Question 1: I have a Richmond tenant who submitted her 30 day notice on August 25 with a move out date of September 30. The tenant is now requesting an extension of 30 days, but I have already signed a lease agreement with another tenant who will take possession of the unit on October 1. What are my options, as I do not want to extend the lease any further?
Answer 1: The tenant who gave notice arguably has liability to you for stating an intention to move out which she did not honor, causing you to commit to a new tenant but with no ability to deliver possession, which exposes you to liability for breach of contact. If the Richmond tenant is subject to the recent rent and eviction control law, then you can not compel her to vacate, since stating an intention to move out and then not doing so is not a ‘just cause’ ground for eviction. In the rent control case, your new tenant will need to find an entirely new rental.
A problem, to say the least. If the current tenant is not covered by the local ordinance, then you would still need to undertake the process of notice of termination and unlawful detainer if she failed to move when the notice expired. (Though under state law, a tenant who submits her notice to terminate her tenancy in writing, which is accepted in writing by the landlord, may be subject to an unlawful detainer action if she stays past the stated termination date). Obviously, either option does little good to your pending tenants, at least in the short term.
Your remedy may be in small claims court for any expenses you incurred in defending any claims by the new tenant.
As a practical matter, you might have done two things differently to protect yourself, with one more important than the other. First, unless you have possession of the unit guaranteed (and I don’t know of any way to do that short of a sheriff’s scheduled eviction, and even they can be ‘stayed’), you should let the new tenant know that possession of the unit is contingent on the current tenant timely moving out. Some leases include this provision, though many do not. If yours does, then you will avoid any claims by the new tenant that you breached the promise to provide possession as of September1.
The second point is the sheer logistical issue of having one tenant move out on Thursday and the new tenant taking possession on Friday. That is obviously cutting it very close, and exposes you to a day or two of confusion when the old tenant remains in possession even one day longer, since the new tenant might be showing up at the curb with their moving van and nowhere else to go so, I would not – if possible – ever schedule such a close turnaround.
Question 2: A departing tenant has caused more damage to the unit than the deposit will cover. Will an attorney be willing to handle a case involving damages under $10,000 or, because of the likely attorney fees, is it something more suited to Small Claims Court??
Answer 2: If the claim is under $10K, Small Claims is a likely venue for various reasons. Disputes below that amount may be brought in ‘regular’ court, and if there is an attorney fee provision in the lease, you might be able to recover those expenses. But in general, keeping your collection costs low (which is what small claims is all about) is often the recommended route. An attorney would probably ‘take the case,’ but would charge you for her time, and then you would need to get it back from the tenant through a judgment or settlement agreement. Avoiding such an additional expense is often the best option, though sometimes the use of an attorney can lead to a faster resolution by negotiating a result.
Question 3: What does the code says about cracks at the rear part of concrete stairs. The stairs are solid and sturdy. There is a chip at the rear of the step that is not the part that you step on.
Answer 3: I am not a construction expert so can only surmise about the ‘code’ for such things. But the landlord has a duty to use reasonable care to provide the premises in a condition that does not risk injury to the tenants, so if there is any concern that the condition might be a hazard, it should be addressed.
Question 4: I have put up a sign that says “WARNING SECURITY CAMERA IN USE”. I put it up as a deterrent. Is it legal to put such a sign, even though I don’t have CCTV Cameras?
Answer 4: I am not aware of any issues with placing a sign saying the area is covered by a security camera when there is in fact no camera. The only issue I can think of is a tenant might rely on it for security, for herself or her car or other items, only to find out there was no camera when she got mugged or her car broken into. In that case, she might be able to make a (very weak) claim that she relied on the presence of the security camera and so did not have her own camera installed, or took other precautions, and assumed the area was safe etc. The issue of the landlord’s duty to provide security is a complex one, and the subject of many many court cases, but in your case. However, they do not, to my knowledge, involve the issue of ‘pretend’ security cameras.
Question 5: I have a problem with my tenants being disturbed by a very noisy neighbor in the building to the right of mine. What is my obligation to my tenants?
Answer 5: You have very little duty to your tenants for a neighbor’s conduct, since the tenants have roughly the same ability to bring a legal action against the neighbor as you do for nuisance conduct. That said, you can always reach out to the neighbor and see if they will respond reasonably, and resolve the matter in that way. If they are just ‘jerks,’ you may need to get the city involved (police visits, health Dept etc.), and if bad enough, file a nuisance lawsuit against them.
