This article was posted on Friday, Jan 04, 2013

Question 1: A tenant recently got a DMV handicap plate and he requested a handicap parking space. What are the requirements for the landlord to provide him with a handicap parking space? He has a carport parking space presently. The apartment complex is 17 units and has 25 parking spaces.

Answer 1. Your question involves two separate issues – the requirement regarding providing handicap parking spaces generally, and providing a handicapped tenant with his or her specified handicapped space. I would refer you to your local county planning department, or a private certified access specialist (CASp inspector), for the current requirements regarding providing handicapped parking spaces generally. As for a tenant who is handicapped and requests a specific spot, your obligations will depend on the tenant’s demonstrated need for a particular spot. One federal case in  New York (applying federal law that would apply in California) held an apartment owner liable for failing to provide a disabled tenant with a parking space near the elevator, as she had requested. The tenant’s request was supported by medical testimony of her need for such parking to accommodate her medical condition. The landlord’s failure to provide this requested accommodation was deemed a violation of the Americans with Disability Act’s requirement to provide reasonable accommodations to a tenant where such accommodations are necessary to afford the tenant the same opportunity to use and enjoy the rental unit as a non-disabled person, where the accommodation can reasonably be provided. In your situation, there is not enough information to determine whether you are obligated to grant a tenant request for a specified parking space.

Question 2:  I have a tenant who blasts his music in the parking lot during the day from his car. When I ask him to turn it down he says it’s not 10:00 p.m. yet. Should I change my house rules and make the time earlier for noise control especially since it gets dark earlier and many people including neighbors retire early?

Answer 2:  Just because the house rule states ‘quiet time’ begins at 10:00 pm, a tenant who commits a noise nuisance before that time is still in breach of the lease provision against nuisance, or against the state statute that prohibits nuisance. Your remedy is a simple reminder to the tenant about his or her obligation to not disturb the neighbors, or, if the problem persists, a three day notice to cure the nuisance or vacate the premises, which can have a very good effect on tenants. If the tenant persists with the noise pollution even after having received a three day notice, you can seek to enforce the notice by an unlawful detainer lawsuit after the three day notice expires. If the unit is not in an ‘eviction controlled’ city, you can also serve a simple notice of termination if the tenant is ‘month to month.’

Question 3: I invested in a fence with the owner next door. He was reluctant to share the cost of a division fence but after two years of letter writing and getting legal advice he agreed. Recently, someone kicked in one of the boards of the fence, and it’s obvious that the damage came from his side. He wrote and said I can’t prove that their tenants are responsible, and  that it could have been a stranger that did it. He did the same thing last year when a board was kicked loose by one of his tenants. What can be done about this? How can I hold him accountable for the damage caused by his tenants?

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Answer 3: Boundary fence disputes are generally fact specific as to the issue raised, and the respective neighbors’ rights and remedies.  However, in general, fences between neighboring parcels – division fences – are regulated by statute, and absent an agreement to the contrary, both sides are equally responsible to maintain the fence (unless one parcel owner elects not have his land fenced at all, in which case the maintenance and other cost of the fence is the sole responsibility of the party who erected it). However, it should be noted that in order to qualify as a division fence, the fence must be on the boundary between the two parcels. If it is completely on one owner’s land, it is not a division fence. As to your specific question, if the division fence is damaged by someone, that person is responsible for repairing it. If it is clear his ‘side’ is responsible, he needs to own up to it, or you may need  a small claims judge to make him own up to it. However, for one board, or two, it would seem a small claims trial should not be necessary. However, that is your best option if you cannot get a satisfactory response from your neighbor.

For your consideration, the governing statute, Civil Code Section 841, provides: Coterminous owners are mutually bound equally to maintain:

  • The boundaries and monuments between them;
  • The fences between them, unless one of them chooses to let his land lie without fencing; in which case, if he afterwards encloses it, he must refund to the other a just proportion of the value, at that time, of any division fence made by the latter.

