Question 1: How long should we maintain records on applicants and former tenants (i.e. application form, lease, correspondence)?
Answer 1: There is no general statutory requirement on that topic, so it becomes a matter of ‘best practices.’ Property managers I have communicated with on this issue indicate that keeping the records of applicants for three years is standard. This may be the result of the federal statutory provision regarding the obligation to provide notice to a tenant of the presence of lead based paint hazards (See the EPA website at www.epa.gov/leaed/pubs/nlic.htm for details). The federal regulations require that the acknowledgement of disclosure signed by the landlord and the tenant (and any participating agent) be kept for at least three years from the commencement of the tenancy.
In the case of actual tenants, four years from the tenant’s last date of occupancy would cover the four year statute of limitations for lawsuits based on the breach of a written lease, and so keeping those records somewhat after that four year period would likely provide you with the documentary record should a former tenant bring such a claim near the end of that statutory period. If you electronically scan the applications, and have a sound file storage system, there’s no reason not to store them for much longer, ‘just in case…’
Question 2: We bought an apartment building that has a “Section 8” tenant. When we rent another unit in the building, do we need to consider renting to someone with Section 8?
Answer 2: You may rent to any qualified applicant, including a Section 8 applicant. As for rejecting an applicant solely on the basis of Section 8, the state of the law in California is not clear, but the general consensus is a landlord is not required to accept a Section 8 applicant. However, if the applicant receives Section 8 as a result of a disability, and requests a ‘reasonable accommodation’ in the form of a one-time suspension of the landlord’s general refusal to rent to Section 8 applicants, there is one appellate case that holds the landlord must consider the reasonable accommodation request and respond accordingly. However, if you get to that point, you will likely want to seek specific legal guidance.
Question 3: I have served a 3-day notice to quit or pay rent on a tenant who failed to pay the rent. The tenant has also violated the lease by letting his sister move in without permission. Soon after the notice was served, the tenant texted me to say the unit was flooded by the p-trap under the bathroom sink. I think the sister caused the problem. Do I have to repair the sink since the tenant will probably be evicted anyway?
Answer 3: Unless the tenant (or his guest or roommate or subtenant) caused the habitability issue, the landlord remains obligated to repair any defects in the unit, even if that tenant is in breach of the lease for one reason or another, and even if the tenant is in the process of being evicted. The tenant’s right to the warranty of habitability continues until the tenancy is legally terminated by an eviction judgment in favor of the landlord.
Question 4: One of my tenants has roommates. One roommate is moving out and another is moving in. I looked at the AOA forms for roommates but there is nothing in them that requires a new roommate to sign all the relevant addendums such as lead based hazards, mold, bed bugs, smoke free, etc. Legally, does a new roommate need to sign these addenda or is a simple roommate form saying he/she agrees to whatever the existing roommates have already signed sufficient? Of course, I could prepare a completely new set of rental agreement and addenda for everyone to sign…again.
Answer 4: It is important to distinguish between a new roommate who becomes a tenant under the lease, and a subtenant who is not bound by the lease but has a separate agreement with the master tenant. In the case of a new co-tenant, all disclosures that were provided to the original tenant should be provided to the new co-tenant. As for subtenants, it is not clear if the landlord has a duty to provide the necessary disclosures to the subtenant, since you, the owner, would have no contractual relationship to the subtenant. However, since statutory duties do not always depend on a contractual relationship, the landlord may be required to provide the required disclosures to all persons the landlord knows is residing in the unit. To avoid being the test case on that issue, it is recommended that the landlord have the new roommate/occupant sign an addendum that confirms they have received the necessary disclosures. If the occupant is to be a co-tenant, rather than a subtenant, the addendum would include a provision that the new occupant agrees to be bound by the terms of the lease as if they were an original tenant. It should be strongly noted however, that in jurisdictions with rent control, the landlord should seek specific legal advice about the effects of adding a new occupant to the rental agreement, as opposed to that new occupant remaining a subtenant, due to the potential impact on the landlord’s subsequent right to increase the rent to current market rate when the ‘last original tenant’ vacates.
Question 5: I have a retail store tenant (A tenant) which is not paying rent and violating the rental agreement. A three day notice was served and a trial date is pending. Meanwhile, they are still violating the agreement which caused my other tenant (B tenant) to threaten to not pay their rent. Since they are disturbing the tenant B, can I now place a lock on the door of the tenant A, preventing the tenant from accessing the property?
Answer 5: You may not change the locks on your tenant – residential or commercial, and regardless of any provision in the lease to the contrary – until the tenant has vacated, or you have a court order allowing you to do so, which is usually only after you have prevailed on the eviction lawsuit and gotten the Sheriff to remove the tenant pursuant to the writ of possession process. You will just have to let tenant B know you are doing what you can to terminate Tenant A’s tenancy, and Tenant B should be patient. If Tenant B insists on some sort of rent reduction, you will need to evaluate that issue and take appropriate action at that time.
Question 6: What is the maximum we can charge for application screening fee?
Answer 6: The maximum allowable screening fee that can be charged by state law is currently $45.16. The fee can only cover the actual cost of the screening. You should provide the tenant applicant with a receipt of those costs, in addition to a refund of any and all unused portions of the fee. The tenant is entitled to a free copy of his/her credit report if one is obtained during the screening. A landlord must provide a disclosure of the tenant’s screening fee rights either in the rental application or by separate disclosure prior to receiving a screening fee.
Question 7: When serving a “24 hour notice of intent to enter premises” upon tenant, must one deposit a copy in the mail, or is simply posting it on front door 24 hours prior to entry sufficient?
Answer 7: You can mail it, or hand deliver it, though the amount of notice depends on the method of service – 24 hours if delivered to the tenant, but 6 days if the notice is mailed. As set out in the applicable statute, Civil Code Section 1954, unless the tenant consents, or there is an emergency, the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. “The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.”
Also, if the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.
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 www.beckmanblairllp.com.