Legal Corner

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.

3 Day, 30 - 60 Day Notices, Grace Period and more

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Q: I have been a property manager for many years. As a matter of practice, when I serve Three-Day Notices to Pay Rent or Quit, I always attach a letter outlining the rent owed along with the late charges for a total amount due and owing. Most tenants understand that since their rent is late they have incurred late charges. Yet recently, I had a judge rule for the defendants stating that my notice was inaccurate because of the confusion created by the two different amounts requested between the Three-Day Notice and the attached letter. Was the judge right and what do I do in the future?

A:
Assuming your Three-Day Notice to Pay Rent or Quit was valid, the attached letter requesting a different amount than that requested on the Three-Day Notice creates an ambiguity that will be decided in favor of the Defendant. For example, if your Three-Day Notice to Pay Rent or Quit demanded rent of $1,200 for the month of April and then your attached letter states that the tenant owes $1,200 plus a $50 late fee for a total due and owing of $1,250, what amount must the tenant tender to cure the default? Thus, the ambiguity will render the notice defective. In the future, you should instead, prepare both a Three-Day Notice to Pay Rent or Quit, for the rent, plus prepare and serve a Three-Day Notice to Perform Covenants or Quit for the late charges. By demanding the rent on one notice along with a demand for late charges on the other, the tenant is obligated to comply with both.

Q: When I serve 30-Day or 60-Day Notices to Vacate, I normally wait until the tenant pays their rent for the month before serving them to ensure that the owners will not be out that month’s rent. Well, I recently was told that after serving a 30-Day Notice that I could serve a Three-Day Notice for Rent if the tenants do not pay. Is this true?

A:
Yes. Despite the existence of the Termination Notice, a tenant is still responsible for the rent during the notice period. Thus, if you serve a 30-Day Termination Notice to Vacate on July 1, the tenant is still responsible for the rent through July 31. If the tenant does not tender their rent for the month of July, you may serve a Three-Day Notice to Pay Rent or Quit requesting rent for July. However, be careful when you are calculating the dates that rent is due. If you served a 30-Day Notice on June 20 to expire July 20, then the tenant does not owe rent for the whole month of July but rather a prorated portion for 20 days of July’s rent. If the tenant were to pay July’s rent in full and you accept, your 30- Day Notice would be waived.

Q: I aggressively manage my properties. I find that by requiring all the tenants to pay rent on the first of the month and not giving them a grace period, I have far fewer evictions and vacancies. Thus, if a tenant does not pay their rent by the first of each month, I serve them a Three-Day Notice to Pay Rent or Quit on the second of the month. Most of the tenants are responsive and those that are not are evicted quickly with minimal loss in rents. However, last month, after serving a Three-Day Notice to Pay Rent or Quit and the tenant failed to comply, I contacted an attorney to initiate the eviction process. He informed me that I was premature in serving the notice as the first of the month fell on a weekend and the tenant had through Monday to pay me the rent. Is he right?

A:
Yes. A Three-Day Notice to Pay Rent or Quit is only effective if it is served after the rent demanded becomes due. However, if the rental due date should fall on a weekend or holiday, the tenant has through the next business day to tender the rent in compliance with the rental agreement. For example, if the rent is due on the first of the month, it is normally deemed late on the second of the month if not received. However, if the first should fall on a weekend or holiday, the tenant has through the next business day to tender the rent, or Monday for purposes of our example. Your Three-Day Notice would be premature if the first fell on a weekend and you served the notice on Monday. Yet had you waited until Tuesday to serve the notice, your notice would be valid.

Q: I guess I am becoming hard in my old age because I am finding that it does not pay to work with tenants when it comes to paying rent. I used to accept money from tenants even after I served them with a notice for non-payment of rent. I thought that it was helping me because I would not be out so much money every month. As it turns out, it was a lot more work and very little difference in income. So now I do not accept any money after the expiration of a notice. Am I okay by not accepting rent?

A:
Yes. After expiration of the notice period, there is no obligation by the landlord to accept any sums, either a partial payment or payment plus additional charges. If the landlord chooses to accept partial funds, they must serve a new notice for any unpaid balance in order to proceed forward and file an unlawful detainer. Of course, if the landlord accepts payment in full at any point, then the notice and remedies of forfeiture thereunder are waived.

Q: When serving notices, our policy is to “postandmail” whenever possible to avoid confrontation. Now, my attorney is telling me that the law requires that I try personal service first before posting and mailing. Is she correct?

