Question 1: My Oakland tenant has not paid the second half of the security deposit and a late fee from last month, all terms agreed to on the lease agreement. What are the legal steps I can take to collect?
Answer 1: You can serve a three day notice that demands compliance with the lease obligations, at least with regard to the unpaid security deposit. It would be a standard “Three Day Notice to Cure or Quit’ and then a specific explanation of what she is required to do. Check AOA forms for the proper form for a general three day notice to cure or quit, though it may need to be modified to reflect your specific situation. However, always note that most lease violation notices in Oakland also require a ‘pre-notice’ notice before the ‘official’ statutory three day notice to cure or quit may be served. Please be sure to check the local ordinance for that requirement.
Late fees, as has been discussed in this column in several prior posts, are a little more problematic, and can be difficult to enforce through the court if the tenant refuses to pay the amount demanded. However, there is likely little downside to requesting them if they are provided for by the lease.
Question 2: Can I legally enter the apartment unit in the weekend with 24-hour notice for repairs requested by the tenant? My tenant is insisting that he must be there and I can only enter with his permission. This creates problem with maintenance people, because he is not always there as agreed.
Answer 2: This is an oddly common issue that defies easy solution if the tenant is not cooperative. If the tenant has requested a repair, it should be relatively easy to coordinate entry to complete the repair. But as you have discovered, some tenants will insist that they be home when the repairs are done, but refuse to make themselves available on a weekday (because the tenant will say he or she can’t miss work, etc.). Strictly speaking, the landlord’s right of entry into the tenant’s unit is governed by Cal Civil Code Section 1954, which provides in part as set forth below.
If the tenant makes requests for repairs (or you have other legitimate need to enter the unit), but them impedes that process by, for example, limiting entry to times when the tenant is home (or, as also happens, not being home at an agreed time), you may need to take measures to amend your rental agreement to provide for access upon proper notice, regardless of the tenant’s presence. If the tenant makes it clear that any entrance without the tenant being present will be deemed a violation of the tenant’s rights, then you are strongly recommended to seek specific legal assistance to address that situation.
But in answer to your specific question, if the tenant agrees to allow weekend access to your agents or repairpersons, then you or your agents may enter. The tenant can also waive the notice requirement, though it does not hurt to confirm any such waiver by providing notice anyway, in writing, just in case there was a misunderstanding.
Also, it should be noted that a recent case (Dromy v. Lukovsky (2013), 219 Cal. App. 4th 278) allowed for weekend entry to the rental unit for purposes of showing the unit to prospective buyers. The court analyzed the meaning of the phrase ‘normal business hours’ and concluded it was adaptable to include the days and hours when real estate agents normally show properties at open houses, and that included weekends, with reasonable limits on the times of entry to respect the tenant’s rights to quiet enjoyment during the weekend.
Cal Civil Code Section 1954:
(b) 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.
d) (1) Except as provided in subdivision (e), or as provided in paragraph (2) or (3), the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary. (3) The tenant and the landlord may agree orally to an entry to make agreed repairs or supply agreed services. The agreement shall include the date and approximate time of the entry, which shall be within one week of the agreement. In this case, the landlord is not required to provide the tenant a written notice.
(e) No notice of entry is required under this section: (1) To respond to an emergency. (2) If the tenant is present and consents to the entry at the time of entry.
Question 3: My Stockton tenants gave me the notice that they would move out on 12/31/14. They have not yet moved out, and they still owe for November and December. I recently found out that they have not been living there for a month and have other people living there. What can I do?
Answer 3: Your question is a bit confusing, as it says “they have not yet moved out,” but then you “recently found out they have not been living there for a month…”?
Probably your best approach would be to start with a three day notice to pay rent or quit. And, if you prefer the tenants move out, you can initiate eviction proceedings one of two ways. If they gave you written notice that they would leave by the end of December, you would be permitted to file an unlawful detainer lawsuit (eviction action) on January 1 if the tenants remained in possession. If their notice was not in writing, you would need to serve them, and all occupants, a Notice of Termination of Tenancy, with the eviction action to follow if they remain in possession after the notice expires. However, be aware that if the three day notice to pay rent or quit demands rent for a period after the tenant’s written notice of termination date (or your notice of termination date’s end date), the three day notice could invalidate the termination notice.
Either way, you will likely need to bring an unlawful detainer action to recover rent and/or possession, but you may want to consult with local counsel to get a clear understanding of your options based on the information you have.
Question 4: Do pre-vacate inspections by a landlord apply with single family rentals?
Answer 4: Yes. There is nothing in the applicable statute (Civil Code Section 1950.5) that exempts single family homes from the inspection provision.
Question 5: We have a tenant on a month to month lease in a non-eviction/rent control jurisdiction. She has lived there for approximately 3 years. She was remiss in noticing a water leak inside the property and it caused quite a bit of damage. Also, she has been abusive to the owners and other tenants. We want her out of the building so our son can move in. Is a 60 day notice to vacate all that is required in this case or does she have some sort of recourse we should be aware of? Thank you
Answer 5: On your facts, only a 60 day notice is required. However, if there was some sort of water intrusion issue, the tenant might be able to claim she reported it and is being ‘punished’ for just reporting the problem, known as ‘retaliation.’ If she has made any actual claim about the condition of the unit within the last 6 months, you might want to consider including in your notice your reason for terminating the tenancy. Civil Code Section 1942.5., the statute regarding retaliatory rent increases or terminations, provides in part: Notwithstanding subdivisions (a) to (d), inclusive, a lessor may recover possession of a dwelling …within the period or periods prescribed therein…if the notice of termination… states the ground upon which the lessor, in good faith, seeks to recover possession, increase rent, or do any of the other acts described in subdivision (a) or (c). If the statement is controverted, the lessor shall establish its truth at the trial or other hearing.
