Question 1: Our tenant of three years is complaining of mold. We have inspected but see no visual evidence of mold. He says that he uses a mold detection device and the reader says there is mold in the air. What plan of action is required of us?
Answer 1: As the owner, you always have a ‘duty of due care’ to your tenants, which means you must exercise reasonable efforts in whatever situation is presented. I know that sounds obvious, but it is often a subjective analysis, and not everyone will agree on what is ‘reasonable’ (which, in a worst case scenario, becomes the duty of a jury to decide).

However, with that in mind, one response would be to have a professional examination by a reputable mold inspection company and then evaluate the issue after you have their report. I don’t know what kind of mold detection device the tenant is using, but I would have the professional inspector review it and its results in preparing their report.

Question 2: A neighbor of one of our single-family rental homes contacted me about roots from a pine tree on our property damaging her cement fence. What are my legal responsibilities towards the roots and any damage caused?

Answer 2: Your situation is bit outside the scope of the Q&A forum, which is focused on issues between landlords and tenants. But generally, when the roots of a tree located on an adjacent property encroach on an owner’s property, the owner may remove the roots, but must act reasonably (there’s that concept again) or he or she may be liable for damages. One leading treatise provides the following case example:

The trunk of a tree was located entirely on one parcel of property but the roots of the tree encroached on the neighbor’s property. The neighbor severed the roots of the tree, which compromised the safety of pedestrians requiring the tree’s removal. The owner of the land on which the tree was located sued the neighbor for negligence, destruction of timber, and nuisance. There was a conflict in the evidence whether the owner’s property had suffered any damage by the roots. There was evidence that the roots were causing cracking in the neighbor’s walkway, but there were options other than severing the roots that would have remedied this situation.

The court held that although a landowner has the right to use his or her property for personal benefit, he or she is bound by principles of reasonableness and may not use his or her rights to infringe on the rights of others. The landowner does not have an absolute right to cut the roots of a tree located on adjacent property, and the landowner will be liable for damages if he or she acts negligently or unreasonably. The court held that the issue of the reasonableness of the property owner’s actions required an evidentiary hearing. For more on that topic, you may refer to Miller and Starr, California Real Estate 4th, 6 Cal. Real Est. §17:9 (4th ed.)

Question 3: I have eight one-bedroom apartments, with four units on each floor. I recently had someone move out after 25 years. I am having some work done on the apartment – painting, plumbing, new kitchen cabinets, electric, cleaning, new carpets, etc.

The tenant below this apartment sleeps during the day from 12 noon to 7 p.m. I have been stopping the noise at noon, but one day, the electrician was making noise, and the tenant says she was being disturbed. But I was there at the apartment and the worker was keeping the noise down. I do not want to have a war with this woman, and I want to handle it in a way that I do not get anyone upset. Her husband works at a hotel close by, and she said she can sleep there if I let her know my schedule. But, I am afraid she will be asking me to pay her hotel bill. Please let me know what your thoughts are. Thank you in advance for your reply.

Answer 3:  This is a classic case of the tenant’s rights to quiet enjoyment conflicting with the owner’s right (and often legal duty) to do unit maintenance or improvement. As with most such situations, the solution is best reached by recognizing the competing interests, and both sides applying a level of  compromise that will allow you both to avoid ‘going to war.’ For example, you could ask her if she would be able (and willing) to stay at the hotel at no charge for the period of the work being done. If so, and she is fine with that, then problem solved, assuming it is not a long term arrangement that she may sour on later. If she says she would have to pay for it, you would need to consider reimbursing her some or all of that expense, depending on the level of disruption.  It is impossible to say from your description whether a small claims judge would grant her a rent reduction or not, so the best course is to try to reach a mutually acceptable arrangement.

Question 4: The tenant is moving out before the lease ends and has agreed to pay 50% of the lease fee for a new tenant ($925.00). Can this amount be deducted from her security deposit or does she need to pay the amount separately?