Question 6: I have an apartment unit where one tenant is moving out at the end of a one year lease and another one staying after he renewed his lease for another year. I have a question as to how the final walkthrough inspection should be handled for the person leaving. Should I use the walkthrough which both signed and just get signature and date of the one who’s leaving or have a separate addendum for the one who is leaving?
Answer 6: Unless you have a lease provision to the contrary, the walkthrough is not clearly required when only one tenant is moving out. However, as a courtesy, and to avoid a claim later that such an effort was required, I generally suggest that the landlord meet with both tenants at the walkthrough, and provide an informal estimate of what damages might currently be claimed from the security deposit, but that it is only done as a courtesy, and return of the deposit does not take place until the unit is completely vacated, and the tenants need to make their own arrangement as to the return of the departing tenant’s deposit share.
In your case, it is not completely clear if the tenant on the original lease is moving out, but an existing tenant is signing a completely new lease. If so, the departing tenant could claim the unit has turned over, even if it was never vacated. In that case, you might make a clean break by returning the departing tenant’s deposit in full (minus any deductions) conditioned on getting the new deposit from the remaining tenant.
Question 7: I would like to confirm that a tenant can’t deny access for repairs during normal business hours, which I assume are 8 am to 5 pm Monday through Friday or does that include Saturday? I am having water damage repairs done through my insurance and their designated contractor.
Also, what is the “loss of habitability” formula?
Answer 7: Generally, the landlord is entitled to access for proper reasons after service of a valid Notice of Entry under Civil Code Section 1954. A recent case allowed a real estate agent the right to compel entry on a weekend for the purpose of showing the unit to prospective buyers, since it was ‘normal business hours’ for agents to have open houses on weekends (though the court did impose restrictions on the time of the open house, and a limit on the number allowed). So, the answer to whether ‘normal business hours’ includes Saturdays (or Sundays for that matter) appears to depend on the purpose of the entry and the related business customs of the persons who are involved.
A tenant denies a proper request for entry at their own risk. In such cases, the usual approach is to communicate with the tenant to understand any objections they may have, and try to work with the tenant rather than initiate a termination notice or three day notice. However, if the tenant will not cooperate, then such a step may be necessary.
As to loss of habitability, there is no formula, and reasonable minds can differ what the value of a particular breach may be worth. Again, the best initial approach is to try to get the tenant’s perspective, and if not unreasonable, work together to get the work done at the least disruption to the tenant (in a way that does not appreciably increase the cost or time of the work) and agree on the value of the loss of whatever housing service or unit use resulted from the work done. There is also the option of submitting the issue to a local rent board for determination, as that is one of their primary functions.
Question 8: My Oakland tenant has caused damage to the unit, though nothing major (some damage to the interior doors, running over the downspout and crushing it, ‘dinging’ the flooring, etc.) The tenant is Section 8 and handicapped. Is this enough to evict her from the property (along with other lease violations, such as disabled car blocking the handicap ramp, slow rent payments, not doing landscaping, and, unauthorized guest living at premises).
Answer 8: The first question is whether the unit is subject to the Oakland rent and eviction control law, Measure EE and the RAP program. Basically, if the building is pre-1983, it’s subject to both, but if a single family home, it’s generally exempt from rent control. I looked more closely at your pictures and while aggravating (especially perhaps the drain spout), I would not think they would rise to the level of an eviction for damage to the property. Plus, the ordinance requires that the damage be intentionally done, which you are unlikely to prove. (“The tenant has willfully caused substantial damage to the premises beyond normal wear and tear and, after written notice, has refused to cease damaging the premises, or has refused to either make satisfactory correction or to pay the reasonable costs of repairing such damage over a reasonable period of time.”).
If the lease makes the tenant responsible for damages, then you could probably make her pay the repairs costs, with a notice to cure or quit if she did not. But an elderly long term handicapped tenant will be given much sympathy, one assumes, so any eviction effort would need to be carefully thought through. The additional issues you mention are for the most part separate grounds for eviction under the Rent Ordinance and ‘piling on’ is generally not recommended. It is better when you have one solid basis to seek to terminate a tenancy, rather than several ‘minor’ issues, as the ordinance requires that the stated basis of the eviction be your ‘dominant motive’ for seeking the tenant’s eviction, and a laundry list of grievances would generally complicate the effort (unless the various items collectively rose to the level of ‘nuance’, which is its on just cause ground for eviction).
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 www.bfc-legal.com.