Legal Corner

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.

Riff-Raff, Late Rent, 3-day Quit

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Q: My wife and I are relatively newcomers to the rental business. To date, we have had the good fortune of problem-free tenants. The building is in a real nice area, so the higher rents dissuade a lot of riff-raff. Anyway, I recently had a prospective tenant come by to look at one of the two-bedroom units. He filled out the application, and marked “yes” on the box when asked if he’d been convicted of a felony. You could imagine my surprise to find that he had served time in the slammer. The guy seemed real clean cut and sharp. He even asked me if the building was for sale! Can I legally ask him what the felony conviction was for?

A: Yes. Diligent tenant screening will require further investigation into the prospective applicant’s background. A felony involving a crime against persons or property is highly relevant to the qualification of this particular applicant. You have a legitimate business reason for inquiring further to determine if accepting this applicant will endanger your building or any of the other occupants. A felony conviction for rape, burglary, murder, arson, possession for sale of narcotics, felonious assault or other serious crimes against persons or property may be grounds for denial of a tenancy.

Many landlords will distinguish certain felonies that are not against persons or property; for example, tax evasion conviction, or other so called victimless crimes. Note that recent changes in the law, and guidelines published by HUD, prohibit a blanket denial due to a criminal conviction. Your tenant screening criteria should consider when the convictions took place, the severity of the crime, and whether or not the applicant displays a pattern of criminal behavior. Implementation of screening criteria that identifies applicants who have had felony convictions in the past five years, drug distribution convictions in the past ten years, a pattern of multiple drug possession convictions in the past five years, recent arrests awaiting trial which could result in a sentence that would impact the applicant’s financial ability to pay rent, or sexual, murder, or other violent felony convictions in the past 15 years would comply with the recent changes.

Q: Seems like my residents just keep paying their rent later and later each month. I usually try and work with them; I don’t even begin to nag them until about the tenth of the month. I’ll start with a phone call, and then when they don’t call back, I send them a reminder note. Often the rents don’t come in until after I serve a notice to pay or quit, usually after the twentieth of the month. How can I change this pattern?

A: Your residents pay their rent late because you have trained them to pay that way. Your rent collection techniques are lax, and your residents are all too aware of your procedures. Many residents live paycheck to paycheck, and will wait until the last possible moment to pay their obligations. Your residents apparently know that you “try and work with them” and that you don’t even start looking for the rent until the tenth. Your phone calls and reminder notes are nice, but not legally sufficient to ensure timely payment. Your residents know the drill, phone call, letter, and then the notice. They pay when they absolutely have to in order to avoid being evicted.

A tighter rent collection policy, coupled with a good rental agreement will eliminate your problem of late payments. Consider using a rental agreement, which includes a properly drafted late charge provision. It is important to note that not all late charge provisions are enforceable. The language used in the agreement must characterize late charges as “liquidated damages;” that is, it must state that the damages sustained by the landlord are difficult or impossible to ascertain, and that the parties agree that a certain sum, the late fee, is the amount of compensation due the landlord. Your rental agreement will define when the late fee is incurred. Typically, the late fee is incurred if rent is not paid by the third of the month. Remember, this clause does not provide a “grace period” to the resident; it merely defines when the late charge is incurred. Late charges must not be punitive, rather they must reasonably relate to the costs incurred by late payments. The charge should be a fixed amount rather than a variable charge that increases by a certain amount each day the rent is late. Although the law is silent on the subject, courts generally allow late charges of six percent of the rental installment.

Additionally, consider adding a clause in your rental agreement requiring that the resident pay a “notice service fee” in the event the landlord consults an attorney and serves a notice of default. Again, the fee must be reasonable rather than punitive. If your primary goal is to just get the rent paid timely, you should send all of the residents a notice reminding them of their obligation to pay their rent on or before the first of the month, and they should budget accordingly. Let them know that you intend to strictly enforce the terms of the rental agreement. If you have allowed the late payments over a long period of time, provide the residents at least 30 days warning of your in tentions. Late rent payments in a rent-controlled unit are oppor tun ities for vacancy decontrol. Rent-controlled jurisdictions require aggressive rent collection techniques and strict enforce ment of the terms of the rental agreement.

If the rent is due on the first, and the first falls on a weekday, a three-day notice should be served immediately, on the second of the month. Failure to pay the rent in full by the expiration of the notice will support an eviction. Remember, you set the tone for your build ings. If you allow your residents to ignore the terms of your rental agreements, you can be assured that they will do just that.

Q: I recently sent a “Three Day Notice to Pay Rent or Quit” by certified mail. The tenant signed for it, and I got the receipt back. Is this good enough?

A: No. The statute governing service is explicit. Certified mail with a return-receipt is not proper service as to a notice to pay rent or quit. The tenant can raise several defenses, i.e., non-compliance with statutory procedure, as well as denying that he signed or received the notice. Remember, truth is relative for many residents, and often there are no consequences for perjury in court.

