Legal Questions October 2013

Kimball,Tirey&St.JohnLLP Questions & Answers Ted Kimball, Esq. October, 2013 1. Question: How long do I have to mail the tenant the itemized security deposit? Answer: You need to send an accounting for the use of the security deposit within 21 days from the date you took back possession. If you do not have all of […]

KTS- Legal Questions Sept 2013- Part 1

Kimball,Tirey&St.JohnLLP Landlord/Tenant Questions & Answers Ted Kimball, Esq. September, 2013 1. Question: After a 60-day notice expires, can I change the locks and have the resident’s belongings removed? Answer: No, you must go through the eviction process if they did not comply with the 60-day notice. In any case, before you act, you should consult […]

July 2013 KTS Legal Questions

Kimball, Tirey & St. John LLP

Landlord/Tenant Questions & Answers

Ted Kimball, Esq.
July, 2013

1. Question:
Is a new owner subject to the pet policy of a previous owner with month-to-month agreements?

Answer:

Yes, but the terms of a month-to-month agreement can be changed by properly serving a 30day
notice of change of terms of tenancy on the tenant.

2. Question:
What is the best way to handle the 31-day month? When a tenant moves in mid-month, is it
best to prorate the remaining days until the 31st or is it best to ignore the 31st day and consider
all months to be 30 days?

Answer:

There is no specific law on point so if your lease doesn’t address this issue, most judges use a
30-day month to calculate daily rent notwithstanding the number of days in the month.

3. Question:
We have a tenant who has been incarcerated. Her aunt is coming by to remove her personal
belongings from the unit before the tenant’s 30-day notice expires. Does the tenant still owe
rent for the remainder of the days left on the notice to vacate even though the unit key has been
returned to us?

Answer:

Yes, unless you are able to relet the premises before then.

4. Question:
Can I require all overnight guests to register in the office?

Answer:

Some judges may consider this an unreasonable invasion of the tenant’s right of privacy. It is
so far untested in our courts.

5. Question:
What should I do if I suspect drugs are being sold out of one of our apartments?

Answer:

Call the police and report the incident. Ask the police for further direction. Document all of the
calls and what you said, did and observed. If you can prove illegal activity, commence an
unlawful detainer action.

6. Question:
If a resident dies and we discover the body, should we call the police first or a family member?

Answer:

Call the police and give them the names and addresses of the family members. Wait for further
instructions from the police.

7. Question:
What happens if we rent to someone who is under 18 and is not an emancipated minor?

Answer:

The lease is voidable because the tenant did not have legal capacity to legally enter into the
agreement.

8. Question:
Where do I get the lead paint pamphlets?

Answer:

The California Apartment Association or one of its local affiliates, the office of HUD, or the
Environmental Protection Services (EPA) has pamphlets available.
The Protect Your Family from Lead in Your Home pamphlet is available online at
www2.epa.gov/sites/production/files/documents/pyf_brochure_landscape_color_1-16-13_0.pdf.
The disclosure form is available at
portal.hud.gov/hudportal/documents/huddoc?id=DOC_12345.pdf. A fact sheet regarding the
lead disclosure requirements is available at

portal.hud.gov/hudportal/documents/huddoc?id=DOC_12351.pdf.

9. Question:
Can I serve both a 3-day notice to perform covenant and a 30-day notice at the same time?

Answer:

Yes, so long as the 3-day notice provides that the tenant can either perform the broken
covenant or quit possession of the premises within the three days.

10. Question:
What is a prejudgment claim? When should it be used?

Answer:

A prejudgment claim is a document that can be filed along with the summons and complaint for
unlawful detainer. It requires that all persons who are claiming a right of possession to the
subject property to file a response and they will then be added as additional parties (defendants)
to the eviction lawsuit.

11. Question:
What kinds of changes to the rental agreement require the “change of terms” notice?

Answer:

Any material change to a month-to-month tenancy requires a written 30-day notice of change of
terms of tenancy. It may be served personally, by post and mail, or substituted service and
mail.

This article is for general information purposes only. Laws may have changed since this article was
published. Before acting, be sure to receive legal advice from our office. Ted Kimball is a partner with
Kimball, Tirey & St. John LLP. The law firm specializes in landlord/tenant, collections, fair housing and
business and real estate, with offices throughout California. Property owner’s and manager’s with
questions regarding the contents of this article, please call 800.338.6039.

