Legal Corner

Riff-Raff, Late Rent, 3-day Quit


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 for more information and to sign up for our periodic newsletter.

Commercial, MultiFamily, Escrow


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 for more information and to sign up for our periodic newsletter.

Maintenance Logs & John Doe


Q: I can’t seem to keep my apartments maintained so they are not falling apart. I do the best I can by fixing most things myself or contract out some of the work. I feel like some of my tenants are sabotaging the apartments. I’ve replaced the smoke detectors in one of my rentals three times in the last year. I know something’s up—what do I do?

A: It’s more important now than ever before that you establish and follow an operations and maintenance plan when managing and maintaining your rentals. Not only is it just good business sense to maintain your rentals properly, but also the law mandates your prompt response to complaints of serious habitability defects. It is critical to identify tenants who engage in damaging and destructive conduct. Although the code specifically precludes a tenant from benefiting due to his inflicting damage to the apartment, often it is difficult to prove the tenant caused the habitability defect.

A good practice to enact is to create a maintenance log of repairs for each unit. Many owners will require a tenant to “sign off” when the repair is completed; other owners photograph the repaired item upon completion as proof of completion. These practices will support your claim that the “self-destructing” smoke alarm is being damaged by the tenant.

Several pieces of legislation have been enacted to crack down on the small minority of landlords who fail to properly maintain their buildings. Depending upon the severity of the defect, and providing that it is not tenant caused, a landlord may be cited by one of several governing agencies and given a period of time (ten to 35 days) to make the repairs. If the repair is not completed as required, there are provisions that would allow the governing agency to make the repair, and add the fees and costs of correction as a lien against the property. Additionally, legislation eliminates the tax benefits to the owner during the period of noncompliance, and in extreme circumstances, precludes an offending owner from demanding or accepting rent. Now more than ever before, it is critical that you document your repairs and identify the residents who are engaged in sabotage or other destructive conduct.

Q: I recently purchased a small apartment building near the beach from an older couple who had managed the building themselves for many years. Nice folks, but lousy bookkeepers. The rent roll I received in escrow appears accurate, but the names on the roll and the names of the tenants in their records don’t match. I think I’ve figured out who is where simply by talking with and asking the tenants directly, but there are two apartments with very uncooperative tenants. They refuse to give me their names or answer any questions at all. They just say, “Call my lawyer”. The first of the month came and went and everyone paid except these two units. What do I do? Can I evict if I don’t even know their names?

A: Sure. Since your rent roll is apparently accurate, and you know the terms of the agreement, you should immediately serve a three day notice to pay rent or surrender possession.

Simply list the names as John and Jane Does 1 through 10. The amount demanded would be the amount reflected in your rent roll as the rent due for that unit. When the rent is not forthcoming within the three days, then the eviction may be filed. Your attorney will simply name the defendants as “Doe” defendants. You will want to serve a “prejudgment claim of right to possession” notice along with the complaint to “flush out” any and all occupants and avoid the third party claim of right to possession (the old Arietta claim). The court will generally require a complete physical description of each “Doe” defendant judgment that is entered. Your attorney’s process server takes care of that for you. The eviction itself is no different than any other ordinary eviction. If you ever do learn of the tenants’ correct names, the judgment may be emended to replace the Doe name with the defendant’s true name, which will allow you to collect the money owed. Make sure you take a picture of the soon-to-be ex-tenants and keep it in your file. It will aid you in collecting from them when you learn their true identity.

Parking, Towing & Security Deposits


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

A: Your community rules and regulations should specify your parking rules, specifically stating that only one vehicle may be parked on the premises, and that all parking is assigned. Ensure that you have the proper signage at the entrances to the parking area. Most cities require the sign to contain certain restrictive parking language, plus the local police department tele phone number, and the California Vehicle Code section that provides for towing of unauthorized vehicles. Contact your local police department for their specific require ments, as they vary from city to city. Next if you know the offender, then provide a written warning of the violation. Attempt to serve it at his residence, post it on his door if he’s not in, and also put the warning on the windshield of his car. If practical, take and save a photograph of the warning on the vehicle’s windshield, because the offender will always claim that you did not give prior notice before towing. If he fails to remove the offending vehicle, the car maybe towed.