A:
Yes. Under California Code of Civil Procedure, Section 1162, a Three-Day Notice may be served by the following methods: (1) A copy of the notice may be delivered to the tenant personally; (2) If the tenant is absent from his or her place of residence and usual place of business, a copy may be left with a person of suitable age and discretion at either place, and a copy mailed to the tenant at his or her place of residence; or (3) If the places of residence and business cannot be ascertained, or a person of suitable age or discretion cannot be found, a copy of the notice may be affixed in a conspicuous place on the property, a copy delivered to a resident (if one can be found), and a copy mailed to the tenant at the location of the property.

Note that method (2) may be used only if method (1) was tried but failed to reach the tenant. Method (3) may be used only if methods (1) and (2) were tried but failed. Thus, “post-and-mail” should not be your standard policy for service of a Three-Day Notice when personal and substitute and mail service were not attempted.


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.

Collection Rates, Deadbeat, Escrow, Renewal

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Q: Is there anything I can do to increase my collection rate after I've evicted someone? Seems like after the Sheriff gives them the boot, these characters just disappear into the wind never to be heard from again. I know you see this every day, so/ thought you might be able to share some thoughts that will help me get my money back from these deadbeats?

A: Of course. Start thinking collection before you even create the tenancy. It seems counter intuitive, sure, but your tenant screening process lays the groundwork for firms like ours to go after and collect the monies due you after the tenant vacates. A complete and verified application is the best start. Those crazy questions asking for references and emergency contact information is where a good collector will start to find that former tenant. A legible copy of a valid government issued iden­tification is important as well. Make a photocopy of the first rent check you receive from your brand new tenant, then each month compare the bank information to see if it changes. Copy any new check the tenant tenders and put it in your file.

You should ask your tenants for emergency contact information, i.e., cell phone, email, work phone, etc., on a regular basis, at least once every year. Phone numbers, cell and work change throughout the course of the tenancy, the best information is the most current. Generally, tenants fully cooperate at the inception of the tenancy and during the term prior to any dispute, Rarely do tenants refuse to provide such contact information as most rec­ognize that it is needed in the event it's necessary to contact the tenant during the tenancy in case of emergency. In the event of an eviction, make sure your attorney proceeds to get the money judgment for rent, costs and attorney fees. If the tenant skips, small claims court is generally the place to go to reduce the amount due to a judgment. A judgment, coupled with the information stated above, in the hands of an aggressive collection attorney will dramatically increase the likelihood of securing a full recovery.

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 mid­-month, 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 as a couple of weeks ago he asked 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 later today, it'll 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 later today, 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 reletting 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.

Q: I just closed escrow on a small building and I'm trying to figure out who's who. I received the rental agreements, but the tenant information seems incomplete. The applications, the few that I've found so far, are old and outdated. I can't seem to find any telephone numbers for the residents, and I'm not real sure that the names on the agreements are the same people who actually live in the units. I've read your articles before and I know the importance of reviewing the files and doing thorough due diligence before closing escrow, but this deal just happened too fast. Now that I've closed escrow, what can I do to clean up the records?

A: First things first, figure out what you know and what you don't. Establish individual tenancy files, one per unit. Based on the limited information you have, write down the names and ages of the occupants, the terms of the rental agreement, written or oral, lease or month-to-month, rental rate, deposit on file, and date paid through. Compile whatever contact information you have: home phone number, and work and cell numbers. Design a "tenant emergency information sheet" that includes spaces for the following: names of all occupants, home and cell phone numbers for each occupant, work phone numbers, email addresses and detailed vehicle information.

Visit the building about dinner time as most resi­dents will be home, and go door to door and meet briefly with the occupants of each apartment. Spend a few minutes confirming the information in your files and gather any missing information. Ask the residents to complete the "tenant emergency information sheet," for use in case of an emergency, while you are there. You will find that the vast majority of your residents will cooperate fully and provide the requested information. Residents are generally eager to please, and since the relationship is still new, there should be no animosity or distrust.


This is also a good opportunity to find out the condition of each unit; simply ask the residents if there are any issues that need addressing. Better to find out now and have an opportunity to address the needed issues than to allow conditions to worsen, as well as your relationship with the residents. This is also an opportune time to prepare new month-to ­month rental agreements for signatures. You don't know the players yet, so you certainly don't want to do fixed term leases. The few residents who are less than cooperative will be quickly identified as your "problem residents" and can be handled individually. Names and contact information of the uncooperative ones can generally be gathered from the other residents, or from public records. If the property is not rent control, and a month-to-month tenancy, the rental rate and term can be set with either a 30- or a 60-day notice of change of terms, depending on the extent of the change.

