This article was posted on Friday, Nov 01, 2013

Question 1: Are there new rules regarding being able to enter the tenant’s unit on weekends? I heard the landlord’s right to require access has been expanded to include Saturday and Sunday.
Answer 1:
Yes, you heard correctly, as a recent appellate case was issued that significantly expanded and clarified the issue of when a landlord can require a tenant to allow the landlord access to the unit.   Landlords have generally operated under the assumption that they could not require the tenant to allow the landlord to enter the premises on Saturday, Sunday or holidays. The statute that governs the entry and inspection rights and duties of landlords and tenants – Civil Code Section 1954 – forbids the landlord from entering a dwelling, except in specified circumstances.” Subdivision (a) of section 1954 states that a landlord may enter a dwelling unit “only” in the following cases:

  1. In case of emergency.
  2. To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5.
  3. When the tenant has abandoned or surrendered the premises.
  4. Pursuant to court order.

Section 1954, subdivision (b) provides: “Except in cases of emergency or when the tenant has abandoned or surrendered the premises, entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry.”     The plain language of the statute limits the time period during which a landlord may, for example, exhibit a dwelling to a prospective or actual purchaser. Unless the tenant agrees otherwise, a landlord may only exhibit the dwelling during “normal business hours.”

Nothing in the statute, however, defines this phrase and it has been, in this attorney’s experience, the accepted understanding that access was limited to Monday-Friday 9:00 a.m to 5:00 p.m. However, in the recent landmark case Dromy v. Lukovsky, the appellate court decided that the statute does not preclude weekend open houses because it states nothing about the days on which a landlord may exhibit a dwelling, but merely limits the hours he or she may do so. The court concluded that if the Legislature had wanted to categorically bar landlords from entering dwellings during the weekends, it could have easily done so.

In the Dromy case, the landlord (Dromy), frustrated by the tenant’s restrictions on allowing access for weekend open houses, filed suit to compel such access. After a hearing, the trial court entered a “lengthy and thoughtful order” which concluded that as a matter of law, section 1954 “permits landlords to hold open houses on weekends with reasonable notice.”

The trial court’s order provided that Dromy’s designated licensed real estate agent shall be entitled to hold two open houses per month. It further stated that open houses “may be held on weekend days between 1:00 p.m. and 4:30 p.m.” and that Dromy’s designated agent “shall be present and defendant may be present during any and all such open houses.” Finally, the judgment stated that Dromy’s designated agent “shall give 10 days advance email notice to defendant of proposed weekend open house dates, and defendant shall respond within 48 hours of receipt of same acknowledging the proposed dates or providing alternative weekend dates.”

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The tenant Lukovsky appealed the court’s judgment, resulting in the appellate court ruling that the use of the phrase “normal business hours” in the statute “appears to be a means of balancing two competing policies [the tenant’s right to quiet enjoyment and the lessor’s right to access to market the property]. Unfortunately, the Legislature gave no guidance as to what the phrase means. When section 1954 was enacted, Black’s Law Dictionary defined ‘business hours’ as meaning: ‘In general those hours during which persons in the community generally keep their places open for the transaction of business.’ (Black’s Law Dict. (4th ed. 1968) p. 249, col. 2.) “

The court held that in this case, “the relevant community consists of licensed professionals working in the residential real estate sales business. It is undisputed that the custom and practice of licensed real estate agents is to hold open houses during weekends, thereby making viewing residential property more convenient for prospective purchasers, most of who work during weekdays.”

The tenant argued that the phrase “normal business hours” necessarily excludes Sundays because Sundays are defined as state holidays under Government Code section 6700(a). The appellate court disagreed. “The significance of a day being designated a holiday by the state is that generally government offices are closed on those days. (See, e.g., Gov. Code, § 6702 [public offices of a city shall be closed on state holidays unless otherwise provided by charter, ordinance or resolution]; Gov. Code, § 6707 [when the last day for filing an instrument with a state agency falls upon a Saturday or holiday, the instrument may be filed on the next business day]; Code Civ. Proc., §§ 134, 135 [courts are closed on judicial holidays, which include holidays listed in Government Code section 6700].) Lukovsky cited no authority indicating Government Code section 6700 has any connection or relevance to section 1954.”

