This article was posted on Tuesday, Jan 01, 2019

Question 1: What is the maximum amount we can charge for application/screening fee for our applicants applying for rentals?
Answer 1:  The applicant screening fee can only cover the expenses you incur in the process. This includes the actual money spent gathering information (i.e. the fee charged by a service if one is used), as well as time spent by you or your staff. But no matter how much you pay for tenant screening, your fee to applicants may not exceed $49.12 for 2018, [however, this amount  could change for 2019.]

Question 2: I read somewhere that there’s a statute that says if the landlord does not provide the tenant with some information each year about the lease and the people that manage the property, the tenant does not have to pay the rent. Could this be true?

Answer 2:  Fortunately not – at least not if you are the owner/landlord who rented to the tenant. You are referring to Civil Code Section 1962, which requires that the property owner do the following: ‘Any owner of a residential dwelling structure, or a party signing a rental agreement or lease on behalf of the owner, shall do all of the following: (a) (1) Disclose therein the name, telephone number, and usual street address at which personal service may be effected of each person who is: (A) Authorized to manage the premises. (B) An owner of the premises (or a person who is authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for all notices and demands).  (2) Disclose therein the name, telephone number, and address of the person or entity to whom rent payments shall be made.”(3) Disclose therein the form or forms in which rent payments are to be made. (4) Provide a copy of the rental agreement or lease to the tenant within 15 days of its execution by the tenant. Once each calendar year thereafter, upon request by the tenant, the owner or owner’s agent shall provide an additional copy to the tenant within 15 days. If the owner or owner’s agent does not possess the rental agreement or lease or a copy of it, the owner or owner’s agent shall instead furnish the tenant with a written statement stating that fact and containing the information required by paragraphs (1), (2), and (3).(b) In the case of an oral rental agreement, the owner, or a person acting on behalf of the owner for the receipt of rent or otherwise, shall furnish the tenant, within 15 days of the agreement, with a written statement containing the information required by paragraphs (1), (2), and (3) of subdivision (a). Once each calendar year thereafter, upon request by the tenant, the owner or owner’s agent shall provide an additional copy of the statement to the tenant within 15 days.

Because there is a provision in that statute that provides a defense to a tenant who has not paid rent but who has not received the required disclosure information described above, it was thought amongst attorneys that this would be a secret weapon for a tenant who was behind in rent, since it appeared the defense would apply regardless of who the landlord or owner was. However, a recent case just clarified that the defense is only available to a tenant when there has been a ‘successor in interest’ to the landlord who rented to the tenant.

As the court stated: “Subdivision (c) provides, “The information required by this section shall be kept current and this section shall extend to and be enforceable against any successor owner or manager, who shall comply with this section within 15 days of succeeding the previous owner or manager. A successor owner or manager shall not serve a [3 Day Notice to Pay or Quit] or otherwise evict a tenant for nonpayment of rent that accrued during the period of noncompliance by a successor owner or manager with this subdivision. Nothing in this subdivision shall relieve the tenant of any liability for unpaid rent.”
So, what all that means, when the smoke clears, is that only the person or entity that buys (or otherwise takes over the property from the owner who rented to the tenant) will be subject to this defense. And as the last sentence in the statute makes clear, the tenant is not relieved of the obligation to pay rent, and as soon as the new owner serves the tenant with the required information, the new owner may proceed with serving a 3 Day Notice to Pay or Quit for the amount due the new owner (and any amount owed to the prior owner if the prior owner has ‘assigned’ that debt to the new owner).

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Question 3: I would like to know what recourse does a landlord have and what forms should be given to a tenant who is in violation of their lease due to making alterations to the unit without prior written approval and attempting to repair broken items instead of notifying landlord.

Answer 3:  The tenant can be given a three day notice to cure the lease breach as to the alterations without prior consent. As to the attempted repairs, that is a slightly different concept.  A tenant should be permitted to use self-help as to minor problems that occur in the unit. As to bigger items (think repairing a roof leak, or replacing a defective stove), there is a generally a requirement that the tenant give the landlord notice of the problem – and a reasonable opportunity to fix the problem – before taking any ‘self-help’ efforts, However, circumstances can affect that, such as, for example, a leaking sink or backed up toilet … sometimes the tenant has no choice but to get a plumber out asap to limit the impact on the unit and the occupants. So, if you face that situation, exercise discretion and try to view the events from the tenant’s perspective, which may help eliminate an unnecessary legal confrontation.

