This article was posted on Monday, Jul 01, 2013

Question 1: When there is a shooting and tenants want to break the lease, what can we do to stop them, or force law enforcement to make the area safer so we don’t have our buildings sitting vacant because of gang members?
Answer 1: That is (pardon the pun) a loaded question. Regarding what you can do to ‘force’ law enforcement to make the area safer, I think all you can do is work with your local police and sheriff departments, and local elected representatives, to try to get more police coverage of the area. As for whether your tenants can break the lease due to the violence in the area, that is a very ‘fact specific’ situation, and not suitable for analysis in this Q&A forum.

Generally, if the conditions which are under the landlord’s control are such that the tenant’s right to quiet enjoyment of the unit is significantly diminished, the tenants may consider the landlord in breach and vacate the premises. It is the level of diminishment, and how much of that which is under the landlord’s control, that will be the factors in the liability analysis. There is also the question of whether the landlord provided necessary disclosure to the tenant applicants before they moved in (if the owner was aware of a history of violent crimes in the complex, the tenants would have a right to be informed of that before committing to the lease, and may have grounds to terminate on that basis alone).

If the tenants insist on leaving before the term of the lease expires, it will require a detailed review of your facts to determine whether they are legally entitled to do so, or are liable for breach of lease

Question 2:  If we have a non-smoking building, how many feet away from the building must smokers be?
Answer 2: Currently, there is no state-wide prohibition on smoking in residential units, although several cities and towns, such as San   Rafael, have passed municipal ordinances banning smoking inside the unit where the unit is part of a multi-unit building. However, in February, 2013, a state wide measure was introduced as AB 746, that would ban smoking in multi-unit housing, with an allowance for designated smoking areas that would be outside and at least 20 feet from any area or unit where smoking is not allowed. That bill is being considered in Sacramento now, and we will stay tuned to see if it passes into law later this summer. The text of the proposed bill is set for the below.Article 4 (commencing with Section 118960) is added to Chapter 4 of Part 15 of Division 104 of the Health and Safety Code, to read:
Article 4. Smoking in Multifamily Dwellings


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(a) The smoking of a cigarette, as defined in Section 104556, or other tobacco product is prohibited in the units and all other areas of new and existing multifamily dwellings, except those areas that have been designated pursuant to subdivision (c) as areas where smoking is permitted.

(b) For the purposes of this section, “multifamily dwelling” means residential property containing two or more units with one or more shared walls, floors, ceilings, or ventilation systems.

(c) The landlord, property manager, building owner, homeowners’ association, or other equivalent authority may designate an outdoor area where smoking is permitted if the area meets all of the following criteria:

(1) The area is located at least 20 feet from any unit or enclosed area where smoking is prohibited.

(2) The area does not include, and is at least 100 feet from, unenclosed areas primarily used by children and unenclosed areas with improvements that facilitate physical activity including playgrounds, swimming pools, and school campuses.

(3) The area includes no more than 10 percent of the total enclosed area of the multifamily dwelling for which it is designated.

(4) The area has a clearly marked perimeter and is identified by conspicuous signs.

(5) The area is completely within a confined area.

(6) The area does not overlap with any enclosed or unenclosed area in which smoking is otherwise prohibited.

Question 3: Are there local rules for Oakland that affect giving a 30 or 60 day notice to move out?
Answer 3:Oakland rentals that are covered by Measure EE – the local eviction control law – require a specific notice of termination, and so yes, there are local rules forOakland. As to whether it’s a 30 or 60 day notice, that depends on the type and length of the tenancy. Generally, a tenancy for less than one year only requires a 30 day notice, whereas a tenancy over one year requires a 60 day notice. But because there are potential consequences to improperly seeking to terminate a tenancy, you may want to consult with someone who knows the rules before you undertake the process.

Question 4:  I completed an eviction, and the tenant still owes about five months in back rent. The original complaint that was filed shows that there is money owed. My question is do I file a separate complaint now that the tenant is evicted? Or do I file a request for court judgment on a  form, and if so, what forms would be needed to complete the money judgment process?
Answer 4: Without seeing your eviction complaint, I can’t fully address your question. If you sued the tenants for non payment of rent, then the complaint would most likely have a claim for the back rent that was owed and the subject of the three day notice to pay or quit. If you got a default judgment for possession, you can submit a request for an amended judgment to include the unpaid rent demanded in the complaint (plus the daily rental value  that accrued during the eviction process). There are’ judicial council’ forms to help you do that (forms created by the state bar that can be accessed online at There are also instructions along with the forms on the state bar’s judicial council website. However, in many counties there are also  local rules that you should be aware of, which can be generally be found at the county’s superior court website, or by calling the clerk of the court.

Question 5: The Sheriff evicted my former tenants, but the tenants left items that are worth more than $300.00. What type of notice do I need to post on the property, and when can I remove the items?
Answer 5: After January 1 of this year, the amount of value of abandoned property that could be thrown away if not recovered by the departed tenant was increased to $700.00. If the tenant was evicted, the Sheriff’s notice will provide the necessary notice. If the tenants simply vacated, and left behind personal property (furniture, household articles, clothing, etc.)  the landlord must serve by personal service or mail a Notice of Right to Reclaim Abandoned Property. The tenant will have 15-18 days to recover their possessions (15 if service of the Notice was personal, 18 if by mail), which can be stored in the unit or elsewhere for the 15-18 days. After that, if the remaining items are reasonably valued as worth over $700, the property must be auctioned off according to a statutory procedure (that can be discussed later if you find you need that information). If the property is estimated to be worth less than $700.00, the abandoned property may be disposed of by the landlord.  [AOA members may download this form from the AOA website,]

Question 6: When a new owner takes over a non-controlled property with tenants in possession, are tenants required to submit to unit inspections? What about completing new “move-in” lists showing current conditions?
Answer 6: There is no general right of a landlord to compel a tenant to submit to a unit inspection. However, if your unit is not under local rent/eviction control, you have somewhat more leeway to do the kinds of things you are discussing in your question. If your tenants are month-to-month, you can probably amend the lease to require an annual estoppel document from the tenant, that confirms they have no claims against the landlord, or any complaints about the condition of the unit. As for an annual inspection, you can not override the state law that regulates a landlord’s right of entry to the tenant’s unit – Civil Code 1954. Section 1954 allows noticed entry for the purposes of showing the unit to various persons, such as contractors, buyers, tenants or agents. I would assume you were able to conduct such an inspection as part of the purchase process. If not, and you have a need to perform repairs in the unit, you can enter after proper notice pursuant to the provisions of Section 1954. You are also entitled to enter for purposes of checking the condition of the required smoke alarm. Health and Safety Code Section 13113.7, provides in part: An owner or the owner’s agent may enter any dwelling unit for the purpose of installing, repairing, testing, and maintaining single station smoke detectors required by this section. Except in cases of emergency, the owner or owner’s agent shall give the tenants of each such unit, room, or suite reasonable notice in writing of the intention to enter and shall enter only during normal business hours. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary.

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


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