Question 1: I am being sued by a tenant for the return of the portion of her security deposit that was deducted for repairs and cleaning cost. The tenant lived in the unit for 18 months. She was charged for 25% of the cost to paint the 3-bedroom 2-bath unit and carpet sanitizing. Also, the stove required deep cleaning to remove grease build up, and there was a wood rod damaged by a broken kitchen faucet. According to the tenant her son was responsible for the damage to the hose connected to the faucet.
Her move out date was Feb. 28, 2015. She received the deposit worksheet and remaining deposit on March 17, 2015 with a note offering receipts upon request. I had no further communication until I was served with an order to go to small claims court in December, 2015. Is there a time frame by which the tenant must request receipts and/or accounting, and if not, how should I prepare for the court appearance?
Answer 1: Your offer to provide receipts upon request may not have been sufficient to comply with the security deposit law. The tenant was to be provided the accounting required by CCP 1950.5(g) within 21 days of moving out. That accounting must include “an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security.” Along with the itemized statement, “the landlord shall also include copies of documents showing charges incurred and deducted by the landlord to repair or clean the premises, as follows:
(A) If the landlord or landlord’s employee did the work, the itemized statement shall reasonably describe the work performed. The itemized statement shall include the time spent and the reasonable hourly rate charged.
(B) If the landlord or landlord’s employee did not do the work, the landlord shall provide the tenant a copy of the bill, invoice, or receipt supplied by the person or entity performing the work. The itemized statement shall provide the tenant with the name, address, and telephone number of the person or entity, if the bill, invoice, or receipt does not include that information.
(C) If a deduction is made for materials or supplies, the landlord shall provide a copy of the bill, invoice, or receipt. If a particular material or supply item is purchased by the landlord on an ongoing basis, the landlord may document the cost of the item by providing a copy of a bill, invoice, receipt, vendor price list, or other vendor document that reasonably documents the cost of the item used in the repair or cleaning of the unit.
If a repair to be done by the landlord or the landlord’s employee cannot reasonably be completed within 21 calendar days after the tenant has vacated the premises, or if the documents from a person or entity providing services, materials, or supplies are not in the landlord’s possession within 21 calendar days after the tenant has vacated the premises, the landlord may deduct the amount of a good faith estimate of the charges that will be incurred and provide that estimate with the itemized statement. If the reason for the estimate is because the documents from a person or entity providing services, materials, or supplies are not in the landlord’s possession, the itemized statement shall include the name, address, and telephone number of the person or entity. Within 14 calendar days of completing the repair or receiving the documentation, the landlord shall complete the requirements in paragraphs (1) and (2) in the manner specified.”
If the accounting was not done in compliance with the statute, the tenant may get a deposit refund even if he or she would otherwise have been liable.
If the statute was complied with, then the tenant will have to argue he or she did not cause damage to the unit beyond ordinary wear and tear, and that will be based on the evidence presented, and the judge’s view of the evidence. Unless the tenant caused the unit to need to be repainted, interior repainting after 18 months will probably be considered a ‘cost of business’ (since you want the unit to look nice for the new tenants/applicants etc.). The other issues are unclear, but your best effort is to try to make it easy for the judge to understand why you made a particular deduction, and why it was warranted and not due to ordinary wear and tear. If possible, you would want to have a witness who can testify about the cause and extent of any damage for which the tenant was charged, and provide estimates and actual receipts of repairs. That’s about al you can do, and then let the judge rule. You can appeal a decision with which you disagree, but that means another trip to the courthouse…meaning it is often more cost-effective to try to negotiate some compromise with the former tenant and save you both a half-day (or more) at the courthouse in the first place.
Question 2: My tenant voluntarily vacated the property in December, but the lease agreement is through January. What is the process to move forward with another tenant and collect the rest of the rent from the former tenant? Do I have to wait for the lease to expire?
Answer 2: If the tenant moved out, and took all her belongings, then the property is ready to be re-rented. You may have a claim against the former tenant for the rest of the lease rent, but that would likely be a small claims matter, and would not affect your legal right to re-rent the unit. In fact, under the concept of ‘mitigation of damages,” you may have a legal obligation to try to rent the unit as soon as possible so the former tenant’s rent obligation is reduced as much as reasonably possible.
Question 3: I gave the tenants 60 days to move out. They asked for seven months. I ended up extending the termination of their tenancy five full months. They were supposed to be out on January 15th. It is now January 21 and although they have not been sleeping in the house, it appears at least half their personal property is still in the house as well as significant amount of outdoor furniture, tools & garbage. How do I get these people out? At what point can I remove their belongings myself? Do I have to put their stuff in storage? At what point can I determine if they have simply abandoned their belongings and take them to the dump?