Q: Some of my leases are coming up for renewal in the next few months. One of these leases is for a resident who has been a thorn in my side since the day he moved in. If I don't want to renew him, do I need to provide him a reason? Also, do I need to serve any particular type of notice?

A: Provided your property is not located in a rent or just cause eviction controlled area, then you do not have to provide a "reason" for non-renewal. Provided your desire is not based upon illegal discrimination and is not in retaliation for the resident exercising a protected right, then you are free to "not renew" the lease. Generally, a fixed-term lease expires on a certain day. Provided there is no language in the lease that "automatically" converts the lease to a month-to-month tenancy, then the resident is required to vacate on or before the lease expiration date. Neither the tenant nor the landlord is required to serve any prior notice. However, most industry lease agreements used by landlords include an automatic conversion provision that states that the tenancy automatically converts to a month-to-month tenancy unless a written notice of termination was served by either the landlord or the tenant. In this event, a written notice of termination would have to be served to terminate the resident's tenancy.


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.

Third Party Rent, Screens, Vacancy

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Q. Just received a letter from one of my longer term residents. Long story short, she says she won’t be able to pay next month’s rent because of an upcoming medical surgery that will keep her from working for six weeks. A charity has offered to pay the rent for her, and is asking that I sign a paper affirming her tenancy and agreeing to accept rent from them. Money is money I guess, any problems with accepting?

A.
Generally that is true, money is money, but a couple of issues to keep in mind. Acceptance of rent from a third party can create certain rights in the third party that you may not want. Additionally, the paper that you are being asked to sign may bind you to terms that may not be acceptable to you. Review the document that they are asking you to sign.

Ensure that the agreement is clear, and says exactly what is being represented to you, namely that the rent payment is being made by a charity on behalf of your existing tenant, that no tenancy rights are being created with the third party, and that you are not waiving any provisions of the lease. Watch out for terms stating that you are agreeing to continue the tenancy for some period of time, typically six months, or that you are agreeing to not serve a notice of termination of tenancy without prior notice to the charity, or some other provision that may alter or restrict your rights.

Q. Seems like I’m replacing screens and clearing drains on a regular basis for one of my residents. At the end of the day, I’m not sure if I have more money going out for repairs than I have coming in as rent! How do I control the repeat repairs and expenses?

A.
It’s very important to create a baseline with your tenants. Upon move in, ensure that you use the move in inspection checklist provided by your apartment association. Itemize any and all defects or items that are in need of repair, and note any nonhabitability items that have pre-existing damage that you are not required to and do not intend to repair. Ensure that all habitability items are promptly corrected and that you document that fact by entering it into your maintenance log, and have your resident sign off that the work was completed satisfactorily. Your rental agreement will identify who is responsible for what repairs and maintenance items. Make sure you review these responsibilities with your tenants so that they are aware of what is expected of them. Often landlords shift the burden of small plumbing stoppages to the tenant, while retaining responsibility for main line blockages. Your rental agreement should state that the apartment is equipped with the requisite screens, and that the resident has inspected them and agrees to maintain them during the tenancy.

Q. I’m accepting applications from prospective residents for an upcoming vacancy. I’m kind of surprised at the response I’m getting from my advertisement. Lots of calls, and lots of interest.

A fellow in a wheelchair applied, and asked if I allowed co-signers. Says that because of his injury, he can’t work full time, and that his parents help him out with the rent. I have always had a strict no co-signer policy, just seems like too much hassle, so I told him that I was sorry, that I did not accept co-signers and wished him good luck. Now I think that maybe I should have handled the situation differently; should I have?

A.
Yes, even though you have a policy of not accepting co-signers, there are exceptions for persons with a verifiable disability. Federal and State law provide that a no co-signer policy may be a violation of the Fair Housing Act as applied to a person with mobility or other verifiable disability. You would be required to “reasonably accommodate” the disabled person by making an exception to your no co-signer policy, as the courts would likely find that the benefit to the resident greatly outweighs the burden to you of allowing a co-signer.

Q. I rented an apartment to four roommates quite a while ago. One of the four is now moving out, but the other three are staying. The one moving out is demanding that I return his portion of the security deposit. Do I have to?

A.
No, the security deposit remains with you as long as any of the roommates remain in possession of the rental unit. Absent a written agreement to the contrary, when all the remaining roommates vacate, the refund check should be made payable to all four of the roommates.


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.

Bed Bugs, EFT, Gyms

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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.

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