This article was posted on Friday, May 01, 2015

Question 1:  I served a 60 day notice to my tenants in Richmond because I want to sell the property free of tenants. The notice expired, but the tenants say they are still looking for their new home. Should I go ahead with eviction? Or should I wait a couple more weeks as they claim that they are in talk with couple of properties. Will giving leniency jeopardize my chance of eviction later on? And will their claim of difficulty finding a suitable rental be a valid defense in court?
Answer 1: If you have accepted rent for any period after expiration of the 60 day notice, you will have to serve a new notice. If you have not, it is up to you whether to proceed with the unlawful detainer lawsuit (the eviction case), unless you had given the tenants an indication that you would allow them more time, which might (repeat, might) allow them to argue that you waived or withdrew your Notice and – similar to accepting rent after the Notice expired – are required to serve a new notice. But that argument would likely not be successful, unless you actually told the tenants that they did not have to move despite the expiration of the Notice. Allowing the tenants additional time after the expiration of the Notice – if that was all that was done – will not invalidate the Notice.

Their difficulty in relocating will not be a legal defense to your eviction, should you proceed. However, I think I would make it clear that if they are not out by a date certain, then you will have to file the UD. But again, if you have accepted rent for any day after the Notice expired, you will need to serve a new notice.


Question 2: I  filed an eviction case against my tenants, and the tenants have been served. They now say they have moved out. But they are playing some kind of game about the keys. They asked me to come and pick up the key, but when I sent my agent to pick it up, they would not give him the key, and when I come, they don’t show up or reply. Can I change the lock since now they are practically moved out except for a pile of trash? Is it some kind of trick they are playing that will be trouble for me later on?
Answer 2: I would tell the tenants that if they confirm in writing that all occupants have left and they surrender possession and deliver the keys to you or your agent, then you will dismiss the UD, which will benefit their credit record, as opposed to completing the UD to a default judgment, which you may want to do if they keep ‘playing games.’ There is no benefit to them to not have clarity on the issue of possession.

And changing the locks without that written confirmation from the tenants and a delivery of the keys, or a court judgment, could be used against you by the tenants later, who might allege you unlawfully locked them out while they still had a legal right to possession.  

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Question 3:  A tenant complained to the city regarding health hazards with the apartment and the inspection violation has been satisfied. May the owner legally give the tenant a 60 day notice to leave? This is a month to month tenancy without rent control.
Answer 3: Anytime a tenant makes complaints, and then receives a notice of termination, the tenant can claim retaliation, whether there is any merit to the claim or not. The retaliation claim is particularly applicable when the complaint resulted in an actual notice of violation by a city inspector.

As long as the motive is one other than retaliation, the lessor can terminate the tenancy, but under those facts, the tenants would likely raise that issue. If you do serve a notice of termination, you may need to state a reason, as required under Civil Code 1942.5, set forth in part below. (I recommend all lessors review this entire statute once in a while to remain aware of what is statutorily considered ‘retaliation’ and the effects of building or housing code violations on the lessor’s right to demand rent or change the terms of the tenancy, or terminate it.) Section (e) is the provision regarding stating a reason for the termination that is not retaliatory. Like many statutes, it is written in a confusing manner, often by referring to other sections or other statutes, but a careful review will generally make the intent of the statute clear. (e) Notwithstanding subdivisions (a) to (d), inclusive, a lessor may recover possession of a dwelling and do any of the other acts described in subdivision (a) within the period or periods prescribed therein, or within subdivision (c), if the notice of termination, rent increase, or other act, and any pleading or statement of issues in an arbitration, if any, 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 4: A tenant complained to city about a mold issue and the city inspector issued a notice that the mold had to be abated. What are my obligations regarding the tenant’s continued tenancy, and paying for lodging while the house is repaired?
Answer 4: Generally, if the premises are not habitable, for any reason which is under the lessor’s control and not caused by the tenant, the tenant is excused from the obligation to pay rent to the degree of the lack of habitability. If the tenant has to relocate, the costs of such relocation could be an aspect of the tenant’s ‘damages’ caused by the lessor’s breach of the warranty of habitability. Such damages could include the increased housing costs incurred by the tenant during the relocation. Arguably, with a month to month tenant, those damages should be limited to the one or two months the landlord would need to otherwise terminate the tenancy, in the unlikely event repairs should take such time. However, as with the question above, arguing that damages could be terminated by terminating the tenancy raises the retaliation claim, which could be far worse – financially – than the relatively modest costs of the tenant’s temporarily increased housing costs.