Question 6: My tenant did not pay rent this month (December). I posted a 3-day notice and mailed a copy because they would not answer the door. They told me to take the rent out of their security deposit and they will be out by December 31. Rent is $1,900.00 and the security deposit is $3,000.00. I have a clause in my lease agreement saying security deposit cannot be applied to last month’s rent so my inclination is to move forward with the eviction after the 3-day notice has expired. I let them know they could not apply the security deposit to the rent so they know where I stand. What kind of timeframe am I looking at to be able to evict them since I have a feeling they did not plan to be out by the 31st anyway and I will need to go through the entire eviction? I’ve heard landlords are usually out three or four months’ rent and never recover the court costs.
Answer 6: I agree with your position that the security deposit should not be applied to the last month’s rent. That means you will need to follow up on the 3 Day Notice with an eviction action, unless you want to take the chance that the tenant will actually move out as promised, and not leave more than $1,100 in security deposit claims. On the other hand, you may spend legal fees unnecessarily, by assuming the tenant will not do as promised. It’s a tough call sometimes. But if you decide to undertake the eviction, here is what you might expect.
Briefly, an eviction, formally known as an ‘unlawful detainer’ action, is the legal process by which a landlord seeks judicial help to recover possession of a rental unit from a tenant. Because ‘self help’ – the lockout – is illegal in California, using the unlawful detainer process is the most common method used by landlords to evict tenants. In a typical scenario, a tenant will fail to pay the rent on time, or commit some other breach of the lease (such as subletting without permission or having a pet). The landlord will then have the tenant served with a three day notice to cure the breach (pay the rent, get rid of the pet, etc) or quit the premises. If the tenant does either, that is the end of that particular matter. If the tenant fails to do either, the landlord may then file the eviction lawsuit with the local county court.
The ‘unlawful detainer complaint’, as with all documents involved in the process, can be prepared by the landlord. However, due to the strict requirement that the landlord follow very carefully the rules involved in evicting people from their homes, self- representation by the landlord should not be done without a clear understanding of the process. Landlords who fail to properly follow the rules, especially in rent controlled locations, often cause the case to take longer than necessary, and can expose themselves to legal liability for such claims as attempted wrongful eviction.
Once the complaint has been filed with the court, it has to be ‘served’ on the tenant along with a ‘summons’ that requires the tenant to file a written response. Unlike the 3 day notice, which can be served by the landlord, the summons and complaint has to be served by a third person, often a licensed process server. If the summons is personally served, the tenant has five days to file a written response with the court. If the tenant is ‘sub-served’ or served by a court order to post and mail the summons and complaint, the tenant has 15 days to respond. This is the first event that can skew the eviction timeline.
Once the summons and complaint have been properly served on the tenant, the tenant files a written response with the court, and sends a copy to the landlord. If the tenant fails to file his response with the court, the landlord can immediately request that the court enter the tenant’s ‘default.’ If default is entered, it is then a fairly easy process to have judgment for possession issued by the court.
If the tenant does respond, he may file a ‘demurrer.’ This is basically a delay tactic used to buy the tenant some additional time to figure out what to do to defend the case. It can often add another three weeks to the timeline. If the tenant files an “Answer,” then the landlord is entitled to have a trial date set no more than 20 days later.
In the most extreme cases, the landlord actually submits the case to a judge or jury for trial. As the ‘plaintiff,’ it is the landlord’s obligation to prove the facts that justify her right to a judgment against the tenant, and the tenant is permitted to offer defenses, such as ‘breach of the warranty of habitability’ in non-payment cases, that may defeat the landlord’s claims. More commonly, however, the two parties negotiate a compromise solution that allows the tenant to remain by curing the problem, or vacate the premises by stipulation.
If trial is necessary, and the landlord wins, she will be awarded judgment for possession, and back rent or per diem damages. Once judgment is issued, the landlord prepares a ‘writ of execution’ (no, not that kind) which will allow the county sheriff to post a final five day notice on the premises notifying the tenant that the sheriff will return on a specified date and time to restore the owner to possession. This may result in the sheriff escorting the tenant out of the unit on the date set for eviction, and giving the landlord documentary evidence of the landlord’s right to recover possession, and change the locks. If the tenant leaves personal property behind, there are rules that apply to allowing the tenant a 15 day opportunity to recover their possessions upon payment of the reasonable cost of storing the possessions, and after making arrangements with the landlord to retrieve them.
The total length of time involved, and the cost if the landlord retains an attorney, can vary tremendously based on the value of the unit to the parties, and other factors. However, a ‘typical’ case in which the tenant simply does nothing in response to the eviction effort (sometimes called an uncontested eviction), should take about three to four weeks and cost between $500 and $1,500 (the lower fee is if the landlord does everything herself, since ‘court costs’ – filing fee for the complaint, process server for the summons, various fees for getting documents issued by the court and finally the Sheriff’s fee – typically will add up to about that amount.) If the tenant defends the case, the legal fees to the landlord are unpredictable, and depend on how actively the tenant’s attorney actually contests the landlord’s case. In most cases, however, the defense is perfunctory, and the case settles before trial, but not before the landlord has incurred somewhere between an additional $2,000 – $5,000.00 in legal fees. In the most extreme cases (fortunately very rare), requiring ‘discovery,’ pre-trial motions and a jury trial, fees can exceed $10,000.00.
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 www.beckmanblairllp.com