Duringer-Legal Corner

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.

SSN, Inspections, Returned Check

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Q: 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 and 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?

A: 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 a Social Security 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 a 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 tenants’ rights advocates, and that is exactly what they are, advocates, advancing the rights of tenants at the expense of landlords, 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 credit worthiness 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.

Further, 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. A consistently enforced policy of requiring a Social Security or a Taxpayer Identification Number in order to screen your prospective residents does not violate Fair Housing laws and does not constitute illegal discrimination.

Q: 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?

A: 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 cooperation exists between a landlord and his residents. 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 workers 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.

Q: Just opened up the mail, and what do you suppose was in it? A notice from my bank informing me that one of my tenant’s rent checks was returned unpaid because he placed a stop payment on it. Imagine that, it’s now midmonth, no warning, no phone call, the deadbeat didn’t even have the courtesy of letting me know he was going to stop payment on his check. It kind of makes sense though, he asked a couple of weeks ago if I’d let him out of his lease early; guess his girlfriend has a nicer place and he wanted to move in with her. I called his phone number and got a recording saying that it had been disconnected. His cell phone works, got his voice mail, and left a message. I’m guessing that when I swing by the unit later today, it will be empty. What do I do now? I don’t want to make any mistakes. Can I just change the locks if he’s out?

A: You have a couple of issues that you need to resolve. First, the issue of return of possession of the premises and then, of course, getting you paid. If the tenant appears to have vacated when you visit the unit, then you must follow certain procedural rules before you simply change the locks. Ideally, you will be able to contact the tenant on his cell or at work. If you make contact, ask that the tenant confirm that he is out by faxing or emailing you written confirmation. If you are able to confirm that he has moved out, you will not have to follow the abandoned real property notice requirements, and will be able to retake possession immediately.

If when you visit the unit and find that it is vacant, and if the rent is due and unpaid for 14 days and the tenant has not voluntarily surrendered possession, then you must serve a written notice of Belief of Abandonment of Real Property. The notice can be posted on the premises and mailed by regular mail to the tenant’s last known address, your property. You must wait 18 days before you retake possession. If the tenant does not reply, in writing, by informing you of his address for service of an unlawful detainer within 18 days, then you may retake possession, and change the locks.

Once you regain possession, prepare the security deposit disposition form. If he skipped mid-lease, he will owe the balance of the term, or until you mitigate your damages by re-letting the unit, whichever occurs first. Hang on to the tenant’s check that was returned by the bank. Stop payment orders are only effective for six months, unless renewed by the maker, which rarely happens.

That means, in six months and a day, you can redeposit the check, and if there are sufficient funds, the check will clear.

 

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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