This article was posted on Tuesday, Sep 01, 2015

Question 1:     Does Richmond have rent control now?
Answer 1: The Richmond City Council had been on course to approve the first rent control law in decades. As drafted, it would be substantially similar to the rent control ordinances in San Francisco, Berkeley and Oakland (each of which is similar but not identical to the other). In other words, there would be a rent increase limitation component, and ‘just cause for eviction’ component.

The Richmond ordinance was drafted by staff of the City Manager’s department, and was undergoing amendments and consideration of the amendments at press time. A “second reading” of the amended Ordinance was scheduled for a special Council meeting August 1, 2015, and it is likely the Ordinance was approved at that hearing. If so, it would still require two council votes to approve it, though it appears the members who favor rent control have the votes to pass the ordinance after a second reading. If so and as currently drafted, the law is scheduled to go into effect December 1st and would require the creation of a rent board, hiring of a housing director and informing renters and landlords.

Question 2:     My month-to-month tenant for the last four years gave me notice that he will move out in 31 days. How many days does the tenant have to provide the landlord of his move-out date? I thought it was 30 days, but if the tenant has been there more than a year, it was 60 days? Also, the tenant requested a walk-through of the unit before they vacate. Is this mandatory? If so, then what is the procedure for final inspection? We want to inspect when unit is empty of tenant furniture to assure possible damage to walls/flooring is not covered up by furniture.
Answer 2: The tenant is allowed to give 30 days’ notice, even if they have been there over a year. However, for tenancies over one year, the landlord must give 60 days’ notice if the landlord is terminating the tenancy, unless the landlord is selling a single family home or condominium to a buyer who will occupy the premises. See Civil Code Section 1946.1.

The ‘walk through’ procedure is contained in Civil Code Section 1950.5, which governs security deposits, and which I routinely  recommend that landlords read closely, particularly section (f) which details the pre-move-out inspection  procedure. It is important that the landlord follow the rule carefully to avoid any claim that might impact the right to apply the deposit to unpaid rent, cleaning or damages beyond normal wear and tear. You should also review section (g) carefully for the accounting and return of deposit rules. And while the tenant is entitled to the pre-move-out inspection, and its attendant opportunity to cure any noticeable issues, that does not mean the tenant is relieved of liability for damages that were not reasonably discoverable at the walk-through. The landlord is still entitled to claim the cost of cleaning or repairs in cases where he or she could not have found the problem while the tenants’ personal property was still in place. 

Question 3:    My long term tenant (over 20 years) notified me that PG&E said the furnace needs a new filter. Am I responsible for buying and installing furnace filters?
Answer 3:  Unless the tenant caused the filter to need to be replaced, maintaining the heating system would be the lessor’s duty.  The filter is part of a functioning heater system, which is always the landlord’s duty.

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Question 4: We are a property management company, and one of our landlords used a 5 day notice worded like a 3 Day notice. Is ‘3’ the magic number or will his 5 Day notice work when attached to a Complaint in a UD action?
Answer 4: Your question reminded me of that Monty Python discussion about the Holy Hand Grenade from the Search for the Holy Grail (“And the number shall be ‘three’…”). However, in the case of a statutory notice (such a three day notice, or even a 30 or 60 day notice), you can always give MORE notice – you just can’t give LESS notice than the statute requires. So, yes, a five day notice will not be a problem where a three Day Notice would have been available. 

Question 5:     My question is about guests of our Los Gatos unit tenants. Would you give me a general idea of how many days a guest can stay and what I can ask in regards to registering a guest?
Answer 5: Most leases provide a limit on the amount of nights a guest can stay in a particular period (e.g. 5 nights in a month, or 15 nights a year). If your lease has such a provision, and you have some ability to monitor the tenant’s overnight guests (a delicate issue all its own), you can seek to enforce it by warning the tenant informally, and if necessary formally via a three day notice. If you do not have such a clause, you would not be able to object to the tenant having guests, or roommates. If the tenancy is month to month, you could change the terms of the tenancy to limit guests or subtenants. You might be able to terminate the tenancy if the tenants abused the concept of guests.  As for ‘registering’ a guest, that is a new concept to me. I suppose you could require that your tenant provide you documentation of each time a guest stays over, but that kind of rental clause would raise, I believe, more issues (and almost certainly generate a tenant’s ill will) than it would likely be worth. 

