Category: TSL Legal Posts

The Law Offices of Ted Smith continues its diligence as a watchdog on legislative bills, both good and bad, as they come before the legislature. In the last Landlords & The Law, we forewarned of three pending bills that would greatly impact the eviction process and other relevant issues of landlord/tenant law. We are happy to report that each of the following bills went down to defeat, and justifiably so.

-The “just cause” bill would have made eviction requirements across the state more difficult and costly to evict the tenants. AB 2925 would require rental owners, statewide, to list a “cause” for a reason when deciding termination of tenancy.  It would not matter how long the tenant was in possession.

-The second eviction-related bill that, as originally written, would have expanded the notice requirements for removing tenants under the Ellis Act, also died on the Assembly floor.

-The third eviction-related bill (originally drafted to prolong the eviction process) was amended to simply provide minor amendments to the service of the eviction summons, rendering it of minimum concern to landlords in California. AB 2343 advanced from the Assembly to the Senate only after the author, David Chiu, D-San Francisco, overhauled the bill.  This bill would have added, to an already lengthy eviction process, the ability for the tenants to pay rent in the middle of the month.  The rental law, as you know, provides that you can serve a Three Day Notice any time you want to so long as it is after the due date of the rent.  Many times on the 5^th, 6^th, or 7^th, not the 15^th.  All of these provisions were deleted from the bill.  So that’s good news for landlords in San Diego County.

Between Showing the Unit and Leasing

The legal rights and responsibilities between owner and prospective resident should be clarified between the time of the rental application’s approval and signing the lease. If the applicant gives a deposit and is approved but then refuses to rent the apartment, the owner wants to keep the deposit.  We’ve developed an offer to rent agreement that is designed to cover most situations and give the owner the right to retain the proper measure of damages by virtue of the prospective resident’s refusal to rent the apartment.  Although we believe it to be a very good form for most purposes, remember that your facts may differ, so it should not be seen as the ultimate agreement for every situation.  Please contact our office for a PDF or Word document of this form.

Getting tenants to pay their last month’s rent can be difficult-especially when the security deposit is equal to one month’s rent. Tenants tell the manager “just keep my security deposit instead.”  But if you’re stuck applying the security deposit to last month’s rent, you have nothing left over to cover apartment damages and cleaning that would ordinarily come out of the security deposit.

You could file an unlawful detainer against the tenants to collect the last month’s rent, but that is time consuming and the tenants could vacate prior to a judgment. You’re better off getting them to pay up in the first place.

Many tenants genuinely believe that the security deposit is the same as last month’s rent and find nothing wrong with substituting one for the other. To educate tenants, make it clear from the onset that the security deposit is not rent, that it will not be applied to rent, and the tenant must pay full monthly rent on or before the first day of each month, including the last month of the lease term.

Civil Code § 1950.5 makes it clear that the security deposit is not rent. Even though the security deposit may later be used to cure defaults in rent, it may not be used by the tenant as rent before they move out.  But, you must make your tenants understand this rule.  To help out, don’t make the security deposit exactly one month’s rent.

Review your security deposit policy with tenants before they move out. Upon receipt of a thirty day notice, a conference should be held with a tenant advising them about the security deposit and move-out procedures.  A letter that reminds the tenants of your policy is a good idea.

If you are certain the tenant will vacate the premises as promised and leave the apartment in good condition, you could always agree to let them apply the security deposit against the final month. But there are no guarantees.  That’s why we recommend against this.  Among other things, it might be difficult to find the ex-tenants to serve them with a small claims once they vacate.  For tenants who refuse to cooperate, a three day notice may be served and unlawful detainer filed.  By following the above steps, you can minimize the problem of tenants using the security deposit as last month’s rent.

The San Diego County Sheriff has set up new rules for conducting tenant lock-outs at the end of the Court eviction case. This is bad news for landlords, who are already experiencing Court delays in overall unlawful detainer process.