Answer 4: Even if she agrees to have the amount deducted from her security deposit, I would have it paid separately and then account for her deposit according to Civil Code Section 1950.5. It will be ‘cleaner’ that way. It is an extra step, but it avoids the situation where the tenant later (correctly) accuses you of treating her security deposit in a way not permitted by that statute.

 Question 5: I am about to lease a single family home to a family. It has a tree fort. It seems sturdy and secure. The owner says he and another adult have been in there. Do I need to mention the tree house in the lease? I am concerned about liability.

Answer 5: This might be one for your insurance company to review. But, as discussed above regarding the owner’s duty of care to tenants and other person invited on the property, it would be prudent to have the treehouse inspected and signed off on, by either a private contractor or, perhaps more complicatedly, a city building inspector. But once it’s acknowledged as ‘safe,’ you could get the renter to sign a lease addendum that they if they use the tree house, they do so at their own risk, and agree to indemnify you for any claims related to its use by any tenant or guest.

Question 6: If the water heater was non-functional for 10 days, how much can the tenant withhold in rent? Also, if the landlord gives 60 days’ notice to vacate, does the tenant have to give 30 days’ notice if the tenant decides to leave early? If not leaving earlier than 60 days, does the tenant have to give any notice to vacate?

Answer 6: This question could have made three separate ones, but here goes. As to a non-functional water heater, there is no set amount of rent deduction a tenant might be entitled to, but whatever two reasonable people agree on is the best option. You might ask yourself, what would it be worth to you, and start there as an offered amount to the tenant. As with most of these kinds of conflicts, there just is no pat answer in terms of cost of loss of use of the rental unit, so an agreed amount is always the best solution.

And yes, the landlord must give 60 days’ notice to vacate if the tenant has been there more than a year, but the tenant need only give 30 days’ notice if the tenant decides to leave early. If the tenant stays the entire 60 days, the tenant does not have to give any notice to vacate – he or she just moves out.

Question 7: If the rental house is to be sold, does the tenant have the right to stay till 30 days after official escrow is filed?
Answer 7: The opening of escrow can affect the amount of notice a tenant is entitled to before they can be lawfully compelled to vacate the property. However, the simple event of an escrow being opened (I think what you refer to as ‘filed’) does not trigger that legal obligation – only the proper service of a proper notice of termination tenancy triggers that obligation. Under state law, and not including any issues that are injected if the rental unit is subject to a local eviction control law like those in Berkeley, Oakland San Francisco and so on, the tenant is entitled to a minimum 60 days of notice of termination of tenancy. But one exception to the 60 day notice requirement is set out below, as part of Civil Code Section 1946.1 – (d) Notwithstanding subdivision (b), an owner of a residential dwelling giving notice pursuant to this section shall give notice at least 30 days prior to the proposed date of termination if all of the following apply:

(1) The dwelling or unit is alienable separate from the title to any other dwelling unit (i.e. a single family home or condominium).

(2) The owner has contracted to sell the dwelling or unit to a bona fide purchaser for value (i.e. not your family member unless he or she is paying fair market value), and has established an escrow with a title insurer or an underwritten title company.

(3) The purchaser is a natural person or persons (i.e. no LLCs or corporations).

(4) The notice is given no more than 120 days after the escrow has been established.

(5) Notice was not previously given to the tenant pursuant to this section.

(6) The purchaser in good faith intends to reside in the property for at least one full year after the termination of the tenancy.

Question 8: I evicted two tenants that did damage. They have jobs so I think I can collect in small claims. However, I cannot find their new address, but they are still in the town. Will the post office provide a forwarding address, or can I mail to the last known address before they moved into my place? I know mail service can work. Thank you.
Answer 8: The post office will forward mail to a customer who has provided a forwarding address, of course, though I don’t know if the post office will provide anyone with that forwarding address. However, it would not hurt to inquire, and if you are provided it, then you can proceed to contact the former tenants directly, and arrange for the required personal service of any small claims lawsuit you file. If you can’t get their address that way, you might want to invest in a relatively inexpensive ‘private investigator’ of the online variety to get a current address.

It is not clear what you mean when you say “I know mail service can work.” A lawsuit, even one brought in small claims court, requires a proper method of service of the summons and complaint, which does not include regular mail. Below are the small claims court’s directions on service by mail.