Question 4: I have a Section 8 tenant on an annual lease (1st lease started 2/1/17) that expires 1/31/2019. I am not renewing the lease because we will be selling the property. I’ve given the tenant verbal notice on 11/26 and a 60-day Notice to Move Out written notice on 11/27. I’ve notified the Housing Authority of the non-renewal of the lease in writing, but have not been able to talk to anybody at the office (no return calls). The receptionist thinks it has to be a 90-day notice. The lease states a 60-day notice and I don’t find anything in the Section 8 documents that state 90 days. Is it a California or Federal law that requires 90 days?

Answer 4:  According to California law, when a landlord terminates or fails to renew a Section 8 contract, the tenants must be given 90 days’ written notice of the date of termination. The tenants are only obligated to pay their portion of the rent, as provided under the contract being terminated, for 90 days following receipt of the notice of termination or nonrenewal of the contract. Civil Code §1954.535. The § 1954.535 90-day notice requirement applies statewide in both rent control and non-rent control jurisdictions.

But it is crucial to note whether the unit is subject to local eviction controls, as what is deemed ‘good cause’ under the Section 8 contract is not always the same as that required under local eviction control laws. If the landlord terminates a Section 8 housing contract in order to sell the property (a ‘good cause’ under the Section 8 contract), the landlord may find himself stuck with tenants who cannot be evicted under the local law (because sale of the building is not ‘just cause’ under most if not all local ordinances), with the net (very unhappy) result that the owner has a tenant who is only obligated to pay their share of the rent under the Section 8 contract, but the landlord is no longer receiving the Housing Authority’s share since the landlord terminated the contract!  This is a situation to be avoided, of course, by careful evaluation prior to serving any notice to terminate a Section 8 contract.

Question 5:  I served our tenant with a notice to increase rent above 5% and it was submitted to the city of Alameda’s Rent Committee for review. We have a scheduled hearing for next week to see if the rent increase will be approved. In the meantime, my (the owner of the building) personal situation has changed and I need to move a close relative into the unit instead. I canceled the hearing and will serve the tenant with a notice to move out and abide by all of the city of Alameda’s lawful eviction rules. However, my question is: Can the tenant come after me (the owner) in any way (i.e. accuse me of retaliation) if I cancel the rent review hearing proceedings and proceed with a lawful eviction instead?

Answer 5:  A bonafide change in circumstances justifies a revision to your rent increase notice and decision to terminate the tenancy instead, and while a tenant can always claim retaliation for just about any landlord act that impacts the tenant, if the landlord’s explanation is consistent with the otherwise neutral facts, then no retaliation can be established.

Question 6:  Greetings. One of our units has suffered roof leaks on two occasions (March 2018 and November 2018) apparently due to gutter overflow issues. We have worked with the tenant to promptly attend to leaks and after the incidents no further leaks occurred. The roof was replaced in 2014 and so is relatively new. The tenant is now expressing worry about mold. We see no evidence of mold and do not think two exposures to water are likely to result in mold. Are there any legal issues that we should be aware of? If she pays to get a mold test and it is positive, what are our obligations? Thank you for your assistance.

Answer 6:  Even if there are no visible signs of mold, it is not unusual for a tenant who experienced a leak event to worry that mold might be growing behind the wall or ceiling. The appropriate steps a landlord might take in response will vary depend on the nature of the complaint. If the leak issue was resolved, and there are no obvious signs of mold, then you can reasonably assume the problem has been resolved. However, if there is any indication of mold, or to be proactive (rarely a bad thing), a test for mold, by you, would be appropriate, with following steps to depend on the test findings.

Question 7:  What is the length of time that a tenant has from departure to filing a claim for the return of security deposit? There was a letter sent to the tenant three weeks after his departure that eliminated his deposit return due to damages. His departure date was September 12, 2017. I received a small claims court order dated October 16, 2018. I requested an extension to January 17, 2019 and it has been continued to that date. Is his request beyond the statute of limitations on the dates involved??

Answer 7:  The tenant’s claim is timely, since a security deposit claim is based on both the rental agreement (2 years if oral and 4 if written) and statute (Civil Code 1950.5) While the statutory action might be barred since it includes a penalty provision, which is subject to a one year statute of limitations, I believe the judge would hear the matter under the contract theory, though any statutory penalty amount should be unavailable.

