This article was posted on Thursday, May 01, 2014

Question 1: I recently asked a tenant to vacate our duplex in Cupertino. We had to do significant termite work, including fumigation, and in addition, they always had many people staying over, causing undue wear and tear on the property. My question is this –  the re-painting, carpet cleaning (twice so far), restoring the damaged kitchen cabinets etc., and readying the unit for a new occupant has cost $400.00 more than the $2,000.00 deposit I hold. However, the tenant accidentally paid an extra month’s rent (it was on bank auto-pay). Can I legally deduct the extra $400 from the over-paid rent I received to cover those expenses? Or, am I restricted to the security deposit only, and have to return the overpaid rent in full?
Answer 1: Your questions first assume that all your deductions were warranted under the security deposit statute (Civil Code Section 1950.5). Assuming so, unless the tenant also stayed beyond the expiration of the termination notice, I don’t think you can apply rent paid inadvertently to supplement the security deposit. Since the ‘extra’ rent was paid accidentally, you might be considered a ‘gratuitous bailor,’ meaning one who holds someone else’s property in trust, with an obligation to return it in the condition received. If the tenant brought an action in small claims on those facts, I think the court would order a refund of the extra amount withheld, along with possible penalties for wrongful withholding of security deposit, even though the case would not fall squarely within that rule (since you were not withholding the security deposit, strictly speaking).

Question 2: I rent to college students, usually five at a time, all signing one lease agreement so I have a single tenancy. The lease expires June 30. Two of the roommates want to stay another year. In the past, when new roommates ‘cycled’ in and out I had the new set of roommates sign a new lease. The problem arises with the newest tenants not wanting to take responsibility for clean-up and repairs when they all finally move out. The newest tenants say the place was in that condition when they moved in, thus they are not responsible for the damages or clean-up. When I rent to a whole new group of tenants I always have a cleaning service come in and clean the place thoroughly. And the lease states the property must be in this same condition when they vacate the property. How can I handle this better so the tenants, new and old, know they are responsible for the damages and clean-up at the end of a lease?
Answer 2: That is not an uncommon problem. The answer depends somewhat on whether the new occupants are subtenants of the original tenants, or are added to the lease as co-tenants. In a non-rent controlled location such as yours, adding the tenants to the lease is probably to your benefit, as it makes them equally responsible as the original tenants for the lease covenants and obligations, though it also imposes certain reciprocal obligations on you as to the occupants’ rights of occupancy (but on balance, I still think adding the tenants is the better practice). In rent controlled cities, such asOakland andSan Francisco, the issue of incoming occupants to existing tenancies is one of the thorniest problems, and an issue covered elsewhere and previously in this column.

As to your question regarding the new occupants’ concerns regarding their liability for the existing condition of the unit, and its impact on their part of the security deposit, I have recommended that for each new occupant –whether they will be a sub-tenant or a co-tenant –  you have them sign an addendum that they understand how much the deposit is, that the security deposit is held as one common Security Deposit for the entire unit, and the entire Security Deposit will be accounted for when the last tenant on the lease vacates the unit, and that it is the incoming tenant’s responsibility to make necessary arrangements with the master tenants, or the tenants they are replacing, to do their own security deposit transfer. Ideally, the departing tenant and the new tenant should sign an agreement as to how much of the departing tenant’s security deposit will be returned to the departing tenant, and the balance of that departing tenant’s Security Deposit will be paid by the new tenant, who then is entitled to the return of the deposit at the end of the lease term, or when the new tenant moves out, just repeating the scenario as the tenants rotate through.

However, you can also terminate the original tenancy in its entirety, at the end of the lease, return the deposit according to the condition of the unit, and start with a new lease with the remaining tenants and the new tenants and a new security deposit, even if some of the occupants remain in possession through the two lease periods.

Question 3:  I have a tenant who moved in three years ago to an eight-unit building.  At the time he signed a bed bug addendum to his lease.  Last June he reported that his apartment had bed bugs, and that he had a friend in the pest control industry that could take care of the problem cheaply.  I allowed this.  In October he reported that it was still a problem, so I arranged a heat treatment extermination, which cleared the problem.