Once the Court has entered the judgment in your favor, the Court sends the paperwork to the Sheriff to kick the tenants out. Called a Writ, it is a five day notice to vacate.  For many years, the Sheriff’s policy is that the Sheriff mails to our law office written notice of the lock-out date, but not the time of day of the actual lock-out.  Then, the day before the date stated in the mailed notice, the Sheriff’s office places a phone call to you or your agent at the phone number you have given us, stating the exact time of the lock-out.  We have come to rely on this.  It has always been the very next day at the time given.

All that is changed. Under the new rules, the lock-out date notice that is sent to us by the Sheriff is now called a “tentative” notice.  This means the date is an estimate; the lock-out will be no earlier than this “tentative” date, and might be later.  How much later?  Time will tell.  Maybe one, two, or three days later.

Not so bad, but the Sheriff also warns that you better not miss the phone call that gives you the actual time of the lock-out. If you do miss the phone call, there will be no eviction, so start your case over.  What’s worse, you may have to stay by the phone for more than one day waiting for the Sheriff to call to give you a definite date and time.  And that applies to the locksmith or your maintenance technician as well.  Don’t forget that you’re expected to have access to the unit with either master keys, or a locksmith to quickly change the locks in the Sheriff’s presence.

Any questions? Please don’t hesitate to call our office, we look forward to hearing from you.

Marijuana

Recreational use: Provisions of Proposition 64 regarding the lawful sale and subsequent taxation of recreational marijuana in California are in effect. Legalizing the sale of marijuana for recreational use, however, does not impede a property owner’s ability to ban the smoking of marijuana on the property. In fact, the proposition expressly allows owners of private property to prohibit any of the actions related to marijuana otherwise permitted by the initiative. Note that this new law for recreational use of marijuana does not repeal or otherwise affect the already in force medicinal marijuana law. Those tenants with a medical prescription by a licensed doctor, are still permitted to buy and smoke medicinal marijuana for medical purposes. Please feel free to call the office for the interplay between tenants smoking recreation marijuana at the rental property and those that are smoking it for personal use under the medicinal marijuana exception.

Pending Fair Housing Laws…

Fair Employment and Housing Council is currently working on two sets of fair housing regulations which will likely be finalized and take effect:

• Harassment, Retaliation, Reasonable Accommodation, and  Assistance Animals
• Discriminatory Effect, Discriminatory Land Use Practices, and Use of Criminal History Information:

Use of Criminal History Information

• Prohibits consideration of criminal history information that did not result in conviction, or which has been sealed or expunged
• Allows use of narrowly tailored “bright line” criminal history policy (i.e. no individualized assessment), but the policy must be very narrowly tailored

Reasonable Accommodation and Assistance Animals

• Allows reasonable accommodation verification to be provided in a “credible statement” from the individual or family members
• No Verification may be required of a person with an alleged service animal, only two questions are permitted:

1)  Are you a person with a disability?

2)  What is the disability-related task the animal has been trained to perform?

What’s to Defend?

The Deal with Contested Evictions.

More and more tenants are becoming adept at maneuvering the legal system. One sure way to delay the eviction process is to file a response.  The court doesn’t require the tenants to say why they are answering, only that the minimum written reply be filed with the court within the time period allowed by law.  Filing this response does not mean the tenant wins the case.  But, the law states that the tenant is entitled to due process, so he or she will get their day in court.

We’ve taken a look at about 1,000 recent contested eviction cases at our office to find out the most commonly stated defenses contained in a tenant’s answer to the complaint for unlawful detainer. In our survey, if there was more than one defense stated in the answer, we’ve put it in the one category that represents the main defense stated by the tenant.

Habitability

Breach of the warranty of habitability is the most frequently used and yet least successful defense stated. It seems that tenants are suddenly finding defects in the premises when the rent is due and unpaid.  In fairness, breach of the warranty of habitability is a good defense where the premises are substantially lacking in basic services.  However, even in these cases, we have to ask, if it’s that bad, why don’t you just move out?  Still, the owner needs to keep the rented premises in habitable condition.  It is a good practice to respond in a timely fashion to all legitimate repair requests.  In so doing, the tenant will not be able to rely at all on the defense that the premises were uninhabitable.