Since you did not witness the resident receive and sign for the notice, you will be unable to prove that the tenant signed for it. To avoid trouble with your eviction action, stick to the specific requirements of the Code of Civil Procedure Section 1162. Service may be complete by personally handing the notice to the resident, by substitute service or by posting and mailing the notice by regular first class US mail. Most courts correctly require that the statutes be strictly complied with, and will not hesitate in ruling against you for a technical violation.

 

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.

Commercial, MultiFamily, Escrow

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Q: Seems like it’s getting tougher to manage my commercial buildings. Delinquencies are up, and so are vacancies. One of my larger tenants in my industrial complex just came to me and said they may have to close down. I really don’t want to lose them; they’ve been a good tenant for years and are good at what they do. What can I do to salvage them?

A: Increasing delinquencies and vacancies are on the horizon for many owners in the coming months. In markets where it may be tough to find a replacement tenant, many owners are electing to offer rent deferments to tenants. Rather than waiving rent due, or entering into permanent rent reductions, many owners will offer their existing tenants an opportunity to temporarily pay a reduced sum as rent for a cer tain period of time. The “deferred rent” is then amortized over the remaining term and is repaid in the future. Ensure that any agreement to defer rent is placed in writing and signed by all parties.

Q: Most of my rental properties are residential multifamily, but I have one small retail strip center in Los Angeles that I own as well. I’ve never had a problem with my commercial tenants, but I have one who hasn’t paid rent this month. Can I use the same threeday notice to pay rent or quit that I use for my residential properties?

A: Commercial and residential landlord tenant laws differ in many ways. One major difference between the two is the ability to accept partial rent payments after service of a notice to pay rent or quit for a com mercial property, and not for a resi dential property. Provided the necessary language is included in the commercial notice, you may accept a partial payment without waiving your notice, and may proceed with an unlawful detainer action without having to re-serve a new notice. For that reason, all commercial notices to pay rent or quit should contain language stating that in the event a partial payment is made, it will not act as a waiver of your right to commence an unlawful detainer action. If you have served a notice that does not contain the proper language, and your tenant tenders a partial payment, you may immediately provide the tenant with a letter acknowledging the partial payment, but also stating that the partial payment will not act as a waiver of your right to proceed with an unlawful detainer action. Other than that, review the cure periods stated in the default portion of your lease. Typically the cure period for non-payment of rent or other monetary sums due is three days. Failure to provide proof of insurance is typically three days as well. Most commercial leases will allow ten or thirty days to cure a non-monetary breach. Ensure that the forms that you intend to use are consistent with the terms you have negotiated in your lease agreement, as the terms of your lease will control.

Q: I’m in escrow to purchase a small regional shopping center, and am in the middle of conducting my due diligence. I’ve gone through the leases and am having some difficulty verifying the terms of some of the tenants’ obligations. My agent, nice guy but a bit green, isn’t much help. He just wants escrow to close so that he can get paid. The seller appears to be disorganized, but not sure if he is giving me the full story. How can I be sure I’m getting the straight story?

A: Thorough due diligence is absolutely critical to ensuring that the deal is one that makes sense to you. A good real estate agent and his broker will actively assist you in ensuring that your requests for information are properly responded to, and will assist you in conducting your due diligence.

Contact your broker and request that he as sign a more seasoned commercial agent or broker to assist you in the transaction. Depending on the size and complexity of the transaction, you may wish to retain the services of a real estate forensic accounting firm to verify the financials. Ensure that you have complete copies of all existing tenant leases as well as all addenda. Estoppel agreements signed by each of the tenants as well as the owner, affirming all of the terms of the tenancy, including any options are a must. A site visit and individual meetings with each of the tenants is advisable as well. It’s amazing what a five-minute conversation with each of your soon-to-be tenants will reveal.

Q: I have a tenant who just skipped out last weekend. He’s been behind in his rent, but I was working with him and he was catching up. I got an email this morning from him; it confirmed that he was out; it said he left the keys in the unit. Guess I’m kind of glad he’s gone, won’t have to go through the eviction process, but now what? He’s only two years into a five-year lease, and I don’t have any prospects. What is my next step?

A: First thing is to confirm he’s out, pick up the keys and change the locks. Document the condition the unit was left in by taking several pictures of the premises. If there is damage, take detailed pictures of the damage. You will need to provide an accounting of his security deposit within thirty days since it is commercial property. Now that you have possession of the premises, you have an obligation to mitigate your damages; that is, to attempt to relet to minimize the loss that you are sure to incur. Ensure that you maintain a log and document your actions in attempting to relet the premises. If you retain the services of a broker, ensure that he or she does the same. Your former tenant is responsible for the remaining term of the lease as well as any costs that you will incur in reletting the unit. These additional costs might include advertising fees, signage, broker’s commissions, tenant improvements for the replacement tenant, and the difference in rent for the remainder of the term in the event the replacement rent schedule is less than your existing rent schedule.

 

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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