© 2013 Kimball, Tirey and St. John LLP

Legal Questions May 2013 Part 2

6. Question: When not renewing a one-year lease, do I have to give the tenants a reason for  not extending their lease?

Answer: California law does not require landlords to give their tenants a reason why they are  not renewing the lease, unless the property is situated in a “just cause” rent controlled  jurisdiction.

7. Question: How can you enforce the pool rules where someone continuously leaves  underage children in the pool area?

Answer: You can document each incident, write them a warning letter and, if the violations persist, commence eviction actions.

8. Question: New tenants moved in last month. The wife now wants me to take her name off  the lease because she is moving out and getting a divorce. They agreed to a one-year lease.  What can I do?

Answer: You are not legally required to release the wife from liability under the lease. If you do,  and the husband is unable to pay or declares bankruptcy, you would not be able to pursue your  losses from the wife.

9. Question: One of our tenants owes us for past due rent, and part of his security deposit.  He has given us a check for the amount of the rent, but I want to first apply it to the deposit and then serve a three-day notice to pay rent or quit for the unpaid balance. Is that legal?

Answer: Yes, but only if the tenant did not designate where the money was to be applied on his check, or other written correspondence. You could avoid the issue by applying the payment to rent and then serving a three-day notice to pay the balance of the deposit, or quit. Failure to pay could lead to a successful eviction.

10. Question: What can you do about a tenant being cruel to an animal such as keeping a large dog in small quarters outside with the dog crying in the rain, cold and heat?

Answer: You have a right to report any criminal or inhumane acts occurring on the rental property. If the mistreatment constitutes a crime, you could evict the tenant for carrying on illegal activity on the premises.

Kimball, Tirey & St. John LLP is a full service real estate law firm representing residential and commercial property owners and managers. This article is for general information purposes only. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office. If you have questions, please contact your local KTS office. For contact information, please visit our website: www.kts-law.com. For past Legal Alerts, Questions and Answers, and Legal Articles, please consult the Resource Library section of our website. Thank you.

© 2013 Kimball, Tirey and St. John LLP

Legal Questions May 2013 Part 1

Kimball, Tirey & St. John LLP

Questions & Answers

Ted Kimball, Esq.
May, 2013

1. Question: In our lease agreements we require tenant’s to pay their rent on the first of the month. If the first falls on a holiday, such as Labor Day, do you have to give the tenant’s until midnight on the second to pay the rent or can you still enforce the late fee as of midnight on the first?
Answer: Rent is not delinquent unless one business day has expired from the date the rent is due. So if the first is a weekend or holiday, the rent is not late until after one business day has expired.
2. Question: I own a fourplex. Unit B has two cars, one is broken down. What kind of demands can I place on B about the broken down vehicle?

Answer: You can create a lease term by requiring all vehicles to be in operable condition or they will be towed. To put this into place, you need to either serve a thirty day notice of change of terms to a month to month agreement, or wait until the lease expires and have the new condition in the renewal lease.

3. Question: I rented a condominium unit to a couple on a year’s lease. After one month, they had to move out to take a job out of state. My daughter wants to move in and that’s all right but she will not be paying me rent. Does the tenant still owe me the rent for the lease?

Answer: Under California law, a tenant who vacates early is liable for the remainder of the lease period unless the premises are re-rented or otherwise taken back by the landlord. When your daughter moves in, the tenant is relieved from further payment.

4. Question: Can I bill my tenant for excessive water usage if I can prove they neglected to fix two leaky faucets for over three months?

Answer: Most rental agreements and California law require the tenant to maintain the premises in good condition and repair. Failure to meet their obligations would therefore be a breach of the lease and you should be able to recover all losses suffered, provided you have sufficient proof.

5. Question: Our tenant’s lease is up in six weeks. Can we serve a thirty-day notice at the beginning of the last month of their lease if we do not want to renew?

Answer: Unless your lease requires a thirty-day notice of intent not to renew, California law does not require either the tenant or landlord serve a thirty-day notice to terminate a fixed term lease. If the tenant remains in possession after the lease expires without the landlord’s permission, an immediate unlawful detainer action can be filed.

Legal Questions April Part 2

8. Question: One of our residents is a day sleeper and complains about the noisy children next
door. They are under school age and I don’t know how or if I should enforce excessive noise.

