than a couple of bounced checks, they have been model tenants. This is the first I’ve heard of this, no one has ever complained before, no complaints, no drugs, no graffiti or tagging around my building, Help! I can’t afford a vacancy right now, and I think that the police might be wrong, what do I do?

A:
In this upside down and crazy world we live in today, this actually is a growing trend in law enforcement. With a judicial system acting more like a “catch and release” fishing excursion than one that metes out consequences for truly bad behavior, law enforcement is focusing on the easier prey—landlords—in controlling crime in their jurisdictions. Rather than prosecute the criminal, many law enforcement agencies are taking the lazy way out and threatening the law abiding landlord, forcing them to evict the resident. Rather than locking up the bad guys, seems like the current trend is to simply shuffle them off to another community. If the police are certain he is dealing drugs and tagging, seems like the right thing to do would be to arrest him, prosecute him fully and send him off to the “gray bar hotel.”

If the letter you received is inconsistent with your experience with your resident, follow up with the police department by asking for documentation supporting their claim. Ask them to provide specific incidents, dates and times of wrongdoing. Have there been arrests on the property? Have illegal drugs been found there? Ask the office to identify any witnesses that would be willing to testify in court, if necessary. Ask other residents in the building, gather independent information. If the information you gather supports your resident’s involvement in criminal activity, take action immediately. Consult your attorney to determine if you have enough facts to support a three-day nuisance notice, or if a 30-day or a 60-day notice is appropriate. Remember, a letter from the police department is not sufficient evidence in court to base a nuisance notice on; testimony from percipient witnesses will be required in the event the resident contests the unlawful detainer 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.

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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