Question 6: I have a tenant in a mental hospital, unable to pay rent or care for his unit. His sister states she is scared of him and is moving out (she is listed as an occupant only on the lease). Can I do anything at the moment? He told her he wants to keep the unit but he’s still in the hospital.
Answer 6: As long as the tenant is paying the rent and not in breach of any material lease provision, he is allowed to keep renting the unit even if not there (for whatever reason). But if he is not able to pay the rent, then he needs to make arrangements with you to either get the rent paid (from some source of financial assistance), or you would likely have no choice but to serve a three day notice to pay or quit. It is not an easy situation for either of you to be in, but his problem does not ‘trump’ the duty to pay rent. 

Question 7:    I have a question about marijuana. Since it’s federally illegal, could I ban it from the property? Not including the ones that have medical cards for it.
Answer 7: You can prohibit tenants from having or using marijuana on the premises, though as you mention, tenants or guests with a medical marijuana card may be able to assert a request for a ‘reasonable accommodation’ which is a federal and state law that requires the landlord to make changes to rental policies in certain situations where it is reasonable and necessary for the tenant’s ability to enjoy the unit. It has not been decided if allowing a tenant to possess and use marijuana would be a reasonable accommodation, and it would probably be a ‘jury’ question if both sides (landlord and tenant) elected to fight it out to the bitter end (trial).

This area continues to generate a tremendous amount of uncertainty in terms of the legal rights of both the landlord and the tenant. As you probably know, the legal landscape of marijuana use and possession changes almost daily. It is quite likely that recreational use of marijuana in California is not far off. When (if) that day comes, then presumably marijuana will be treated, for tenant’s purposes, more like tobacco – which can still be banned from the rental premises by appropriate lease language. So, in that regard, even if pot becomes ‘legal’, it will not likely change the analysis above, which in the end becomes a very fact specific case-by-case review of each tenant’s use or request for use of medical marijuana. 

Question 8:    We failed to return the portion of security due to a former tenant. It should have been mailed to her in September 2014. She just informed us that she is expecting interest on the amount due to her. What is considered reasonable interest, and is it compounded daily?
Answer 8: While there is no state law requiring interest on security deposits, that rule only applies when the deposit is being held during the tenancy. If the deposit was held ‘wrongfully’ (i.e. after the 21 days the landlord is given to process any claims after the tenant has vacated), then the tenant is likely entitled to interest on the deposit at what is called the ‘legal rate,’ of 10%, meaning that is what the court would order if she sued for return of the deposit and interest. The interest is not ‘compounded’ – it accrues as ‘simple’ interest i.e. calculated at the 10% rate for each day it was due and not paid. I know 10% seems high, but that is what she would get from the court. You might contact her and see if you can agree to just make it 5% since the interest rate the deposit was earning was probably well below that, and she may agree. It would also save her the trouble of the small claims case (though if the failure to return the deposit was intentional, she may be entitled to the penalty provision of Section 1950.5 (l): “The bad faith claim or retention by a landlord or the landlord’s successors in interest of the security or any portion thereof in violation of this section, or the bad faith demand of replacement security in violation of subdivision (j), may subject the landlord or the landlord’s successors in interest to statutory damages of up to twice the amount of the security, in addition to actual damages. The court may award damages for bad faith whenever the facts warrant that award, regardless of whether the injured party has specifically requested relief. In an action under this section, the landlord or the landlord’s successors in interest shall have the burden of proof as to the reasonableness of the amounts claimed or the authority pursuant to this section to demand additional security deposits.”

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 24 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