Below are questions asked by rental property owners regarding California rent control laws followed by answers provided by Attorney Richard Beckman.
Question 1: When does Assembly Bill 12 go into effect in California? How does it affect landlords and is the bill retroactive? Will landlords have to return security deposits that they already hold that are over the new amount allowed to be held?
Answer 1: AB 12 was approved by the Governor October 11th. It takes effect July 1, 2024. At that time, it will change the existing law (which allows a landlord to require up to two month’s rent, in the case of unfurnished residential property, or up to three month’s rent, in the case of furnished residential property, as security deposit (in addition to any rent for the first month paid on or before initial occupancy), by limiting the amount to one month’s rent, regardless of whether the residential property is unfurnished or furnished, in addition to any rent for the first month paid on or before initial occupancy.
However, it exempts ‘mom and pop’ owners from that restriction and allows those owners to demand up to two month’s rent as security, unless the prospective tenant is a service member, who may not be required to pay more than one month’s rent as security. The ‘mom and pop’ category means the landlord (1) is a natural person or a limited liability corporation in which all members are natural persons and (2) owns no more than two residential rental properties that collectively include no more than four dwelling units offered for rent.
Nothing in the Act indicates any impact on existing deposits or deposits taken prior to the July 1, 2024 effective date of the Act.
Question 2: How can I prevent a delinquent tenant from putting partial payments into my rental account through Zelle, (or direct deposit into my account at a bank branch) – thereby nullifying a 3-day notice to pay or quit? Zelle said they cannot block a payment – I have to block my linked-phone number and or email, which would force me to change payment receipts from all of my other tenants. The bank – Wells Fargo – said all they can do is to enter a note into the file, which a teller will only see if they intently look for it. Can the 3-day notice be modified to say no partial payments will be accepted, they will be returned? If they put in a partial payment, can I return it in order to not nullify the 3-day?
Answer 2: The issue of accepting any rent payment while a notice is pending, or has expired, is a common one. The basic rule is that acceptance of rent (even less than the amount due) results in the withdrawal, or waiver, of an outstanding notice.
There is a case that specifically addresses your concern, though it involved a 30-day notice of termination. To summarize, the court held that the tenant’s attempted tender of rent was not accepted by the landlord, who did what he could to return it, thereby avoiding the waiver of the notice. The court’s ruling is set forth partially below, followed by some ‘best practices’ recommended by the leading Landlord Tenant treatise (guidebook on legal issues).
“Tender of rent and its acceptance by the landlord within the notice period probably results in an implied withdrawal of the landlord’s notice to terminate the periodic tenancy provided the rent accepted is sufficient to cover a period beyond the 30-day period….This situation is different from the case where the tenant is in default for his failure to pay rent and has been served with a notice to pay the rent due or “quit” the rented premises. In that case, the tenant can cure the rent default by tendering the rent due and the landlord cannot refuse the tender in response to the alternative notice.
“In our present case, the defendant contends that since the plaintiff-landlord held the defendant’s checks for the February and March rent, which he had given to plaintiff before he had received the notice to terminate, there was an implied withdrawal of the termination notice. The plaintiff presented evidence of various attempts on his part to return the rent checks to the defendant. Each time the checks were returned to the defendant, he would physically leave the checks in one of the plaintiff’s offices during the nonbusiness hours of the plaintiff. Defendant had access to these offices of plaintiff because the premises occupied by defendant as plaintiff’s tenant provided open entry to plaintiff’s offices. The plaintiff never cashed the rent checks and kept possession of them because he experienced difficulty in returning them to the defendant. The rent checks were eventually returned to the defendant by slipping them under the defendant’s door during the notice period. This evidence is sufficient to support the implied finding of the trial court that there was no acceptance of the tendered rent during the notice period. If the rent was not accepted by the landlord, there was no waiver of plaintiff’s termination of defendant’s month-to-month tenancy, nor was there an implied withdrawal of the notice of termination.” Highland Plastics, Inc. v. Enders (1980) 109 Cal.App.3d Supp. 1, 11–12 [167 Cal.Rptr. 353, 359–360]
As a safeguard, landlord counsel prosecuting a residential tenancy unlawful detainer should send written notice to tenant defendants who have tendered rent during pendency of the action that the landlord has not accepted the payment and does not by holding it for any period of time (uncashed) intend to form a new tenancy; the notice should advise defendants that the uncashed check is being retained solely as proof of the debt. (In commercial tenancy UDs, the tenant defendant should be advised in advance that acceptance of a partial rent payment pending the UD does not constitute a waiver of the landlord’s rights.)