Question 4:  What are the rules when there is marijuana smoking within the unit? The tenant smoking it says he has a medical marijuana card. Am I legally obligated to allow him to smoke in the unit? I said that all smoking needs to be 15 feet away from the building. Should I tell him he needs to smoke his marijuana out on the sidewalk?   

Answer 4: The issue of what to do with a marijuana smoking tenant with a medical marijuana card is one of the thorniest around today. It involves an analysis of the concept of ‘reasonable accommodation’ if the tenant is deemed disabled, and an analysis under both state and federal law (and occasionally, local law, particularly if the unit is in a rent controlled location). It also involves issues that may be raised by the rental agreement, as well as whether there are complaints by other tenants or neighbors as to the marijuana smoke. In short, it is not a question that is amenable to a short ‘answer’ in this type of forum. However, if you are receiving complaints from other tenants about the smoke from the unit, then you would likely need to take some action, whether it be amending or clarifying the lease to prohibit smoking of any kind inside the unit, or perhaps working with the tenants to limit smoking inside to medically approved marijuana, but only if it can be done in conjunction with an active smoke-filtering machine, so that there is little if any trace of the smoke they exhale.

Question 5: We are renting out one unit of our duplex to two persons. They both signed the lease over a year ago. Now, one tenant has turned in a 30-day notice. The other said she wants to stay, but will need to have another friend room with her. They are currently more than a month behind on rent. Should we just give them both a 60-day notice, even though one already gave her 30-day notice? Or can we consider the 30-day notice, as applicable to both of them?

Answer 5: Assuming the one year lease has expired and is now ‘month to month’, and the duplex is not in a rent-controlled city, you basically have all options available, from agreeing to a replacement tenant, to agreeing to just the one remaining tenant, to serving a three day notice for nonpayment of rent, to serving a 60 day notice of termination. As to whether one tenant’s 30 day notice is binding on the other, probably not (without seeing the lease and the notice, I cannot offer a more definitive answer). However, again, if you wish to terminate that relationship, you are basically legally entitled to do so (absent some other facts that might complicate the matter such as a recent request for repairs, or other issues raised by the tenant who could conceivably then claim she was being retaliated against when you serve a termination notice).

Question 6: My tenant started moving and gave notice in August he would be out by September, 2012. Then he said he would be out by October. There is still furniture and other items in the house, and an old car in garage. What are my options? And if I have to take legal action, what is the approximate cost, and should I use a large firm or small firm?

Answer 6: 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 $300 (Note: this figure increases to $700 as of January 1). If it is worth over $300 (or $700.00 after January 1), you must go through an auction process that basically requires that you publish notice of the date, time and place of the auction, list the description of the abandoned items, and publish the notice in a newspaper at least twice, with a week between each publication (if you need to do the auction process, you should carefully review the requirements to be sure you comply, as a defectively held auction could expose you to liability to the former tenant for conversion of his property).

Removal of an abandoned automobile is handled separately from personal property items, and you should contact your local police department about their procedure regarding 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, the fees for legal services vary from firm to firm, but if it’s just the notices mentioned above (Notice of Belief of Abandonment, or Notice of Right to Reclaim Abandoned Property), I would estimate around $300.00 for the notices, and the estimated cost for a non-contested eviction is about $800-$1,000.00 in legal fees and about $500-600.00 in court costs. As for firm size, in my experience, smaller firms generally are less expensive than larger firms, generally speaking.

Question 7: How long does a landlord have to present a claim to a past tenant for damage that was not found at the time of the walk-through? The tenant turned over the the keys October 2, and tenant was issued a refund check for the full amount of his security/cleaning deposit. Damage to areas covered by the tenant’s belongings during the walk-through was found after the tenant moved. Does the owner have any recourse?

Answer 7: 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.

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 415-495-8500; email [email protected] or by visiting the website

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