No Defense Stated

The next most frequently filed answer is one that contains no stated defense at all! A bare-bones answer says nothing.  Frequently, the tenant will admit all the allegations in the complaint and really has nothing left to say at trial.  This is particularly frustrating since it is obvious the answer was filed solely as a delaying tactic.  Yet, the clerks of the court are required to accept a “blank” answer, even though there are no defenses stated.

Defective Notice

A tenant will sometimes raise the fact that the notice overstates the rent or includes late charges or NSF charges. Perhaps it states the wrong period for which rent is due.  Care must be taken to make sure the notice accurately states the amount of rent due and is served correctly.  This category includes tenants who declare on their answer that they were never served with the notice.  Make sure to comply with service requirements on all notices.

Waiver of Notice

Sometimes the tenant will claim in their unlawful detainer answer that the owner waived the notice-usually a three day notice to pay rent or quit. The tenant will claim the owner verbally agreed to extend the payment date and then breached this verbal agreement by filing the unlawful detainer as soon as the three day notice expired.  Don’t say anything that would go against the effect of a three day notice.  Avoid making comments like, “This is just a formality” and “Don’t worry about it.”

Retaliatory Eviction

This defense is used to try to defeat a thirty day notice. The landlord has the right to give a thirty day notice for no reason, and yet, tenants like to accuse the landlord of acting vindictively based on the exercise of a right.  In several issues of our newsletter LANDLORDS AND THE LAW, we have addressed the issue of retaliatory evictions in detail.  Tenants are rarely successful in this defense because the landlord will indeed have good faith business reasons that are not retaliatory in order to support a thirty day notice.

Discrimination

The discrimination defense comes in a variety of forms. The tenant may be basing it on the traditional categories that are protected: race, creed, national origin, marital, or familial status.  It is important to remember never to terminate tenancies based on these protected classifications.  On the other hand, all tenants must comply with the rules and regulations of the complex—and everyone must pay rent on time.

Other

After all else fails, we see tenants asking for leeway from the court based on hardship, saying they are financially strapped and cannot vacate the premises. For example, answers will say Defendants were robbed, their welfare got cut off, or they simply don’t have the money and lost their job.  None of these are legal defenses and the court will not recognize them.  Yet the tenant may believe that somehow justice will prevail and they will be entitled to extended free housing based on their financial condition.  They find out otherwise when the matter come to trial.  As you can see, if your tenants are street smart and know a little about landlord/tenant law, they can easily string you out by filing an answer with the court, even though they eventually lose.  Without a doubt, the biggest gripe about the unlawful detainer process is that it takes too long.  Even though it’s one of the fastest legal proceedings available in California, it never seems fast enough, especially when your non-paying tenants are “getting deeper into your pocket” as each day goes by.  One of the most common questions we receive is, “Isn’t there a faster way to evict a tenant?” Unfortunately, the answer is, “No.”

A tenant will file an answer with no merit and eventually lose at trial, so contesting evictions simply delay the inevitable. Fortunately, there are some specific things you can do to speed things up. The best way to avoid excessive delays is to make sure you do everything right the first time.  Here are a few suggestions:

• When preparing the notice, make sure it’s filled out correctly. Any defect will cause a cancellation of the case.
• Be sure you individually serve everyone listed in the notice (i.e. if both husband and wife are listed on the notice, don’t try to take a shortcut by serving the husband only—serve them both)
• Make sure the process server has all available information about where and when to serve the summons and complaint. Remember, your tenants have five days to responds but the clock doesn’t start ticking until your tenants are properly served.
• If there are extra unknown occupants or substantial traffic in and out, consider serving a pre-judgment claim of right to possession so you will avoid a third party claim of right to possession by a so-called roommate.

Storing an abundance of personal property in the rental unit is not uncommon, but we strongly suggest that our clients not describe these occurrences as “hoarding”.  Please be advised as follows:

The American Psychiatric Association states that hoarding is now categorized as a mental health disorder.   It is now a disability to be a hoarder, and is considered to be caused by a mental impairment.  This impairment is supported as something that greatly limits at least one or more of a person’s major life activities.