Answer 3: Ordinarily, once the 60 day notice expired (assuming you properly served a proper written notice), and the tenants remained in possession, the tenants were ‘unlawfully detaining’ the house and you could file the eviction lawsuit. However, from your facts, it may not have been clear as to the termination date, because it sounds like the actual termination notice may have gotten ‘muddied’ by the extension and negotiations. Given that, the first thing you should seek to establish is whether the tenants have clearly moved out (even if they left stuff behind). You could contact the tenants and have them state in writing whether they are still claiming possession of the premises, by notifying them that they are responsible for the daily rental value if they claim they still live there, and you may have to proceed with your eviction action.
If the tenants confirm they have moved, but left stuff behind, they have 18 days after you mail them a written “Notice of Right to Retrieve Abandoned Property” to remove their stuff (working with you as to the schedule to retrieve the possession). If they fail to do so and the sum value of the stuff is worth less than $700, you can dump it at the end of that 18 day period (or keep it). If the property is valued at over $700.00, you have to go through an auction process that requires certain specific steps that you would need to learn. In either case, you can charge them the storage value of the part of the house their stuff occupied for each day they left it there as a condition of allowing them access to remove their possessions. However, often it is more cost-effective in terms of time and aggravation to simply waive the storage fees if the former tenants will agree to release any claims they may have from the tenancy and promptly remove all their belongings and leave the unit cleaned of debris. [AOA’s form #145 – Notice of Belief of Abandonment has all the forms necessary along with complete instructions. Members may download this for free at www.aoausa.com]
Question 4: I have a Richmond duplex building with an upper unit and lower unit. There is a sensor light originally set up above the main entrance gate which is using electricity from the upper unit. I didn’t disclose that the sensor light is using their electricity, because I thought it was not for the common area entrance and belonged to their entrance. However, their entrance includes the entrance into the lower unit apartment. I became worried that many years later the upper unit tenants will make a claim for this sensor light electricity cost and complain that the landlord didn’t disclose this. What I intend to do is disclose this fact to tenant in the upper unit, and reimburse the estimated cost of the electricity (which is based on the PG&E bills from my other building which had the same situation). The estimated cost is about $6 per month. I will also send a change of terms of tenancy to the tenant to notify the tenant that he will be responsible for this electricity cost going forward. What do you think about this solution?
Answer 4: According to Civil Code Section 1940.9, in such situations, the proper course is to enter a mutual written agreement with the tenant for payment by the tenant of the cost of the electric service provided through the tenant’s meter to serve areas outside the tenant’s dwelling unit. Alternatively, you can make other arrangements, as are mutually agreed in writing,
for payment for the electric service provided through the tenant’s meter to serve areas outside the tenant’s dwelling unit, which would basically mean either reducing the rent by the estimated amount or reimbursing the tenant each month. If the lease is month to month, however, you can initiate a change of terms of tenancy to achieve your goal of making the tenant responsible for this charge going forward.
Question 5: I own a duplex in San Francisco, covered by the local rent control law, and have decided to sell it. The real estate agent asked for a set of keys, to show the place. I live in the Sacramento Area and have never had a set of keys to the units. One of the tenants refuses to provide keys to me or make a duplicate for me. How can I handle this problem?
Answer 5: This is a regular issue, and one that occasionally has no clear answer. The applicable state law that governs entry to a tenant’s unit – Civil Code 1954 – provides the rules on when and why a landlord may enter a tenant’s unit, but offers no guidance on what rights a landlord has when a tenant refuses to provide a key for the landlord’s use. However, depending on the reason the landlord does not have a key, the remedy may be fairly simple.
If, for example, if the tenant changed the lock, rendering the landlord’s key unusable, and there is a standard lease provision which contains language typically stating, “Except as may be provided by law, no repairs, decorations or alterations shall be done without Owner’s prior written consent,” the tenant would likely be in violation of that lease provision, as changing the locks should be considered an alteration. In that case, the landlord could serve a three day notice to cure the violation, by either changing the locks back to their original condition, or providing the landlord a copy of the new key. The tenant’s failure to comply would likely be deemed grounds to terminate the tenancy, though it should be noted that under the recent San Francisco rent ordinance amendments known as Kim 2.0 (described in the November edition), whether a failure to provide a key would be deemed “substantial” is uncertain. However, as previously noted, this is arguably not significantly different from existing law, as generally, a lease violation had to be ‘material’ in order to justify an eviction. However, that change adds some uncertainty to the issue.
If the lease does not contain such a provision, and is month to month, or there is no written rental agreement at all, then under state law the ‘alterations’ provision can be imposed on the tenant by service of a notice of change of terms of tenancy. However, the SF rent ordinance also prohibits evictions based on unilateral changes to the rental agreement, and while that provision has exceptions for changes either approved by the tenant or required by law, it would not seem that either exception would be applicable. However, there would certainly be no downside to requesting the tenant’s cooperation in providing a key to the unit, explaining to the tenant the benefit to the tenant if the owner or emergency personnel needed to access the unit in an emergency without having to break in.
