This article was posted on Saturday, Feb 01, 2014

Question 1: We have notified the tenants in our duplex that we will not be renewing their one year lease. The end of their lease is February 28. The tenant called yesterday and said she had been very busy with work and had not had the time to do anything toward finding a place or packing up. She has requested we allow her to go to a month to month at the end of the lease until May. She has displayed rather erratic volatile behavior from the first few days of her tenancy and we can’t trust that she won’t have another emotional rant and not move. I do understand her dilemma but am concerned about allowing her to go to month to month and then have to evict. What would you recommend?
Answer 1: Because your rental unit is in a non-rent-controlled city (Santa Cruz), you can allow the tenant to go ‘month to month’ without affecting your right to later insist she vacate, though it would require a 60 day notice since she would have been there over one year. As it stands now, without an agreement with her to the contrary, a letter to her confirming the lease will not be renewed and her tenancy will expire at the lease termination date can be followed with an unlawful detainer if she stays past the lease expiration date. It is up to you whether you want to enforce that lease termination date, or allow her to stay and be a month to month tenant. That is a personal decision for you to make based on your own circumstances.

Question 2: Is it legal to give keys to the tenants before they move in so they get a head start moving belongings to the property before the lease move in date? Does the tenant now have legal rights to the premises? Is there a rescission period of three days after they give a deposit to hold or sign a lease?
Answer 2: It is not a good idea to provide anyone keys to the unit until you have a rental agreement – oral or written – in place (though of course a written agreement is much preferred as it eliminates any issues about whether there is an agreement between the parties or what the terms are). While you can allow confirmed tenants access prior to the rental start date, as appears from your limited facts to be your case, to provide only prospective tenants with key access for any reason is strongly not recommended. Once you have a lease agreement with the tenants, whether they are given early access or not, the tenants have significant rights to the premises, including a right to possession as of the start date of the lease. And there is no three day right of rescission for a residential lease agreement.

Question 3: What is the most effective way to work with the current tenant who will leave the property for showing the unit to potential new tenants? Can the tenant refuse to cooperate?
Answer 3: While there are, I believe, others who would answer this question differently, by perhaps simply repeating the statutory rights of a landlord to enter the premises to show the unit to prospective tenants, after having given the existing tenant the legally required notice, I would suggest that the most effective way is to consult with the tenant about the schedule for showing the property and trying to reach an accommodation that the tenant can live with and that you can live with in terms of showing the unit to potential new tenants. The other option of course is to wait until the tenants vacate, do the necessary work to bring the unit into condition for the new tenants and then show it. It will probably show better that way, which would likely result in a higher rent being received, and avoid the issue of trying to show the unit to various prospective tenants while the current tenants remain in place. However, if your circumstances are such that you need to show the unit before it is vacated, then you simply follow the rules of Civil Code Section 1950.5, which governs the landlord’s right of entry to a rented unit for purposes of showing the unit to prospective tenants. The statute was recently clarified by an appellate case that discussed the right of the landlord to insist on weekend showings, which the court allowed under the circumstances. If the tenant refuses to cooperate, you may need to take legal action to enforce your right of entry. But again, working with the tenant is the best approach.

If the tenant refuses to cooperate with your right of entry after you provide proper notice and attempt to accommodate the tenant’s schedule, you would need to serve a legal notice to the tenant that could result in the tenant’s eviction. At that point, you will likely need to retain an attorney.

Question 4: I have a multi-unit apartment building. All units are two bedrooms with one bathroom. I have a tenant who currently has two adults and three small children in the 770 sq. ft. apartment. The wife is pregnant again and I would like to give them a 60 day notice (they have been there over one year). I have been told that the occupancy guideline for a two bedroom apartment is five people. Is this a hard and fast rule? This is a fairly small two bedroom and based on the condition of the apartment, it is apparent that this unit is too small for this many people. Can you give me an opinion as to any legal jeopardy I might run into by giving them a 60 day notice?
Answer 4: Unless the unit is legally too small for the number of occupants, which you need to contact your local building or planning department to determine, you would run a tremendous risk of being sued for illegal discrimination based on family size if you sought to terminate the tenancy based on the tenants having another child. If the size and configuration of the unit results in it being legally overcrowded by the additional occupant, then you should consult with legal counsel to discuss the best way to proceed to bring the unit into compliance with the occupancy limits.

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Question 5: Are landlords required to change the batteries out of the smoke detectors once the batteries die?
Answer 5: Yes, they are. The answer to your question is found in the state Health and Safety Code Section 13113.7, which is partially set forth below (see the italicized part for the actual answer to your question. The rest is just additional useful information):  An owner or the owner’s agent may enter any dwelling unit for the purpose of installing, repairing, testing, and maintaining single station smoke detectors required by this section. Except in cases of emergency, the owner or owner’s agent shall give the tenants of each such unit, room, or suite reasonable notice in writing of the intention to enter and shall enter only during normal business hours. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary.  The smoke detector shall be operable at the time that the tenant takes possession. The apartment complex tenant shall be responsible for notifying the manager or owner if the tenant becomes aware of an inoperable smoke detector within his or her unit. The owner or authorized agent shall correct any reported deficiencies in the smoke detector and shall not be in violation of this section for a deficient smoke detector when he or she has not received notice of the deficiency. A violation of the law is an infraction punishable by a maximum fine of two hundred dollars ($200) for each offense.

Also, please note that Senate Bill 1394 passed recently and was signed by the Governor to take effect January 1, 2014. This bill would additionally require that for all dwelling units, upon the owner’s application on or after January 1, 2014, for a permit for alterations, repairs, or additions exceeding $1,000, all smoke alarms required for the dwelling unit shall display the date of manufacture on the device, provide a place on the device where the date of installation can be written, incorporate a hush feature, incorporate an end-of-life feature that provides notice that the device needs to be replaced, and, if battery operated, contain a non-replaceable, non-removable battery that is capable of powering the smoke alarm for a minimum of 10 years.

Question 6: I have two tenants listed on a month to month rental agreement and one tenant is leaving, but the other tenant has requested to stay and add a new roommate. Is a new rental agreement required or does the existing one get updated? Also can a tenant be evicted for violating a no smoking addendum?
Answer 6: If you have a new tenant joining an existing tenant, it is simple to add the new tenant to the existing agreement by preparing a short addendum that confirms the old tenant is gone and the new tenant agrees to become a tenant on the lease by signing the addendum. The addendum should be signed by all three persons, if possible, and include confirmation that the security deposit remains with the landlord, and the departing tenant and the incoming tenant agree to transfer the departing tenant’s interest in the security deposit to the new tenant, and both persons agree that the landlord’s right to apply the deposit at the termination of the tenancy is not affected by the change in occupancy.

However, please note that if your unit is a rent-controlled city, adding a new tenant to the rental agreement can affect your subsequent rights to impose a rent increase when the ‘last original tenant’ vacates. If you are in such a city, you should consult with qualified counsel as to your specific situation.

And a violation of a no-smoking provision is grounds for a three day notice to cure the violation or vacate, and if the tenant continues to violate the provision, that would be grounds for eviction.

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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