What impact does this have on landlords and property owners?  Be careful with your words.  Drop “hoarder” from your property management vocabulary.  That’s because hoarders are protected under the federal Fair Housing Act.

When considering a case for eviction based on these types of situations, there are other, non-discriminatory ways to describe the conduct legally.

Lease violations include:

• Direct damage to the property
• Possible blockage of emergency exits
• Interference with sprinkler or ventilation systems
• Storage of potentially explosive or flammable materials
• Accumulating perishable items in a manner that could attract rodents or   induce mold
• Inability for the management companies maintenance technicians and/or other vendors from gaining reasonable access to the premises for repairs or other matters

The tenant’s unlawful storage of excessive personal property in the rental unit is akin to the tenant’s failure to maintain the unit in a clean and sanitary condition.  Both are independent but related lease violations.

If you have something like this occurring in one of your units, please call or email us!  Attorney Ted Smith will walk you through any situation.  Ted has been proudly serving San Diego county landlords for more than 35 years.

All too often, our clients see more and more individuals attempting to move into their complex with a “companion animal” (i.e. Rosie, the 100 lb Pit Bull).

If you ever come across this situation, please call our office to explain the specifics of the matter and we can assist you in the best way to legally address the issue.  We also have all of the necessary forms should you choose to allow the potential tenant and their companion animal to move in.

Note:  In all cases, required verification of the companion animal is necessary before the tenant moves in.  The tenant asserts that he or she is disabled as defined by the California Fair Employment and Housing Act.*

The tenant confirms that the requested companion animal accommodation is related to the tenant’s disability and is necessary to allow the tenant full use/enjoyment of the premises.  The tenant understands that he or she is required to provide written verification from a health care provider or other credible third party who can competently verify the tenant’s disability and disability-related need for the companion animal.

[*The California Fair Employment and Housing Act Definition of Disability. Government Code Sections 12955.3 & 12926

“Disability” includes, but is not limited to, any physical or mental disability as defined below.

“Mental Disability” includes but is not limited to, all of the following:

1)    Having any mental or psychological disorder or condition, such as intellectual disability, organic brain syndrome, emotional or mental illness, or specific learning disabilities that limits major life activity.  For purposes of this section:

A)   “Limits” shall be determined without regard to mitigating measures, such as medications, assistive devices, or reasonable accommodation, unless the mitigating itself limits a major life activity.

B)   A mental or psychological disorder or condition limits a major life activity if it makes the achievement of the major life activity difficult.

C)   “Major life activities” shall be broadly construed and shall include physical, mental, and social activities and working.

2)    Any other mental or psychological disorder or condition not described in paragraph (1) that requires special education or related services.]

A hot topic that has been presented to our office by a variety of clients is…Bed Bugs!  We call them the flea’s hitchhiking cousin.

Legislation AB 551:

Civil Code 1942.5:   Amended.  Prohibits landlords and property owners from retaliation against a tenant who has given notice of a possible bed bug infestation.

Civil Code 1954.602:   Prohibits landlords/property owners from renting, leasing, or even showing a unit that is believed to have bed bugs.  This code does not require the landlord or property owner to actively inspect for bed bugs.  However, if a bed bug infestation is obvious, this code states that the landlord or property owner then is considered to have knowledge of bed bugs in the rental unit.

Civil Code 1954.603:   Requires a bed bug notice to be given to any and all new tenants on or after July 1, 2017 and to all existing tenants by January 1, 2018.

Civil Code 1954.604:  Deals with entry into a unit to inspect and/or treat for bed bugs.  Landlords and property owners are required to give this notice of intent to enter (Please contact our office if you need the form).  Tenants are then required to cooperate with these entry and inspection requests.  Tenants must provide any information that is requested by the landlord/property owner in order to facilitate the detection and treatment of bed bugs.

Civil Code 1954.605:   When a unit is occupied that has undergone bed bug inspection, this Code requires landlords/property owners to notify tenants within two business days after receiving certified results from a pest control specialist.  If the infestation occurs in the common areas, notice must be given to all tenants.