Question 8:  I have given a 60 day notice to my tenant that I will be increasing the rent by $200/month starting January 1st 2019. I have sent him the new rental agreement (the one from AOA) and have also asked him to let me know by December 1st 2018 if he is disagrees with the new terms (so I can look for a new tenant). He had expressed plans to not continue as a tenant with the price increase but did not confirm. What is concerning is that he has been very non-responsive and not letting me know what his plans are. He does not respond to my emails, phone or SMS. I live in another state and am managing this property remotely.

If the tenant does not respond to my new rental agreement document by December 1st for a rent increase by January 1st 2019 (30 day notice), what are my options to ensure I have clarity on whether he will pay the new rent?  I am concerned that he will not be responsive all the way till Jan 1st and I will be left with evicting him on Jan 1st because he is not paying me the new rent and I am then left with a vacant house.
Answer 8:  A notice of rent increase, if allowed by the local rent ordinance and properly served on the tenant, operates to change the rental terms whether the tenant responded or not. However, the tenant is not obligated to respond, and you may not know until the rent is tendered January 1 whether he will comply or not. If he does, fine. If he does not, then a three day notice to pay or quit would be appropriate, which may result in unlawful detainer proceedings and an evicted tenant. Similarly, if the new terms required an additional deposit, and that notice was also otherwise proper, the tenant’s failure to tender the increased deposit could be a matter for another three day notice, but to cure the breach by payment of the deposit within three days. Failure to comply with that notice could also result in unlawful detainer proceedings. Sometimes you are just left with a vacancy you could not avoid.

Question 9:  We are providing a bike shed for our Alameda rent-controlled tenants which will be locked and in the back of our property; we would like to give them some rules as well as protect ourselves from any liability from damage, loss, theft, etc. In California, is it illegal to add it as an addendum to the lease or do they have to agree first? What is the best way to word it and give it to them? We want them to cover their bikes with their renter’s insurance, and we don’t want to be liable for anything, even future replacement of the shed itself, except at our (landlord) own discretion.

Answer 9:  Even under Alameda’s rent control law, the owner can provide rules as to the housing services provided, such as rules for the use of the bike shed. This can be done by a simple notice to the tenants that provide them the rules. But, since the rules might be considered a lease addendum or change, it should probably be done in the form of a 30 day notice to change terms of tenancy. As to the renter’s insurance, you can not compel the tenant to have such insurance, even if the lease requires. The best you can do is make sure your own liability insurance is sufficient to cover claims related to the shed (which can always exist, by, for example, a lack of maintenance on the shed so it becomes hazardous, and causes an injury to a tenant using it). But as to whether you would have the ‘right’ to discontinue the shed use, or even its existence, that requires a more detailed review of the Alameda ordnance as to housing services, and whether the tenants paid rent that included use of or access to the shed.
Question 10:  If our rental agreement states that we accept pets but no larger than 20lbs and a current tenant gets an emotional support dog over that weight do we have to accept this pet? The tenant has lived here for about a year and just recently became disabled and now has a dog that will probably get as big as 65 lbs.
Answer 10: If a tenant compromises the safety of other tenants or their property, or if the animal poses a danger to other tenants, the tenant does not qualify under the emotional support animal statutes and the landlord does not have to allow the tenant’s animal or waive a “no pets” or pet size limits policy or provision. But absent evidence of the animal’s conduct that would be a threat to other tenants or management, the size of the animal would not be a basis to prohibit it if it otherwise qualifies as an emotional support animal.

Question 11: The boyfriend of one of my tenants has moved in with her. The original tenant wants to keep the lease only in her name. Is/are there any liability, issues, problems for owner/management if we allow him, the boyfriend, to not be on her lease? Thank you for any advice you can provide.

Answer 11:  There are potential issues associated any time a new person becomes an occupant of a rented unit, but as long as the property is well maintained, and you keep your insurance current (just in case), and if you have no objection to the boyfriend staying, but not as a member of the rental agreement, then it is difficult to foresee what problems he could raise for you as long as they get along and he behaves.

But I think it is your option to insist he be on the rental agreement if he’s going to be living there. But in her defense, she likely wants to be able to have him leave if it doesn’t work out, and having him on the lease as a cotenant would like eliminate that option. You could write an agreement that makes him an acknowledged subtenant who is responsible for honoring the terms of the rental agreement without making him a co-tenant.