Legal Corner

Written by Landlord Property Management Magazine on . Posted in Blog

by Stephen C. Duringer, Esq. of the Duringer Law Group, PLC

Question.         I am a very conscientious landlord.  I want to ensure that my rentals are well maintained and that any maintenance issues are addressed immediately.  Every year, I send a notice to my residents informing them that I will inspect each unit.  I have been doing this for years without any problems.  This month I received a letter from one of my tenants telling me that I had no right to enter his apartment to look around, that he would not let me in.  What do I do?  Can I force my way in to do the inspection?

 

Answer.           Your policy of doing annual inspections is admirable, and is practiced by responsible landlords throughout California.  Most tenants welcome a responsible landlord’s actions in ensuring that all is well, and voluntarily cooperate in providing access upon the landlord’s reasonable request.  It is clearly in the best interest of all to ensure that any maintenance issues are promptly addressed, and that a spirit of communication and co-operation exists between a landlord and his residents.  Trouble is, your resident is right.  There is no specific provision in California law requiring a resident to allow the landlord access to merely “inspect” the premises.  California law states that a landlord can enter a rental unit only for certain reasons.   Those reasons are in an emergency, when the tenant has moved out or abandoned the premises, to make necessary or agreed repairs, decorations, alterations, or other improvements, to show the unit to prospective purchasers, tenants, or lenders, to provide entry to contractors or worker who are to perform work on the unit, or to conduct a pre move out inspection at the end of the tenancy, pursuant to court order, or to inspect the smoke detector or inspect the installation of a waterbed.  Conspicuously absent from this body of law is the unfettered right of a landlord to just inspect for the pure sake of just making sure everything is all right.  You cannot force your tenant to allow access for the purpose of inspection.  

 

Question.         My tenants and I seem to be able to work out our differences quite easily, but there are times when we disagree as to just who is responsible for making certain repairs to the apartment.  Can you give me some guidelines that will help me decide if the repairs are my responsibility or the responsibility of the tenant?

 

Answer.           Residential rental units must be “habitable.”   In legal terms, “habitable” means the rental unit is fit for persons to live in and that it substantially complies with state and local building and health codes that materially affect a tenant’s health and safety.  The law makes both landlords and tenants responsible for certain repairs, but you are ultimately responsible to ensure the unit is habitable.  You are not responsible under the “implied warranty of habitability” for repairing damage caused by the tenant, his guests or his pets.  You are responsible to take care of the habitability items, but your rental agreement can determine who takes care of the minor repairs.  California law lists several items that are required to maintain a habitable unit, these are effective water proofing and weather protection, including unbroken windows and doors; plumbing in good working order, including hot and cold running water connected to a sewage disposal system; gas facilities, heating, and electrical in good working order; clean and sanitary buildings and grounds; adequate trash receptacles; floors, stairways and railings in good repair.  Additionally, each rental unit must have a working toilet, washbasin and a bathtub or shower, operable dead bolts on the main entry doors, window locks, and smoke detectors.  A landlord is also responsible for the installation and maintenance of the inside wiring for one telephone jack.  Tenants must take reasonable care of the rental unit and the common areas.  Tenants are responsible for repair of all damage resulting from their neglect, abuse, or acts by their family, guests or pets.  Tenants must do all of the following:  keep the premises “clean and sanitary,” use and operate gas, electrical and plumbing fixtures properly; dispose of trash and garbage properly, not destroy, damage or deface the property, not remove any part of the structure, dwelling, facilities or equipment, must use the premises as a place to live, and use the rooms for their intended purpose, and notify the landlord when dead bolts and window locks don’t operate properly.

 

 Question          Most of my rental properties are residential multi family, but I have one small retail strip center in Los Angeles that I own as well.  I’ve never had a problem with my commercial tenants, but I have one who hasn’t paid rent this month.  Can I use the same three-day notice to pay rent or quit that I use for my residential properties?

 

Answer            Commercial and residential landlord tenant laws differ in many ways.  One major difference between the two is the ability to accept partial rent payments after service of a notice to pay rent or quit for a commercial property, and not for a residential property.  Provided the necessary language is included in the commercial notice, you may accept a partial payment without waiving your notice, and may proceed with an unlawful detainer action without having to re-serve a new notice.  For that reason, all commercial notices to pay rent or quit should contain language stating that in the event a partial payment is made, it will not act as a waiver of your right to commence an unlawful detainer action.  If you have served a notice that does not contain the proper language, and your tenant tenders a partial payment, you may immediately provide the tenant with a letter acknowledging the partial payment, but also stating that the partial payment will not act as a waiver of your right to proceed with an unlawful detainer action.   Other than that, review the cure periods stated in the default portion of your lease.  Typically, the cure period for non-payment of rent or other monetary sums due is three days.  Failure to provide proof of insurance is typically three days as well.  Most commercial leases will allow ten or thirty days to cure a non-monetary breach.  Ensure that the forms that you intend to use are consistent with the terms you have negotiated in your lease agreement, as the terms of your lease will control.

 

Question          I have a tenant who just skipped out last weekend.  He’s been behind in his rent, but I was working with him and he was catching up.  Got an email this morning from him, confirmed that he was out, said he left the keys in the unit.  Guess I’m kind of glad he’s gone, won’t have to go through the eviction process, but now what?  He’s only six months into a one year lease, and I don’t have any prospects.  What is my next step?

 

Answer            First thing is to confirm he’s out, pick up the keys and change the locks.  Document the condition the unit was left in, by taking several pictures of the premises.  If there is damage, take detailed pictures of the damage.  You will need to provide an accounting of his security deposit within twenty one days if the property is residential, thirty days if it is commercial.  Now that you have possession of the premises, you have an obligation to mitigate your damages, that is, to attempt to relet to minimize the loss that you are sure to incur.  Ensure that you maintain a log and document your actions in attempting to relet the premises.  If you retain the services of a broker, ensure that he or she does the same.  Your former tenant is responsible for the remaining term of the lease as well as any costs that you will incur in re-letting the unit.  These additional costs might include advertising fees, signage, broker’s commissions, tenant improvements for the replacement tenant, and the difference in rent for the remainder of the term in the event the replacement rent schedule is less than your existing rent schedule.

 

This article is presented in a general nature to address typical landlord tenant legal issues.  Specific inquiries regarding a particular situation should be addressed to your attorney.  Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 265,000 landlord tenant matters throughout California and has collected over $175,000,000.00 in debt since 1988. The firm may be reached at 714.279.1100 or 800.829.6994.  Please visit www.DuringerLaw.com for more information.

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