Q: I rented an apartment to four roommates quite a while ago. One of the four is now moving out, but the other three want to stay. The one moving out is demanding that I return his portion of the security deposit; he says that he paid it, so he should get it back. 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. Often, owners and residents will enter into an agreement replacing one resident with another, thereby removing the one original resident from the lease. The agreement will further provide that the “new” roommate pay the “old” roommate his portion of the security deposit. Absent a written agreement to the contrary, the owner should retain the entire security deposit, then when all the remaining roommates vacate, the refund check should be made payable to all four of the original roommates named in the rental agreement.

Tenant Info, Rent Increase, Sublets


Q: I’ve owned my buildings for several years and many of my residents are long-term tenants. I don’t seem to have any current contact information for most of my residents. The applications in the files are way out of date, and many files don’t contain any at all. Even the applications that are in the files have old and outdated telephone numbers. Do I have the right to request this information?

A: Of course. It is a good management practice to maintain current information on all of your residents. Put in the original lease that information has to be updated yearly. Prudent landlords will update the resident’s file annually with current telephone numbers, employment informa tion, vehicle license plates, email and emergency contact persons and phone num bers. Current telephone numbers should include home, work and cell numbers. Rather than asking your residents to complete a new application, the better method is to prepare a resident information form requesting this information, and ask the resident to fill in the blanks. Of course, it is also a good practice to photocopy rent checks as they are tendered to you. Most residents will not object to providing this information to you and will gladly complete your form. This simple exercise will identify the cooperative residents and those residents who are not. Although California law does not require that the resident provide the requested information, it does not prohibit your asking.

Q: I just sent out my annual rent increases to all of my residents. Because times are tough, I delayed sending them out and I kept the increases minimal. Well, I just got home, checked my messages, and got an earful from one of my more “vocal” residents. She claims that I was retaliating against her, and that the rent increase notice was not valid. She says that she won’t pay it and that I violated the law by even giving it to her. Something about her deducting $6.50 from her rent three or four months ago for a leaky faucet. I remember that she shorted the rent, but I didn’t really mind because she took care of the dripping faucet herself. What does this mean? What is “retaliation?” Did I do something illegal by serving my annual rent increase notice?

A: No. Although there are protections in place for certain tenant conduct, your resident is confused. A landlord cannot punish a tenant for exercising a “legal right.” The law offers tenants certain pro tections from retaliatory evictions and retaliatory acts. California law will infer or “presume” that a landlord has a retaliatory motive if he seeks to evict the tenant or take other retaliatory action within six months after the tenant has exercised cer tain protected rights including: using the repair and deduct remedy; complaining about the condition of the unit to a public agency after giving the landlord notice; or after filing a lawsuit based upon the condition of the unit.

The tenant must prove that she exercised one of these rights in the past six months and that her rent is current. The landlord may counter or “rebut” the tenant’s claims of retaliatory conduct by establishing that he did not have a retaliatory motive. If the landlord’s actions were based on a valid reason and not in response to the tenant’s exercise of a protected right, then a court would find that the landlord did not retaliate. If your annual rent increase was consistent with past practices, didn’t solely target this individual tenant, was based upon objective business reasons, and was not meant to “punish” this resident, then your rent increase would most likely not be deemed retaliatory. It is a good practice/policy to serve rent increases regularly taking into consideration the market. For example, under-market residents should be served first.

Q: My rental agreement states that the resident cannot sublet the apartment or assign the lease. I’m not sure I know the difference, can you explain? And why is that provision even there?

A: Often times a tenant wants to move in a roommate during the term of the lease or may wish to replace a recently departed roommate. When a resident wants to remain in the unit and allow another to reside with him, he wishes to “sublet” a portion of the unit to a third party.

When the resident gets a job transfer and wishes to move out, but wants to transfer the tenancy rights to another, he wishes to “assign” the lease to another. It is important that landlords know who their residents are and that proper screening techniques are utilized to ensure only qualified persons reside in the unit. That is why rental agreements prohibit residents from subletting or assigning the tenancy without the landlord’s prior written consent.

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, has successfully handled over 235,000 landlord tenant matters throughout California, and has collected over $140,000,000.00 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 for more information.

Contact AACSC

Apartment Association,

California Southern Cities
333 W. Broadway St., Suite 101
Long Beach, CA 90802
(562) 426-8341

This e-mail address is being protected from spambots. You need JavaScript enabled to view it