- Advertisers -

As the bed bug addendum clearly states that resident “agrees to indemnify and hold harmless the Owner from any actions, claims, losses, damages and expenses Owner may incur as a result of the negligence of Resident….” I sent him a bill for the extermination.  When he claimed that the bed bugs must have migrated from an adjacent apartment, I also arranged a canine inspection of the adjoining units, and sent him that bill too, when the adjacent apartments were reported negative.

He, of course, is refusing to pay, citing excessive cost, and that he was not negligent, (despite not having his mattress encased in a plastic zippered cover also required in the addendum), and CA Civil Code 1941 requiring owner to maintain a habitable dwelling.  I maintain that he or his guests had to have brought them into the unit, which was negligent, since bed bugs don’t just wander in from down the street. Do you have any opinion on this matter?
Answer 3: The problem with bedbugs, and who is responsible for their eradication, is generally the one you identify – establishing who was responsible for their introduction to the building. IF it was the tenant or his guests, then he is responsible for the consequences (whether there was a lease addendum or not). However, proving that fact is difficult. You have done a good job, by having a test of the neighboring units to confirm no other infestation exits, basically ruling out the migration theory. The likely explanation is that the tenant brought them in, one way or another. However, in my opinion, because of the uncertainty of the facts, splitting the expense as a compromise solution may be the most effective way to get past the issue without spending an inordinate amount of time, which you can never recover, or expense, which you may recover, from the battle that may occur should either side insist on having 0% or 100% liability. You can stand fast, and send a three day notice for the cost of the treatment, as the cost of his violation of the bed bug addendum, or even bring a small claims action. The choice is up to you.

Question 4:  I have a tenant who has been hospitalized for the last month. It is undetermined if he will return to the apartment when he is released and I am unable to get much info because I am not related. No rent has been paid for the month, which will soon be two months. How long do we have to hold the unit for him? How do we proceed with something like this?
Answer 4:  Unfortunately for the tenant, there is no rent payment grace period due to unfortunate circumstances such as hospitalization. If the rent is unpaid, you can serve a three day notice to pay or quit, though serving the notice may present an issue, as you know the tenant is not at the premises, and serving the tenant at the hospital – arguably legally required under CCP Section 1162 – could possibly have negative health consequences on the tenant. It would be extremely helpful if you could locate someone who is assisting the tenant, such as a family member or appointed social worker, and try to work out some arrangement with that person regarding either payment of the rent in the tenant’s absence, or an agreement with the tenant to surrender the unit and remove all possessions. If there is no such person, then you will need to proceed according to your own sense of what is proper (i.e. continue to wait it out, or take legally permitted action – unlawful detainer after proper service and expiration of the three day notice – to regain possession of the unit to re-rent to a new tenant).

Question 5:     What is the maximum rent increase in one year, if I have already raised it 10%?
Answer 5: The reference to a 10% rent increase that you may be thinking of (for non-rent controlled rentals, of course) is the provision in Civil Code Section 827 that provides that if the total amount of increases in a 12 month period exceeds 10%, the tenant must be given at least a 60 day notice of the rent increase, rather than the otherwise-required 30 days of notice of the rent increase. Otherwise, there is no restriction on the amount you can increase rent, other than the limitations associated with claims that the rent increase is due to retaliation or discrimination (and, of course, limitations imposed by any local rent control ordinance).

Question 6: My tenant’s year lease expired recently and she has been on a month-to-month tenancy. On March 16, I gave a 60 day notice to terminate the month to month agreement. I told the tenant she could only pay 16 days rent on May 1. She has been depositing rent directly in my account. What do I do if she deposits a full month’s rent on May 1 instead of just 16 days?
Answer 6:  If the tenant deposits the full amount, just send her a check for the overage right away. It would not hurt to send her a reminder before the end of April to only deposit the amount to cover the first 16 days, just to be clear.

Question 7:  Am I, as a property manager/owner, required to provide a physical address for tenants to deliver the monthly rent or is a P.O. Box sufficient?
Answer 7:  According to Civil Code Section 1962, the owner or manager must provide the tenant with “name, telephone number, and usual street address” of each manager, and owner or other person authorized to accept service of legal documents for the owner. Section 1962 also requires additional information be provided to the tenant regarding how and where rent may be paid. But as to your specific question, the tenant must be provided with the name, phone number and address of the owner or manager to whom rent payments are to be made, or the information necessary to allow the tenant to deposit the rent electronically. It might be helpful to review Civil Code Section 1962(a) for the specifics.

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




Leave a Reply