 Service by Certified Mail by the Court Clerk

You can pay the court clerk to mail your claim to the person you are suing by certified mail. This can be very convenient and the fee is low. But this type of service can also be very unreliable. The court will probably not accept it and will make you serve again (with personal or substituted service) if:

  • The person you are suing or the person’s agent for service does not sign the certified mail receipt with his or her complete name;
  • The judge cannot read the signature on the certified mail receipt and cannot tell who signed it; or
  • Someone else signs the receipt.

If mail service is not properly completed, you will need to arrange for personal service on the defendant, by the county sheriff or (most likely) a private licensed process server. While anyone over the age of 18 and not a party to the case can serve the summons and complaint, the declaration of service of a sheriff or licensed process server provides the court the maximum assurance the defendant was in fact served in case he or she fails to attend the hearing. If the defendant fails to appear, and was properly served, and presuming you have your evidence of the claim, the court will enter a default judgment against the defendant, which will include the costs of the sheriff or process server.

Question 9: My tenant wanted to use part of her security deposit for rent due. I explained that the security deposit was not intended for rent. Was I right?

Answer 9: You are right. If the tenant tries to apply the security deposit to her last month’s rent, and as long as their was no reference in the lease to part of the deposit being called ‘last month’s rent,’ then a 3-day notice to pay or quit would be appropriate to force payment, or early termination of the tenancy. But if the lease states that part of the deposit is for last month’s rent, then the tenant may so apply it.

UPDATES and CORRECTIONS:

I received some comments from an informed reader about my response in last month’s edition to Q&A 3, and wanted to address the concern expressed by the reader, which I do below the reprinted Q&A:

Question: If I receive multiple applications for an offered unit, can I pick the best of the bunch? Does the time order in which I received the applications matter?  If it comes down to two couples who are both well qualified, and the couple that doesn’t get the property asks me why, what do I have to tell them?
Answer 3:  You are entitled to select the most qualified applicant from multiple applicants, regardless of the timing of their application, particularly if you told all applicants that the application period was going to be open a certain period. The permitted selection criteria would be based on the income, credit history, employment history and housing history of the various applicants. There should be no consideration of their personal attributes, i.e. race, age, religion etc. (even, surprisingly, their appearance). If you have two evenly matched applicants, of course someone must get rejected, and in that case, unless there is some other reason, you might go with the first in time applicant. If the rejected applicant inquires, and you did not select the first-in-time applicant, the safest response would be to keep it simple, as in ‘the successful applicant’s qualifications were deemed the best overall.’

 Comment: The reader’s position was that it would never be wise to not select the first qualified applicant. While that is almost certainly the ‘safest’ course, those qualifications can be somewhat subjective. For example, would there be any discriminatory result if the owner received a ‘qualified’ applicant (in the sense that the applicant’s income met the minimum requirement, the applicant did not have a negative credit or housing history and had legal employment or other verified source of income), but that shortly after it was received, the owner received and then chose a ‘more qualified’ applicant (higher income, longer verified employment and rental history)? I don’t believe so, though that is a pretty ‘safe’ example. The tougher case is where the first qualified but not accepted applicant is of a certain category (such as age, race, religion, family size) that would provide an argument that the selection was not in fact based on the objective criteria allowed (income, rental history etc.), but rather the subjective basis that represents prohibited discrimination (race, religion etc.).

There is always the risk that such a claim can be brought, but a similar claim could be brought by other rejected applicants whose objective criteria were ‘better’ (higher income and longer history etc.), but who claim they were rejected in favor of the more compatible applicant (e.g. the one who most closely mirrors the owner’s personal characteristics). In other words, there is no guarantee that a rejected applicant will not try to assign some discriminatory intent to your selection process. In the end, the owner has to make a careful decision, applying the approved criteria, and hope for the best.

Richard Beckman, of Beckman Feller & Chang P.C., has been practicing landlord-tenant law for over 26 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 rbeckman@bfc-legal.com or by visiting the website www.bfc-legal.com.