This article was posted on Saturday, Feb 02, 2013

Question 1: We had a tenant break his 12-month lease and move out after only one month. We sent a letter explaining he must pay rent until we find a suitable replacement and received a letter back from his attorney stating that since the gentleman’s income comes solely from Social Security he is considered “judgment proof”. Is this true?
Answer 1: Yes, what the lawyer wrote is correct. According to the Social Security website, a creditor may not attach or garnish or otherwise seek to apply a social security recipient’s benefits to the satisfaction of any debt, including but not limited to one arising from breach of a lease. Specifically, according to the government website, “If a creditor other than the federal government tries to garnish your Social Security benefits, inform them that such an action violates Section 207 of the Social Security Act (42 U.S.C. 407). Section 207 bars garnishment of your benefits. It can also be used as a defense if your benefits are incorrectly garnished. Our responsibility for protecting benefits against garnishment, assignments and other legal processes usually ends when the beneficiary is paid. However, once paid, benefits continue to be protected under section 207 of Act as long as they are identifiable as Social Security benefits.

Question 2: Am I required to have an on-site manager for a 15 unit apt. building? Or any size?
Answer 2: No, you do not have to have an on-site manager for a 15 unit apt. building, but you do need to post a notice in a building of more than four but less than 15 units notifying the tenants how to locate you. An on-site manager is only required for buildings with 16 or more units.

According to the California Code of Regulations, Title 25, Article 5, Section 42: “A manager, janitor, housekeeper, or other responsible person shall reside upon the premises and shall have charge of every apartment house in which there are 16 or more apartments, and of every hotel in which there are 12 or more guest rooms, in the event that the owner of any such apartment house or hotel does not reside upon said premises. Only one caretaker would be required for all structures under one ownership and on one continuous parcel of land. If the owner does not reside upon the premises of any apartment house in which there are more than four but less than 16 apartments, a notice stating his name and address, or the name and address of his agent in charge of the apartment house, shall be posted in a conspicuous place on the premises.”

 Question 3: Is there a non-smoking ordinance on rental premise in the City of Berkeley?
Answer 3: Currently, based on my research, there is no ordinance in Berkeley prohibiting smoking inside one’s rental unit. There are restrictions applicable to common areas of a multi-unit building where employees of the building owner work, since California and Berkeley both mandate a non-smoking environment for employees. Of course, the building owner may prohibit smoking in any common area of the building, and it is generally recommended that such a policy be employed. There have been recent cases in which  the lessor has potential liability to non-smoking tenants who claim that second-hand smoke from other tenants in common areas caused them injury (usually via some sort of aggravated asthma condition). As to new tenants, you can prohibit smoking in the rental unit. As to existing tenants, a unilaterally imposed ban on smoking inside the tenant’s unit may represent an unenforceable lease provision, such that any action against a tenant in that regard should be the subject of consultation with your legal consultant or the Berkeley Rent Board.

Question 4: Is the eviction notice requirement still 60 days in California? And does an eviction notice have to be served by a professional?
Answer 4: The length of notice of termination varies, depending on the circumstances. If the tenant has occupied the unit less than one year, the notice period is 30 days. If the tenant has been in possession more than one year, the notice period is 60 days. If the tenant is in a property that was foreclosed on, a new law that is slated to take effect March 1, 2013 will require a 90 day notice (which federal law already requires in some cases).  Section 8 tenancies also require a 90 day notice. Of course, there are certain termination notices that only require three day notices, but for the general termination of a tenancy, the above times apply.

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As to who can serve the notice, anyone over the age of 18 can serve the notice, including the property owner, though there are legal benefits to having notices served by a licensed process server.

Question 5: Are we obligated to notify potential tenants that the prior tenant died in the unit (from natural causes)?
Answer 5: If a prior occupant of the rental unit died in the unit within the last three years, the owner or the owner’s agent must disclose this fact to a prospective tenant when the tenant offers to rent or lease the unit. The owner or agent must disclose the manner of death, but is not required to disclose that the occupant was ill with, or died from, AIDS. However, the owner or agent cannot intentionally misrepresent the cause of death in response to a direct question.

Question 6: How long does a landlord have to present a claim to a tenant who has moved out and has had their security deposit returned when damage that was not found at the time of the walkthrough?

Answer 6: Returning the security deposit is not a waiver of your right to assert a claim against the former tenant for damages to the unit beyond normal wear and tear, or unpaid rent, or other sums for which the former tenant may be responsible. The usual timeframe for bringing claims is based on the statute of limitations for contracts – two years for breach of an oral contract, and four years for breach of a written contract.

Question 7: The tenant started moving and gave notice in August he would be out by September. Then he changed it to October. The rental unit still has property inside and there is an old car in garage. My questions are what can I do, what approximately might be the cost, and should I use a large firm or small firm?
Answer 7: If the tenant still claims possession, then you may need to either do a Notice of Belief of Abandonment, or an eviction lawsuit, to confirm that you are legally entitled to recover possession of the premises. If the tenant has made it clear he’s ‘out’, by, for example, returning the keys to you, then the issue is solely one of ‘abandoned property,’ which is handled by sending a Notice of Right to Reclaim Abandoned Property to the tenant at his last known address, and if he doesn’t act to reclaim that property within 18 days after the Notice is mailed, you may dispose of it by either throwing it away (or using it yourself) if the entire collection of items is reasonably estimated to be worth less than $750. If it is worth over $750, you must go through an auction process involving publication of notice of sale and you should get further information on that process if you find yourself in that situation.

Removal of an abandoned automobile is handled separately from personal property items, and you should contact your local police department about notice of an abandoned vehicle, and the department should be able to assist in removing the vehicle to an impound location and disposing of it according to abandoned vehicle procedures.

As for the cost – if it’s just the notices above, I would estimate less than $300 for those notices, but if you are required to file an unlawful detainer, the estimated cost for a non-contested eviction is about $800 in legal fees and about $500-600 in court costs. As for firm size, in my experience, smaller firms generally are less expensive than larger firms, generally speaking.

Question 8: My onsite manager wants to send a letter to all tenants stating that unsupervised children are not allowed outside to play because of their reckless behavior and disregard of the elderly, as well as they seem to destroy and vandalize the property.

Answer 8: I don’t exactly see a question, but I assume you are wondering if the letter your manager wants to send is somehow a concern. I think the answer is, almost certainly. I had a case recently in which the property manager (and the owner as well) was sued for discrimination based on treating tenants with children differently, including posting notices that the children could not play outside unattended. It’s a complicated area, not capable of a thorough discussion here, and you should seek a more thorough understanding of the rules covering this issue before taking such action, which you might be able to get from the your legal consultant, the California Dept. of Fair Housing, or non-profit legal aid groups that specialize in this area.

 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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