And I see no reason not to include an additional paragraph in a 3-day notice stating that partial payment will not be accepted, and will be returned to the tenant, or, if return of the payment is not practical, held by the landlord as evidence of the non-compliant payment, but in no event shall the lessor be deemed to have accepted rent with an express statement of an intention to do so.
Question 3: We have a tenant who has consistently received noise complaints from the downstairs neighbor. The tenant is accused of having late night arguments and watching TV at excessive volumes past midnight, causing the downstairs tenant to lose sleep. I should mention that the previous downstairs tenant also complained about this, so we know there is validity to these claims. We have tried talking directly to the noisy tenant, letting them know that their behavior is disrupting the tenant below, and to see if they can stop. Despite acknowledging the issue and saying they will do better, the noise issues continue to happen.
We believe we need to move forward with a 3-day notice to cure or quit (disturbing the peace is one of the 13 allowed just cause reasons). What evidence do we need to supply with the notice? Will a log of the complaints suffice? Can we move forward with a 3-day notice to move out if any additional late-night noise complaints occur after the initial 3-day period, or does the process reset after a set period of time?
Answer 3: Generally speaking, you seem to be on a proper course in response to the stated facts. You just need to make sure any notice served on the tenant complies with the local ordinance that governs rental units, as they sometimes require specific language in the notice, with a copy to the local rent board (failure to comply can result in defective eviction case later). And yes, the more detailed your warning notice is (in terms of date, time and event), the better, as long as it’s accurate and can be substantiated by witnesses or other evidence.
It depends on your location (jurisdiction) whether the initial notice can be the notice that an unlawful detainer action is filed to enforce. For example, Oakland’s Just Cause for Eviction Ordinance requires (as more and more local rent control cities’ laws do) a ‘pre notice notice’ is required, which is a notice to the tenant that if the tenant fails to cure certain behavior, a “3-day notice to quit’ will follow, which will allow the lessor to file the unlawful detainer to enforce the notice via the eviction process.
It is usually a ‘case by case’ analysis of whether tenant conduct that initially complies with the ‘pre-notice notice’ but then, sometime later, repeats the offending conduct, requires a new ‘pre- notice notice’ or not. For example, Oakland’s regulations state that “Repeating the Same Nuisance, Waste, or Dangerous Conduct within 12 Months. The first time a tenant engages in conduct that constitutes nuisance, waste or is dangerous to persons or property within any 12 month period, the landlord must give the tenant a warning notice to cease and not repeat the conduct. If the tenant repeats the same or substantially similar nuisance, waste or dangerous conduct within 12 months after the landlord served the prior notice to cease, the landlord need not serve a further notice to cease, but may give a notice pursuant to Code of Civil Procedure § 1161 for the repeated conduct.
Question 4: I have a six month lease with a tenant. The tenant gave me a 30-day notice to move, and claims she is being harassed and intimidated by her ‘Ex’ and fears for her and two kids’ safety as the reason she needs to terminate the lease early. She said she is currently going through a nasty divorce. Can she move without paying for the rest of the lease?
Answer 4: If the tenant complies with the provisions of Civil Code Section 1946.7, she will be allowed to terminate an existing lease without liability for the remaining term. “A tenant may notify the landlord that the tenant intends to terminate the tenancy if the tenant, a household member, or an immediate family member was the victim of an act that constitutes any of the following:
(1) Domestic violence as defined in Section 6211 of the Family Code.
(2) Sexual assault as defined in Section 261, 261.5, 286, 287, or 289 of the Penal Code.
(3) Stalking as defined in Section 1708.7.
(4) Human trafficking as defined in Section 236.1 of the Penal Code.
(5) Abuse of an elder or a dependent adult as defined in Section 15610.07 of the Welfare and
Institutions Code.
(6) A crime that caused bodily injury or death.
(7) A crime that included the exhibition, drawing, brandishing, or use of a firearm or other
deadly weapon or instrument.
