Landlord-Tenant
Why It's Important To Distinguish The Difference Between A Lodger And A Tenant
Posted by: Kenny Tan
July 23, 2011
Deciding whether a person is a mere lodger or a tenant can be very important in deciding whether advance notices need to be given to the renter prior to eviction or relocation expenses need to be paid to the renter should you decide to take the unit back for your own living. But the line can be blurred and the court looks at a number of factors to reach a conclusion
Can A Tenant Be Evicted For Changing Locks To Their Rental Unit Without Landlords' Permission?
Posted by: Kenny Tan
July 18, 2011
It's not uncommon for tenants to decide to change the locks to their rental unit, especially when their landlords habitually access their units without their permission.
But whatever their reasons, can landlords evict them for doing so?
In many instances a landlord can't evict a tenant for changing locks. In California, there's no law that prohibits a tenant from changing locks unless the written lease explicitly so states. For instance, some leases state that tenants must obtain landlords' permission before they may change the locks to their rental units. In some cases, there's a blanket prohibition on tenants' ability to change locks. Also, even if locks may be changed with landlords' permission, most leases require tenants to provide a key to the landlord on the new lock.
Even if the landlords find out about it, before a tenant can be evicted for changing locks, landlords are still required to serve 3-day notices. As long as the old locks are put back before the 3-day notice to cure or quit, landlords can't proceed to file the unlawful detainer.
Vendee In Possession: Does A Tenant Have To Continue To Pay Rent After He's Exercised The Right Of First Refusal?
Posted by: Kenny Tan
July 17, 2011
Some leases (usually commercial but sometimes residential ones as well) contain a right of first refusal clause.
The right of first refusal gives a tenant a right to purchase the property that he's renting if the landlord decides to sell it.
This is how it usually works:
The landlord lists the property for sale. Every time that the landlord receives an offer, he's obligated to present the offer to the tenant. Tenant has the right to accept that offer and the landlord would be obligated to sell the property to him based on the exact same terms and conditions in that offer. But the tenant doesn't have the right to counteroffer the offer. The landlord himself can't accept that offer and sell it to the offeror but may only do so after the tenant has indicated his refusal to accept that offer. Hence, that condition in a lease is commonly referred to as the "right of first refusal."
Usually the lease itself specifies how and when that right of first refusal should be exercised. For instance, it may state the right must be exercised by service of written notice of acceptance of the offer and within a certain date.
A tenant may lose his right of first refusal if he has been in default on the lease such as nonpayment of rent.
Once the tenant has exercised the right of first refusal, the obligation to pay rent is extinguished. He has become a vendee in possession and cannot be evicted for nonpayment of rent. (The word "Vendee" is synonymous with buyer just as the word "Vendor" is with seller)
Typically when there's an eviction filed against a tenant for either nonpayment of rent or violation of other terms in the lease after the right of first refusal is exercised, it's usually based on the landlord's contention that the right of first refusal clause is not valid or it was not properly exercised.
In any case, an unlawful detainer action may be dismissed on the ground that the defendant tenant has become a vendee in possession who is not subject to eviction.
Also, a tenant who has exercised a valid right of first refusal may sue for specific performance and record a lis pendens to prevent the landlord from selling the property to someone else.
Landlords: What Should You Do If Your Tenants Decide To Pay You Partial Rent During The 3-Day Pay Or Quit Period?
Posted by: Kenny Tan
June 07, 2011
When a tenant doesn't pay rent on time, you have the right to serve a 3-Day Notice To Pay Rent Or Quit. The tenants have 3 days to pay you the rent stated on the notice and cure the default.
What if the tenants decide to pay you partial but not the full amount of rent during the 3-day period.
The issue is whether you would lose your right to base your eviction on the same 3-Day Notice if you accept the partial rent.
While it's clear that you'd waive your right to evict a tenant if you accept any amount of his rent after the notice has expired, the law is not clear when the partial payment is made during the 3-day period.
In drafting my 3-Day Notice, I always make it clear to the tenants that I do not waive my right to evict them should they tender partial rent. It is expressly stated in my notice. However, if my landlord clients ask me if they should accept and deposit partial rent check, my usual response is don't cash it but insist on getting the full rent, unless you really need the money. I give this advice because in most cases, my clients are more interested in getting the tenants out of the place as soon as they can than receiving the rent from the tenants. Also, I've seen some strange rulings by unlawful detainer judges over the years. It's better to be safe than sorry.
Usually if the rent is paid by checks, it's less of a problem because the landlords can immediately return the check and not deposit it.
