Q: My tenant filed a code compliance complaint with the city and did not notify me of the issues he complained of prior to filing the complaint. I am frustrated because I subsequently received code violation notices from the city and was not given an opportunity to address the violations. I am worried the tenant might do this again, so I want to give him a notice to quit. Can I do that?
A: No. You should not serve the tenant with a notice to quit because it may be viewed as a retaliatory act. Your tenant has the right to complain to you or to an appropriate governmental agency about the condition of his rental unit. In fact, the law will protect your tenant if he files a complaint with a government agency without first notifying you. Legally, your tenant was within his rights. If you serve him with a notice to quit right after he complains to the city for the code violations, he would have a strong argument that you are only serving him with the notice to quit because he complained to the city about the rental unit. If you are worried the tenant might complain to the city again without informing you, it would be good to go speak to the tenant and let him know that he can always come to you with complaints, and that you will do your best to address them as soon as possible. Make sure that you specify how you want to receive any requests for repairs. By specifying this you will eliminate any confusion that the tenant may have regarding how you wish to be notified.
Q. My tenant complained three months ago that there were cockroaches in his rental unit. I reluctantly called an exterminator because I knew the cockroaches came into the unit because of the constant mess left by the tenant. I served the tenant with a termination notice today; can he claim I am retaliating against him because he complained about the cockroaches?
A. Yes. If the notice is served within 180 days of the habitability complaint, then there is a legal presumption that your actions are retaliatory. In other words, if you attempt to terminate the tenancy less than six months after the tenant complained about the cockroaches, there is a legal presumption that you are only ending the tenancy because the tenant complained about the cockroaches. However, if you wait at least six months before you terminate the tenancy that legal presumption no longer arises automatically. The tenant can still claim you are retaliating, but it would be much harder to prove in court than if you had served him with a termination notice three months after he complained. Please remember that your tenant has a legal right to complain to you about habitability issues such as cockroaches, and you should try to address them. If you know the tenant is causing the issues try to remind him of his duties under the rental agreement to keep the unit clean, and then address the issues as is reasonable.
Q. My tenant is two months behind on his rent. I served him with a three day notice to pay rent or quit. He has not complied with the notice and is now claiming his unit has issues I was not made aware of such as mold. Can he claim that I served him with the notice to pay rent or quit in retaliation?
A. No. If you attempt to evict a tenant based on nonpayment of rent, retaliatory eviction is not a defense to the tenant’s failure to pay the rent. In this situation, the tenant failed to perform his duty under your rental agreement, that is, to pay his rent. You are evicting him because he did not pay, not because he complained about the unit after you started the eviction process. However, you should still address his complaints if they are valid as you still have a duty to him as a tenant, even while you are evicting him.
Q. I have a tenant that just moved in and has been asking for accommodations because she claims she is disabled. I do not think her requests are reasonable. Can I serve her with a notice so she can move somewhere that has the accommodations so I don’t have to spend money or damage my unit?
A. Before you serve her with a notice to quit you should work with her first to see if an accommodation is possible. A landlord must allow a tenant with a disability to make reasonable modifications to the rental unit to the extent that it is necessary to allow the tenant full enjoyment of the premises. If the tenant decides to undertake these modifications to your unit she must pay for them. You may also require the tenant to restore the rental unit to its original condition as long as this agreement is in writing and made at the time the modifications are agreed to. You may not request an additional security deposit but you may agree that the tenant pay a reasonable estimate of the restoration cost in an escrow account.
Further, if you receive an accommodation request you are obligated to engage in an interactive process to determine whether the accommodation is necessary to afford the tenant with an equal opportunity to use and enjoy the property. If after engaging in an interactive process with the tenant you determine that an accommodation is not feasible, or your attempt to accommodate fails, you have no further obligation to accommodate the tenant.
Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 20 years. He is also an adjunct law professor at the University of San Diego. Mr. Simone’s office is open Monday- Friday from 9:00 AM to 5:00 PM .- Tel: 619-235-6180, website: www.landlordslegalcenter.com or email [email protected]