Question 5: A tenant left the unit in horrible condition. The dog urinated in both bedrooms and living room/dining room. The urine leaked through to the sub-floor. We are letting it dry out and using various items to cover the odor. We will then roll on a type of odor-ban. The deposit was $1,095.00. I would have bought new carpet because it was ten years old; however, the sub-floor bothers me because we cannot insure that the odor will ever be eliminated. How much of the deposit can I retain?
Answer 5: I would guess that the damage to the floor will exceed the deposit, since you may have to take more extensive efforts to ready the unit for a new tenant. If you do not get the pet urine out, and your new tenants complain, you will have a bigger problem than you do now. You may need to engage a professional in that area to provide an opinion as to what level of odor eradication efforts is necessary. I do not know the shelf life of a carpet, but you probably had some depreciation value there, which has been eliminated by the pet urine impact, and so can perhaps contact your carpet company and find out what is the reasonable residual value of the carpet you replaced. Between the two expenses, properly documented within the applicable 21 day period (or longer if necessary – see Civil Code 1950.5), you will likely properly apply the entire deposit. However, it is your actual accounting of allowed expenses that will determine the final figure. 

Question 6: We just bought a triplex in Richmond. One tenant’s lease expires at the end of April, and one expires in May. Should we sign new leases with them? If we need to sign leases with them, do I set up appointment by using 3-day notice to meet them? What is a legal proper way to inform the tenant about the ownership change?
Answer 6: Since the building is not in a rent controlled city, it is (generally) up to you whether to sign new leases or not. If the existing lease expires and has not been renewed, the tenants can stay and pay rent, and if you accept it, a month to month tenancy is created on the same terms as the expired written lease. If you don’t have an agreement with the tenants at the lease’s end, and they remain in possession, 
they are holding over and you can evict them without notice by filing and serving the unlawful detainer lawsuit. However, that should be unnecessary, if you should talk or write to them in advance about your respective plans for that event.
A three day notice is not used to make an appointment to meet with the tenants. A simple phone call, letter or email is fine.
As to introducing yourself as the new owner, there is no ‘formal’ method required to do so. Civil Code Section 1962, set out in part below, provides the required information that a lessor must provide a tenant annually, and applies to new owners such as you, and so you should review that section and be sure to comply with it. Generally, a letter introducing yourself as the new owner, with date of ownership and your contact information for anything related to the tenancy, or the same for any manager you employ, is sufficient, and should include the address or account number for them to use to pay the rent. A personal introduction may also be appropriate.
Civil Code Section 1962:   (a) Any owner of a dwelling structure specified in Section 1961 or a party signing a rental agreement or lease on behalf of the owner shall do all of the following: (1) Disclose therein the name, telephone number, and usual street address at which personal service may be effected of each person who is: (A) Authorized to manage the premises.  (B) An owner of the premises or a person who is authorized to act for and on behalf of the owner for the purpose of service of process and for the purpose of receiving and receipting for all notices and demands.  (2) Disclose therein the name, telephone number, and address of the person or entity to whom rent payments shall be made. (A) If rent payments may be made personally, the usual days and hours that the person will be available to receive the payments shall also be disclosed. (B) At the owner’s option, the rental agreement or lease shall instead disclose the number of either: (i) The account in a financial institution into which rent payments may be made, and the name and street address of the institution; provided that the institution is located within five miles of the rental property. (ii) The information necessary to establish an electronic funds transfer procedure for paying the rent. (3) Disclose therein the form or forms in which rent payments are to be made.  (4) Provide a copy of the rental agreement or lease to the tenant within 15 days of its execution by the tenant. Once each calendar year thereafter, upon request by the tenant, the owner or owner’s agent shall provide an additional copy to the tenant within 15 days. If the owner or owner’s agent does not possess the rental agreement or lease or a copy of it, the owner or owner’s agent shall instead furnish the tenant with a written statement stating that fact and containing the information required by paragraphs (1), (2), and (3). (b) In the case of an oral rental agreement, the owner, or a person acting on behalf of the owner for the receipt of rent or otherwise, shall furnish the tenant, within 15 days of the agreement, with a written statement containing the information required by paragraphs (1), (2), and (3) of subdivision (a). Once each calendar year thereafter, upon request by the tenant, the owner or owner’s agent shall provide an additional copy of the statement to the tenant within 15 days.  (c) The information required by this section shall be kept current and this section shall extend to and be enforceable against any successor owner or manager, who shall comply with this section within 15 days of succeeding the previous owner or manager. A successor owner or manager shall not serve a notice pursuant to paragraph (2) of Section 1161 of the Code of Civil Procedure or otherwise evict a tenant for nonpayment of rent that accrued during the period of noncompliance by a successor owner or manager with this subdivision. Nothing in this subdivision shall relieve the tenant of any liability for unpaid rent.

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 24 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