This article was posted on Thursday, Nov 01, 2018

Question 1:  I missed the AOA seminar on the upcoming Costa Hawkins/Proposition 10 vote. Can you summarize what I missed?

Answer 1: Yes. In a nutshell, the Costa-Hawkins Rental Housing Act law was passed in 1995, and was designed to do three primary things. First, it eliminated what is known as “vacancy control, “which is a form of rent control practiced most notoriously in Berkeley, and which allowed the rent control board to set the rent on a unit which had been voluntarily vacated by the prior tenants. This sort of administrative control over income property was too much for the California legislature and was generally considered the incentive for the Costa Hawkins legislation.

However, while they were at it, the authors wrote, and the legislative bodies passed, additional provisions related to local rent control. First, to assist landlords in getting out of what was known as the “revolving door tenancy, “the act provided that when the ‘last original tenant’ who was in occupancy pursuant to the original rental agreement vacated, any remaining occupants could be considered new tenants for purposes of the local rent control laws, and the landlord would be able to set the rent for those remaining occupants at market rate. There are exceptions and ‘traps for the unwary’ every lessor needs to be aware of, but generally that provision has done a great deal of good for many property owners.

The final principal provision of the Act exempted any building built after 1995 from any form of local rent control, and also exempted single-family homes and condominiums from local rent control. Note that there remain exceptions to the exemptions, and should you find you may qualify for such, you may want to review the exceptions to see if they apply.

The seminar was also designed to not only raise awareness of the provisions of Costa Hawkins, but also to share with AOA members the urgency which property owners should feel regarding voting on that particular measure. A “no” vote would preserve the Costa Hawkins law as it is today. A “yes” vote is a vote to repeal the law, which would allow local rent control agencies to again assert control over those now unregulated rental units.

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Question 2: Is there any requirement to deposit tenant rent checks within a certain time frame? We deposit our tenants’ rent checks at our earliest convenience.  But we are older and sometimes we have health issues or we are out of town. But recently when we deposited the tenant’s check around mid-month, we got notice from the bank on the 26th that the check bounced.  It was redeposited at the tenant’s request on August 1st but bounced again on August 3rd.  I think this is his problem not ours. But do you agree?

Answer 2: While some rent control cities (e.g. San Francisco) have provisions that deem a deposit of the tenant’s rent check more than 30 days after receipt to be ‘tenant harassment,’ there is no general landlord tenant law on when the rent check must be deposited. Certainly there would be no legal issue with a deposit roughly two weeks after receipt of the check.

It is the tenant’s obligation to make sure there are sufficient funds to cover written checks, regardless of when the check is presented to his or her bank for cashing. The bank itself may decline to cash a check after a certain amount of delay (the general rule is 180 days according to one report), and some cashier’s checks have the ‘expiration’ date printed on the check) (e.g. this check is invalid 90 days after issuance). However, absent the expiration of the check,  the tenant is subject to a three day notice to pay or quit if he or she has not paid the rent in one form or another when due.

Question 3:  If a tenant does not fulfill the entire lease period of one year, what recourse do I have to recover the balance on the rent payments through the lease period? Would a lawsuit be necessary? Can I put into the lease agreement that I would be entitled to the balance of the rental payments, up until I rented it to someone else, plus a $500 penalty for my time and efforts to find a new tenant? Thank you in advance for your answer.

Answer 3:  The tenants are obligated to pay the rent for the entire lease term, and if they breach the lease you are obligated to try to ‘mitigate’ their damages. This means you need to take ‘reasonable’ efforts to re-rent the unit as soon as possible for as much rent as possible, to lessen the amount the breaching tenants will ultimately owe.

At minimum, you are probably allowed to wait until the tenants vacate before deciding what work you need to do to the unit to get it ready for a new tenant. There may be an obligation to try to get new tenants ready to move in as soon as the unit is ready, by marketing the unit even while the current tenants are in place (you would let prospective tenants know exactly what is happening in terms of the existing tenants’ intention to vacate, and your need to determine how long it will take to get the unit ready).