However, if that logic does not gain the tenant’s cooperation, then the issue becomes one of a legal battle of wills. A landlord might, for example, notify the tenant of an intent to enter, with proper notice and for a proper purpose, and if the tenant is not present at the appointed time, the landlord could enter through the services of a locksmith, who might be able to make a copy of the key to the unit lock and then provide the tenant with the new key. While I believe there are attorneys who would suggest the landlord could have the locksmith change the lock, I think this is an unnecessary risk of litigation, with the tenant accusing the landlord of an illegal lockout. Given there is a chance the tenant could arrive home without the new key having been provided, that claim could have merit.
While it seems obvious to any landlord why he or she needs a key, apparently that conclusion is not so apparent to the legislative bodies, as, again, there is no ‘law’ requiring the tenant to provide a key, even if the tenant changes the locks. However, even under San Francisco rent law, if the tenant fails to comply with a proper notice of intent to enter, that failure constitutes a ‘just cause’ for eviction.
Question 6: Our Alameda tenant was allowed one pet with a deposit. She had a one year lease which has expired. She is now month to month. Her cat died. She recently got two new cats and did not ask our permission. We prefer no pets at all. Do we have to let her have another pet, or both cats? Also, can we increase of deposit?
Answer 6: If the tenant did not comply with a lease requirement regarding having advance permission to have a pet (the two new cats), she would be in violation of her lease, and a three day notice to cure or quit would be appropriate. She may respond to such notice that she believes you did agree, or that she has a disability requiring a ‘comfort pet,’ or some other excuse. However, until you make a formal demand that she remove the pets, she is not obligated to do so. You could, of course, always just call her and discuss your concerns, and perhaps reach some compromise that you are both satisfied with. However, until she is provided a formal three day notice to cure or quit (again, assuming the month to month lease contains that provision), you cannot compel her to remove the cats.
As to a deposit increase, given that she is month to month, you can increase the deposit requirement by proper notice to an amount not exceeding twice the monthly rental amount, or three times if the unit was provided furnished.
Ultimately, given that the town of Alameda does not have an eviction control law, you are generally permitted to terminate the tenancy on proper notice, as long as you are not doing so to retaliate against the tenant for exercising her legal rights. For example, if she was able to establish that she had a doctor’s recommendation that the pets were necessary for her physical or mental health, then the ‘reasonable accommodation’ provision may require you to allow the pets, against your standing policy, and a notice of termination under those circumstances could be ruled retaliatory.
Question 7: Our Oakland tenant deducted rent to cover her determination of “loss of use of stove” for 21 days at $40 per day, or $840. We offered her $200 off the monthly $2,500.00 rent. The tenant responded back with $660 off the rent. We want to accept the check and give the tenant a 3-day notice for the balance with a note that if not paid, it will be deducted from her security deposit. Can we do this?
Answer 7: If the tenant does not pay the full amount of rent due, she is generally liable for the difference, which can be enforced through a three day notice to pay or quit (whether to enforce a three day notice by eviction, or elect to deduct the amount from the security deposit is a tactical choice). The tenant may have a defense to the notice, based on the absence of a housing service that is included in the rent. However, given the nature of the dispute, I recommend that you and the tenant either submit the value of the stove to the rent board for their decision as to the value of the inconvenience, or you and her sit down and try to work it out. It is not the kind of dispute that should escalate to unlawful detainer or three day notices. Somewhere, there is a reasonable compromise of the two positions.
Question 8: I have a month to month tenant who is just generally a jerk; constantly arguing with me, my other tenants and he pays his rent two to three days late most of the time. How do I get him out? Should I just raise his rent from $1,250 to $1,750 (which is close to market rent anyways)? But then I still have him in the building if he agrees. Or should I do an unlawful detainer? Do I have grounds to do so? What’s the best way to get rid of a problem tenant who is still somewhat following the rules?
Answer 8: If your tenant is month to month and not covered by a rent control ordinance that limits the grounds for terminating a tenancy, you can terminate the tenancy on a 30 day notice, or 60 day notice if the tenant has been there over a year. The rent increase may have the desired effect of forcing the tenant to vacate. But under either approach, however, whenever you have a ‘complaining tenant’, the tenant may seek to claim you are ‘retaliating.’ It depends on what the tenant been arguing about as to whether he could credibly claim retaliation if you terminated his tenancy (or dramatically increased the rent), and you may need a personal legal evaluation of the facts to make that determination.
NOTE: In the December edition of the Q&A column, I mentioned that the San Francisco Rent Board would be meeting to consider amendments to implement the “Kim 2.0’ ordinance amendments. The hearing date was continued, and after a public hearing on December 3, 2015, the Rent Board Commission approved the proposed amendments to Rules and Regulations Sections 6.15A, 6.15B and 6.15D and added Section 6.15E, all to be effective as of December 4, 2015.
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 www.beckmanblairllp.com