This article was posted on Saturday, Sep 15, 2012

Question 1: Can a landlord get insurance against tenants failing to pay the rent?
Answer 1: While this question is really best submitted to your insurance agent or broker, I was recently contacted by an insurance agent letting me know of a program in California which provides limited coverage to landlords in the event they have to evict the tenant or the tenant abandons the premises during the lease term. While I did not discuss details of the program, it is my understanding that for a premium payment based on the amount of monthly rent, the carrier will reimburse the insured landlord a certain amount for eviction expenses, and pay up to six months of rent. I do not have any experience with the policy, but believe it could be useful for landlords to know about, and investigate if interested.
On a related note, I would also suggest to every landlord that he or she confirm with their current agent that their policy includes coverage for ˜wrongful eviction.’ While the ˜heyday’ of wrongful eviction lawsuits against landlords ended with a court decision several years ago in which the court determined that a landlord could not be sued for wrongful eviction for serving a notice of termination and an eviction lawsuit, a recent state legislative effort sought to override the court decision and reinstate a tenant’s right to sue the landlord for serving the termination notice or filing the unlawful detainer. While that effort (AB 934) died on the Assembly floor, it had passed the Judiciary Committee 7-0, which means it may be returned to the Assembly for another try.

Question 2: The tenant in one of my units has notified me twice in the past two years that the stove and the refrigerator have broken. In all four cases, I repaired or replaced the appliance. However, I do not want to do it again. Can I notify the tenant that from now on the stove and refrigerator are his problem if they break?
Answer 2: Yes, unless the rental unit is in a ‘rent controlled’ city, or your lease requires you to maintain the appliances. Because the appliances are not considered requirements of a habitable unit, they are not required to be provided at the inception of the tenancy, nor maintained during the tenancy unless local law or the rental agreement so requires. In the case of a rent controlled unit, the appliances would be considered part of the ‘housing services’ originally provided as part of the unit, in exchange for the rent being charged. Any decrease in housing services, such as refusing to maintain the appliances, would be considered the equivalent of a rent decrease, which could be determined by the local rent board in terms of the amount of rent the tenant would be entitled to deduct from the rent while the housing service (the use of the working appliance) was not provided. In the case of a lease, the landlord promises to provide the tenant with the housing services provided at the inception of the lease, as long as the lease runs. Once the lease expires, the terms can be changed, for example to eliminate the landlord’s duty to provide working appliances. However, the ‘lease’ includes the monthly period during which the tenant pays rent in advance for the following month on a month to month rental agreement, meaning the landlord would need to serve a change of terms of tenancy notice to take effect at the beginning of the next rental period. If the tenant remains in possession and pays the rent, she will be deemed to have accepted the new rental terms.
However, it should be noted that in any case – rent control or lease – the tenant has a duty to use the appliances without damaging them. I’m not sure how one ‘breaks’ a stove, oven or refrigerator, but if it can be shown that the tenant’s negligent or reckless use of the appliance was the reason for the problem, the tenant is responsible for the repair or replacement cost.

Question 3: My rental unit’s neighbor has complained that my tenant is disturbing her, by the noise coming from the tenant’s unit and by the tenant throwing litter out her window, including cigarette butts. Do I have any responsibility to the neighbor for these complaints?
Answer 3: Probably. You have the obligation to your neighbor not to allow or permit your property to be used in such a way as to create a ‘nuisance’ that impacts the neighbor. For example, you could not have loud parties yourself every night if the noise violated local noise ordinances as to volume and time of day. Since you have some degree of control over your tenant, the tenant’s actions could, under the right circumstances, be considered your responsibility. The circumstances would include the severity of the problem, how much notice you had of the problem and what steps you took to eliminate the problem. Obviously, one action you could take would be to send the tenant a warning letter advising of the complaints, and if the problem continued, follow with a three day notice to either cure the nuisance or quit the property. Since committing a nuisance also allows the tenant to be given a three day notice to quit (without the opportunity to ‘cure’), you could also bypass the ‘cure or quit’ option, if you were given enough credible evidence of the existence and severity of the nuisance. Of course, you should have adequate assurance of the accuracy of the neighbor’s complaints before taking any legal action against your tenant. The source and level of such assurance is dependent on the facts of the particular case.