As to charging a fixed amount for your troubles, that falls under the concept of ‘liquidated damages,’ a discussion of which is beyond the scope of this Q&A forum. But you can try your approach, and it may ‘fly,’ or at worst a judge would invalidate it and make you ‘prove your damages,’ i.e. your actual time and costs incurred due to the tenants’ breach of the lease.

Question 4: I’m the plaintiff in an unlawful detainer action that went to trial. I defaulted the un-named defendants before trial. The judge gave me a judgment for possession. I’ve filled the writ of possession form and have taken it to the sheriff for service of process. My question is this: if the plaintiff files a motion to set aside the judgment how do I contest the motion. I’m not asking for advice rather I’m asking which forms I use and what the rules are. Can you help?

Answer 4: Congratulations on getting to a judgment– not easy! As to opposing a motion to set aside default, there are no judicial council forms to use.  Instead, you would file written opposition on ‘pleading’ paper, and the content would be based on the nature of the motion. As for the rules, the court may have a self-help website that would provide some guidance, but the main rule to be aware of is the amount of time you have to file a written response once the tenant files his or her motion. Typically it is nine ‘court days’ before the hearing, but it can vary. It is not uncommon for tenants in UD cases to be able to get a hearing on 24 hours’ notice to the landlord, under what are called the ‘ex parte hearing’ rules, so you need to read carefully any papers you are served by the tenant. Ultimately it may be worth getting professional advice to preserve that very valuable judgment you were able to get.

Question 5:  I have a triplex in Vallejo, CA. Am I required to provide windows screens on the windows?

Answer 5:       I am not aware of any state law requirement regarding window screens. However, you may want to check your city’s building code in case there is a local screen requirement.

Question 6: I have personally served a 60-day Notice to Move Out (via a letter) on August 31, 2018 to my tenants of 14 years. I want to take back my single family home for my daughter and grandchildren. What happens if the tenants do not want to move by the end of October? They have indicated that they didn’t want to move until January 31, 2019 to which I responded that it is not acceptable and they must move out before November 1, 2018.

Answer 6: Assuming your notice was properly worded and properly served, the tenants are obligated to vacate when it expires, and to pay the rent until that expiration date. If they do not vacate, they may be evicted by the unlawful detainer (UD) process, which starts with the filing and service of the UD lawsuit. Despite their stated position, I hope you are able to negotiate with them and avoid that UD litigation for both sides’ sake. But if you need to move in before their preferred move out date, and they refuse to adjust their timing, you may have no choice but to pursue the UD option.

 Question 7: One of my Hayward tenants is using the property’s common areas as storage for his tools and items that he is dismantling to sell at the recycling center. This behavior is upsetting other tenants and creating a liability issue for me. The tenant is challenging me and at points being aggressive when asked to clear the common. Please advise if this situation creates sufficient reason for eviction and how long would the process take?

Answer 7: Assuming your lease does not have a specific provision prohibiting the conduct you describe, the conduct could rise to the level of a ‘nuisance’ eviction. If your lease so provides, then under the Hayward Residential Rent Stabilization Ordinance, copied below, you would be able to serve a notice to cease the prohibited conduct, which is generally easier than trying to establish the more subjective elements of a ‘nuisance’ eviction notice. The two competing provisions are set forth below for your reference.

If your lease is month to month and does not contain such a provision, you may be able to serve the tenant with a ‘Notice of Change of Terms of Tenancy’ to specifically prohibit “using the property common areas as storage for his tools and items and dismantling to sell at the recycling center.” Once that change takes place, continued use by the tenant will be a lease violation, and subject the tenant to a notice to cure or quit, and eviction if he fails to do so.

As to how long the process might take, there are variables that can easily result in a judgment in your favor (default) shortly after the UD is filed and personally served (best case, 2-4 weeks from filing to possession by the Sheriff’s Writ). However, there are other common scenarios where you may take 2-3 months to get to trial and, if successful, judgment.