However, I've had clients who'd given their tenants their bank account numbers and the tenants would deposit the money directly into their accounts. In that instance, it's a potential problem. The tenants would have a better argument that the landlords have accepted the rent and therefore waived their right to evict the tenants on the 3-day notice. It's a minor problem if the landlord is not on vacation and is able to realize the made deposit and immediately write a refund check to the tenants.
What Duty Does Your Landlord Have To Stop Another tenant From Making Too Much Noise?
Posted by: Kenny Tan
January 15, 2011
What can you do if your landlord takes no action?
You're 60 years old, retired with a disability - depression. You live on the first floor. At night you're being kept awake by noise from the second floor - things dropped on the floor, furniture moved around, or walking footsteps. You're not the type to complain. As a friendly neighbor, you told the tenants upstairs about your concern. Your comments upset them. Not only did they fail to heed your concern and stop the behaviors that caused you sleeplessness, but this time the noise was intensified seemingly to annoy and retaliate against you.
You complained to the landlord to ask them to do something to stop the noise but to no avail. The landlord has spoken to the tenants upstairs who told the landlord a different story. They've told the landlord you've been harassing them. The landlord then writes to you to warn you not to harass your neighbor and refer to a clause in the lease agreement which makes you liable for an eviction if you do so. Now suddenly you're the bad guy.
What rights do you have against the landlord? (You're not comfortable taking any legal actions against the tenants upstairs for fear he might cause you physical harm)
Many residential leases contain a provision that prohibits the tenants from disturbing the quiet enjoyment of other tenants. If you do so, that's considered a violation of a term in the lease which may cause a landlord to serve you with a 3-Day notice to cure or quit - of course the landlord has to give you an opportunity to cure.
Dealing with the disputes among different tenants is not something landlords are comfortable doing. But they are put in this position because in every lease there's an implied covenant of quiet enjoyment. It fhey don't so something and just ignore the problem and hope it'll somehow go away, they run the risk of breaching the lease if the dispute doesn't resolve itself - of course few disputes between tenants resolve on their own without intervention by the landlords or the courts. It probably doesn't matter that the landlords themselves did not cause the events which led to the interference with a tenant's quiet enjoyment. But if it is something within their power to control and if they don't take the necessary actions to prevent it, they may be in breach of the lease.
It is risky for the landlord to side with one tenant over another on a dispute like this, especially when the landord fails to do its own investigation to gather the evidence. If the landlord favors one tenant over another, the landlord may face allegations of discrimination or even retaliation.
Sometimes it is just a matter of personality clash between two tenants that don't get along. If this is the case, landlords should not be rash in their decision to serve 3-Day notices. Instead, the landlords should listen to both sides and figure out the best solution - which may or may not involve a legal action - to resolve the situation. If possible, avoid accusing one tenant of being the trouble maker. If the landlords do that, they run the risk of putting one tenant on the defensive or possibly alienating themselves from a tenant.
Landlords should also be aware of the Unruh Act - a state law that requires landlords to make accomodations to persons with disability. Failure to accomodate may be a violation of the act. Now suddenly a dispute which started out between tenants which the landlord was not a part of becomes a big legal case for one of the tenants in which the landlords find themselves named as a defendant.
Indeed, it is no easy task for landlords resolving squabbles among tenants but they can't afford to stick their heads into the sands and do nothing. But it is a sticky situation - one that a landlord doesn't care to be involved in but they have to be proactive about resolving the dispute so it doesn't get out of hand.
One option the landlord in dealing with a situation like this is to offer to relocate one of the tenants to another vacant unit if one is available or offer one of the tenants to break the lease without penalty.
It is not easy being a landlord.
To Evict A Caretaker, What Notices, If Any, Do You Need To Serve?
Posted by: Kenny Tan
November 20, 2010
The relationship between a caretaker and a homeowner is sometimes not a clear one. Is this person an employee or a tenant? Why is it important to make the distinction?
If this person is an employee, not a tenant, then no notices are required to ask her to leave, once the employment relationship is terminated. Also, she's not entitled to any protection afforded a tenant under the law.
However, if she's a tenant, not an employee, some form of written notice (3-day, 30-day or 60-day depending on the type of tenancy) is required to evict her, and she may assert certain defenses -retaliation and discrimination to name a few - against an unlawful detainer action.
That's why the distinction is important.
Of course, if she's an employee, not a tenant, she may be protected under a totally different set of laws - employment laws maybe.
How do we make the distinction between whether she's an employee or a tenant? Courts look at different factors: Does she receive any salary? If she does, and her job requires her to live at the premises, she's more like an employee; if she doesn't, but instead was looking for a place to stay but couldn't afford rent and agreed to provide services around the house in exchange for a fixed amount of rent, then she's more likely to be a tenant.
Courts will need to look at the entire circumstances to decide.