Question 4: When I rented a unit to two tenants, they were both on the rental agreement, for the one year period. However, they have let me know one of them wants to leave, and the one remaining will look for a replacement tenant. Do I have to agree to this, since they want to only pay the one tenant’s share until a new tenant comes in?
Answer 4: You do not have to agree to accept less than full monthly rent from the tenants. If both tenants signed the lease, they are both responsible (jointly and severally, as the legal expression goes) for the full amount of the rent. This means that if the full rent is not tendered when due, then you are legally permitted to seek the amount from either or both tenants, unless your written rental agreement specifically limits the tenants’ rent obligation to their ‘share’ of the rent (which is extremely unlikely unless you are renting a boarding or rooming house). As for the remaining tenant replacing the departing tenant, your lease may prohibit a sublet or assignment, meaning you could refuse to allow the remaining tenant to replace the departing tenant. However, most residential leases allow subletting or assignment with the landlord’ prior written consent, which may not unreasonably be withheld. This means you need a recognized reason to reject the proposed replacement tenant, which is usually based on credit history or prior evictions for cause. Please note you may not discriminate in the evaluation of the replacement tenant, and should consider the replacement tenant’s application as you would a new application. Also, note that in rent control cities, such as San Francisco and Oakland, a remaining tenant has a right to replace a departing tenant, even where the lease absolutely prohibits subletting or assignment, if the tenant properly submits the request, and the landlord does not have a reasonable reason to reject the applicant.

Question 5: I recall your column once provided an overview of the eviction process, but I cannot locate that article. Could you please reprint it, with any updates if necessary?
Answer 5: Briefly, an eviction, formally known as an unlawful detainer action, is the legal process by which a landlord seeks judicial help to recover possession of a rental unit from a tenant. Because ‘self help’ – the lockout – is illegal in California, using the unlawful detainer process is the most common method used by landlords to evict tenants. In a typical scenario, a tenant will fail to pay the rent on time, or commit some other breach of the lease (such as subletting without permission or having a pet). The landlord will then have the tenant served with a three day notice to cure the breach (pay the rent, get rid of the pet, etc) or quit the premises. If the tenant does either, that is the end of that particular matter.
If the tenant fails to do either, the landlord may then file the eviction lawsuit with the local county court. The ‘unlawful detainer complaint’, as with all documents involved in the process, can be prepared by the landlord. However, due to the strict requirement that the landlord follow very carefully the rules involved in evicting people from their homes, self- representation by the landlord should not be done without a clear understanding of the process. Landlords who fail to properly follow the rules, especially in rent controlled locations, often cause the case to take longer than necessary, or fail altogether, and in the worst cases can expose themselves to legal liability for such claims as attempted wrongful eviction.

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Once the complaint has been filed with the court, it has to be ‘served’ on the tenant along with a ‘summons’ that requires the tenant to file a written response. Unlike the 3 day notice, which can be served by the landlord, the summons and complaint has to be served by a third person, often a licensed process server, who is at least 18 years old. Once the summons and complaint have been properly served on the tenant, the tenant has five days to file a written response with the court, and send a copy to the landlord. If the tenant fails to do so, the landlord can immediately request that the court enter the tenant’s ‘default.’ If default is entered, it is then a fairly easy process to have judgment for possession issued by the court. If the tenant does respond, the landlord may have to have the case set for trial, and in the most extreme cases, actually submitted to a judge or jury for trial. As the ‘plaintiff,’ it is the landlord’s obligation to prove the facts that justify her right to a judgment against the tenant, and the tenant is permitted to offer defenses, such as ‘breach of the warranty of habitability’ in non-payment cases, that may defeat the landlord’s claims. More commonly, however, the two parties negotiate a compromise solution that allows the tenant to remain by curing the problem, or vacate the premises by stipulation, usually with a waiver of past due rents in exchange for saving the landlord the time, expense and uncertainty of going to trial.

If trial is necessary, and the landlord wins, she will be awarded judgment for possession, and back rent or per diem damages. Once judgment is issued, the landlord prepares a ‘writ of execution’ (no, not that kind) which will allow the county sheriff to post a final five day notice on the premises notifying the tenant that the sheriff will return on a specified date and time to restore the owner to possession. This may result in the sheriff escorting the tenant out of the unit on the date set for eviction, and giving the landlord documentary evidence of the landlord’s right to recover possession, and change the locks. If the tenant leaves personal property behind, there are rules that apply to allowing the tenant a 15 day opportunity to recover their possessions upon payment of the reasonable cost of storing the possessions, and after making arrangements with the landlord to retrieve them.
The total length of time involved, and the cost if the landlord retains an attorney, can vary tremendously based on the value of the unit to the parties, and other factors. However, a ‘typical’ case in which the tenant simply does nothing in response to the eviction effort (sometimes called an uncontested eviction), should take about 3-4 weeks and cost between $500 and $1500 (the lower fee is if the landlord represents herself, since ‘court costs’ – filing fee for the complaint, process server for the summons, various fees for getting documents issued by the court and finally the Sheriff’s fee – typically will add up to about that amount.)

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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