CITY OF HAYWARD RESIDENTIAL RENT STABILIZATION ORDINANCE – No. 16-19, Section 19 (2) “The tenant has continued, after written notice to cease, to substantially violate any of the material terms of the rental agreement, except the obligation to surrender possession on proper notice as required by law, and provided that such terms are reasonable and legal and have been accepted in writing by the tenant or made part of the rental agreement. (5) The tenant has continued, following written notice to cease, to be so disorderly as to destroy the peace and quiet of other tenants or occupants of the premises.

 Question 8: I have recently increased rent and the tenant has threatened with mold issues and lack of repairs completed at the property. I have been there multiple times and worked with the tenant. I purchased a humidity meter to place in the unit that proved the humidity level in their unit was very high – this is a radiant heat unit and they tend to keep all windows/doors closed in the winter. We tried multiple arrangements and after many months they seemed to be happy and were quiet for almost two years. Recently, they complained about a leaking toilet, which I had repaired in less than 72 hours. The floors in the bathroom do need to be replaced and I agreed to do so. I offered them the option to have me send someone into do it or for them to arrange a suitable time with a local floor store to come by at their convenience to give a quote. They have never followed through with this so I did not pursue it further.

They claim I did not give them sufficient notice for the rent increase even though it was hand delivered 35 days prior to the effective date and they are currently on a month to month lease.

I do not want to continue to rent my unit to them as there will be, undoubtedly, other issues in the future. From what I can see I only need to provide them with a 60 notice to vacate the property if I do not wish to renew a lease with them. Is this correct? Do I have to provide any other reason or can I just terminate the agreement?
Answer 8: Given the history of tenant complaints, it is understandable that you would want to start fresh with new tenants. However, while you have the right to terminate the non-rent-controlled month to month tenancy on 60 days’ notice, the tenants may raise the defense of ‘retaliation’ to your notice of termination. California law -Civil Code Section 1942.5 – provides that “it is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because he or she has…lawfully and peaceably exercised any rights under the law.”

Just because the tenants have made complaints etc. does not mean you may not terminate the tenancy. But if you do so, you may be required to provide a non-retaliatory explanation, such as a failure to maintain the property, or a habit of late rent payments etc. As Civil Code 1942.5 further states: a lessor may recover possession of a dwelling…if the notice of termination, rent increase, or other act…states the ground upon which the lessor, in good faith, seeks to recover possession, increase rent, or do any of the other acts described in subdivision (a) or (d). If the statement is controverted, the lessor shall establish its truth at the trial or other hearing.

Question 9: I have a tenant that has agreed to move out by 11/1/18. They are behind a month in rent and we just want them gone. I tried to text them today to see if they were going to be out by 11/1. I received a text back that my number has been blocked by them. My question is this – on the 1st of November can I post a 24hr notice of intent to enter on 11/2/18 to see if they are gone.

Answer 9: It is too bad the lines of communication have been shut down, since it would be so easy to confirm their move-out if they would just send a text confirming it. But if they insist on no contact, then the concept of a 24 Notice of Intent to Enter (for permitted purposes such as to show the unit to prospective agents or contractors) is probably reasonable, as long as it complies with Civil Code Section 1954 (can only enter for specified purposes). You may want to bring a rental agent or contractor along in legitimate preparation for preparing the unit for the next tenants, in terms of establishing its condition and rental value.

 Question 10: A tenant moved in five months ago to an upstairs apartment. She drives a big truck that often causes a problem to other tenants and sometimes interferes with trash pick-up.  Now she is asking for me to provide her an ADA compliant parking space. I am not aware of her disability. My property is an 8 unit building with 8 carports. It was built in 1959. I don’t have extra space to provide her an ADA compliant parking space. What do I need to do?

Answer 10: Generally, if a tenant with a disability requests a ‘reasonable accommodation’ to the owner’s practices or policies, and provides evidence of the disability and the connection (nexus) between it (the disability) and the request, the owner has a duty to evaluate the request and if it is ‘reasonable’ to grant it. Whether she meets the basic requirements (providing evidence of the disability and the connection to it and her requested accommodation (handicap parking) or whether after considering her request may be rejected would require a closer analysis by someone familiar with those rules.

Richard Beckman, of Beckman Feller & Chang P.C., has been practicing landlord-tenant law for over 26 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 415-871-0070; email [email protected] or by visiting the website