(8) A crime that included the use of force against the victim or a threat of force against the
victim.
The tenant must provide notice to terminate in writing, with evidence of the domestic violence attached to the notice. If notice to terminate the tenancy is provided to the landlord under this section, the tenant shall be responsible for payment of rent for no more than 14 calendar days following the giving of the notice, or for any shorter appropriate period as described in Section 1946 or the lease or rental agreement. The tenant shall be released without penalty from any further rent or other payment obligation to the landlord under the lease or rental agreement. If the premises are relet to another party prior to the end of the obligation to pay rent, the rent owed under this subdivision shall be prorated.
Notwithstanding any law, a landlord shall not, due to the termination, require a tenant who terminates a lease or rental agreement pursuant to this section to forfeit any security deposit money or advance rent paid. A tenant who terminates a rental agreement pursuant to this section shall not be considered for any purpose, by reason of the termination, to have breached the lease or rental agreement. In all other respects, the law governing the security deposit shall apply.
Question 5: I just rented an upstairs apartment in a 10 unit complex. I knew the husband had cancer and is not working. They passed screening, and after much discussion, I required he visit the apartment prior to final approval. They showed up with his oxygen tank and said he uses a full size oxygen tank for his one mile daily walk but uses a baby stroller to put it in. They asked for a place to store the stroller on the ground level which we provided. This is a very quiet senior complex and we discussed how he would enjoy the quiet etc. Week two of their residency, the five year downstairs tenant called in tears saying she feels like she is living in a hospital with all the beeping machines that wake her up several times a night. She is losing sleep and going crazy.
The upper tenants said they would try to work something out. Turns out he is on a bypass machine 24 hrs/day and it makes noise, beeps every time he takes it on or off which is frequently. I suggested she call the company and see if the machine can be silenced, she did and said they were closed (not sure if she meant closed for good or just when she called…). I found sound proofing panels on Amazon, reasonably priced, and suggested she purchase these to put the machine on and around it. I don’t know if she has. I suggested having him move to the other bedroom, but she said that wouldn’t work as he needs to be near the bathroom. I asked that they move the bed which is right over the downstairs tenant’s bed and they replied that would be inconvenient.
Two weeks have gone by and the downstairs tenant called again and said she is going crazy, there is machinery going all day, please help. I have sent the new tenant a letter asking if she had looked into the panels and requesting a time we can get together to discuss this. I also said she had not mentioned the medical equipment or that it beeps in the application process, if she had we could have discussed it. I also pointed out the section of the lease that says the tenant agrees to not disturb, bother, etc., others. At this point I do not see a solution other than asking them to leave and find a more appropriate setting but don’t know my legal rights. According to them this is necessary equipment for him to live.
Answer 5: That is a very difficult situation for all. The situation implicates a number of issues, between you and your two sets of tenants. The new tenants have a duty not to disturb other tenants, as you and the lease correctly note. However, when such disturbances are generated by life-saving medical equipment, obviously that implicates issues outside the normal ‘nuisance’ conduct, such as the state and federal rules regarding ‘reasonable accommodations’.
That said, however, it is still the duty of the upper tenant not to unreasonably disturb the lower tenant. I would make it very clear to the upper tenant that as sympathetic as you are to their situation, you still have a duty to the lower tenant to take some action to alleviate her breach of quiet enjoyment, and it would behoove the new tenants to do all they reasonably can to cooperate and assist in that effort. Your suggestions seem eminently reasonable, and the new tenants should engage with you in detail as to why those suggestions are not acceptable etc. In the end, and assuming the lower unit’s complaints are borne out by an independent base of evidence (e.g. recording of the level of sound that wakes her up etc.), the upper tenants may be faced with termination of their tenancy.
Question 6: Can my property manager go to small claims for me?
Answer 6: Probably. Small claims court appearances are generally limited to the plaintiff and defendant individually (CCP § 116.540(a)). However, the owner of rental property may appear through a property agent if the agent has been retained principally to manage the property (not just to represent the owner in small claims court) and the claim relates to the managed property. Similarly, the small claims rules allow an agent, management company or bookkeeper to appear for an HOA plaintiff (an association created to manage a common interest development).
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 510-548-7474; email [email protected] or by visiting the website www.bfc-legal.com.