The court concluded that the term “normal business hours” in section 1954 means “objectively reasonable hours under the facts and circumstances of the case, keeping in mind the right of tenants to quiet enjoyment and the right of landlords to sell their property. Thus when a landlord seeks to exhibit a leased dwelling unit to prospective or actual purchasers, he or she may only enter the property during reasonable hours, unless the tenant consents to another time.”

The Dromy case was focused on access for showing the unit to prospective purchasers, and the trial and appellate court focused on the unique aspect of that particular reason for seeking access. Landlords should not rush to notify their tenants that they will be coming in Saturday morning at 9:00 to repair the leaky faucet the tenant complained about. If the landlord’s crew normally works Monday-Friday, then access should probably be limited to the crew’s normal work schedule. However, if the owner is the maintenance person too, and has a ‘regular’ job that leaves her free only on weekends to do such rental unit repairs, then requiring weekend access would likely be permitted. Of course, and as the court pointed out, working with the tenant to arrange a mutually convenient day and time for any access need is always preferred, and can go a long way toward avoiding the kind of expensive and times-consuming disputes that led Mr. Dromy and Ms. Lukovsky to court in the first place. 

Question 2: I have a vacant unit that I offered it to one of the applicants, but they must give 30 day notice to their current landlord. Can I charge them a non-refundable deposit to hold it for them?Answer 2: “Non-refundable” deposits (other than the cost of the credit report to screen an applicant, which is limited to about $40) are generally prohibited. If the deposit appears to be related to the security deposit, in any form, it cannot be considered non-refundable. However, I am not aware of any objection to a separate contract between you and a prospective tenant in which you ‘sell’ to the prospective tenant an option to rent the unit, in exchange for an option price. For example, you and the prospective tenant could agree that in order for you to hold the unit for them exclusively for a period of 30 days, you will charge them $x for that. It needs to be described as an option payment, not an advance on the rent, and not part of the security deposit. However, that would also mean you would not be able to rent the unit to any other person during the option period, as the applicant would be purchasing that exclusive right with her option payment.

Question 3: A tenant complained about bed bugs. I just had the whole house fumigated for bed bugs by a professional exterminator company. I asked the company to re-examine the place and they confirmed there are bed bugs. They said the recent fumigation should have killed all bugs so the new bed bugs must be bought in by the tenants. The company’s fumigation only has a 30-day warranty, so they asked me to pay for another fumigation. The tenant refuses to move out and I am afraid she may keep bringing back the bed bugs. I cannot afford a monthly fumigation. What should I do?
Answer 3: A tenant is entitled to habitable premises, which would include freedom from bedbugs nor caused by the tenant. Responsibility for bedbugs can be very difficult to establish, unless it is clear how they were introduced to the premises. If the tenant clearly caused the infestation, I believe the tenant can be compelled to pay the cost of eradication, or face eviction for nuisance. However, again, establishing who is ‘at fault’ can be very difficult, if not impossible, and generally it will be the lessor’s burden to show it was the tenant’s fault. If you have at least some evidence that the tenant brought the infestation to the unit, or the building, you can make the argument to the tenant that the best solution is to split the cost of an additional fumigation, and then work with the pest control company to aggressively maintain a bug free environment going forward. Obviously, no landlord should have to keep paying to have bedbugs removed if the tenant is bringing them in. But again, proof of causation will often be the most difficult issue.

Question 4: I suspect that one of my tenants is selling drugs. In addition, they are not paying rent. Should I try to evict them based on non-paying rent only? What other legal action can I take regarding the possible selling of illegal drugs?
Answer 4: A three day notice to pay the rent or vacate is likely the easiest way to recover possession of the property, assuming the tenants simply don’t have the rent money and have no legitimate defenses. However, if the tenants are selling illegal drugs, then you may have a duty to your other tenants or neighbors to terminate the tenancy by a three day notice alleging nuisance. If the evidence of such activity is strong, then it is likely your better course would be to proceed via the nuisance action, reserving the right to demand the rent should you be wrong about the illegal conduct and have to dismiss that case or lose at trial. But if the drug activity is only a suspicion, you may want to start with the rent demand, since a failure to pay the rent is more likely a simpler case to prosecute by the landlord.

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 19 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




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