Answer: Most courts recognize that apartment living is in closer proximity than single family
homes and occupants must be more tolerant of disruptions, considering also the time of day or
night and the cause of the disruption. If the noise the children make is not excessive for
daytime tolerance, it is likely there is no violation of the lease or community rules. Having
another witness to the noise would be helpful to see which side you end up on!

9. Question: One of our month-to-month residents gave a thirty-day notice to vacate the unit
and now it is the thirtieth day and he refuses to move. What can I do now? Do I have to serve
him with my thirty-day notice?
Answer: If the tenant’s notice was in writing, the tenant is legally bound to vacate the unit within
the thirty-day time frame. Failure to do so allows you to immediately file an action for unlawful
detainer (tenant eviction).
10. Question: One of our tenants is moving out, but the roommate wants to stay and invite a
friend of hers to take the out-going tenants’ place. How do we indicate this on the lease?

Answer: One way is to draw up a new lease, assuming the new person meets your rental
standards, with new signatures unless you want to hold the vacating tenant responsible for the
remainder of their lease. In that event, simply add the new tenant to the lease and have them
sign.
11. Question: Our tenants deposit their rent directly into our bank account. This has worked
well because we know exactly when the rent has been paid. Now we need to evict for nonpayment
of rent. Can they still deposit the rent and if so, have I hurt my case?

Answer: Acceptance of rent after an unlawful detainer action (tenant eviction) has been filed is
a waiver of the right to evict in many cases. To avoid this possible defense, write your tenant a
letter documenting that you are not going to accept any more rent. Periodically check your
deposits and if rent was paid, send it back as soon as possible.
12. Question: I am a first time landlord and I rented my condo with a two-year lease. Now I
need to sell and have been told that my tenant is the one with all the rights. What are my
rights?
Answer: You have the right to sell the property and the buyer would “step into your shoes” as
landlord and must honor the lease. The tenant must also allow access to the property to
prospective purchasers, agents, etc…
13. Question: I am considering leasing to a corporation for use by their relocating personnel
and/or short time visitors. Who/what do I name as the tenant (s) to assure that any future legal
action can be handled expeditiously?
Answer: List the corporation and all occupants who are 18 or older as tenants on your lease
documents.
14. Question: Can tenants change their locks without permission and refuse to provide a key
to the property manager?
Answer: Most leases restrict any alterations to the premises without your permission or consent
and most leases specifically restrict changing locks without the landlord’s permission.

15. Question: If a friend of a tenant appears to be living in the apartment, is there a time limit
which allows me to compel the guest to fill out an application to be added to the rental
agreement? Can the tenant have guests stay as long as they want?
Answer: If your lease prohibits subletting or assignment of the lease, or if your lease restricts
the occupants to those named in the lease, the tenant could be in violation. You would need to
prove that the person really moved in and was not just a guest. A common “guest” policy is two
weeks.
16. Question: I do not know how to start the thirty-day notice to terminate. I have given a
three-day notice for non-payment of rent, but I do not know what to do next.
Answer: If the tenant has not complied with the three-day notice, there is no reason to serve a
thirty-day notice. Instead, you may start the unlawful detainer process in court immediately.

17. Question: My question concerns residents who deposit their check in the rent drop box
after the due date. The lease provides that rent is due on the first and if it is not received by the
fourth it is considered late and a $25 late fee is imposed. On the morning of the fifth, the rent
drop is emptied and any checks received after that time are deemed to be late. Each month
there are a few residents who put an earlier date on the rent check and drop it in after the fourth.
How should we respond to this situation?

Answer: It makes no difference when the check is dated. If the check is delivered after the
fourth, the tenant owes the late charge. By dating the check earlier, it only raises a question of
proving when the check was first received. So long as you can demonstrate to the satisfaction
of the court that the check was delivered late, you should be able to enforce the late charge.

Legal Questions April Part 1

Kimball, Tirey & St. John LLP

Questions & Answers

Ted Kimball, Esq.
April, 2013

1. Question: If I gave a resident a thirty-day notice of rent increase which ends on the tenth of
the following month, can I charge the resident pro-rated rent for the first nine days at the daily
rental value before the rent increase and the other twenty one days at the daily rental value of
the increased amount?
Answer: Yes, the rent increase is effective thirty calendar days from the date of service of the
increase. The notice has to be for sixty days if the rent increase is more than ten percent from
what it was one year before.
2. Question: Is there a “rule of thumb” for carpet depreciation?
Answer: It depends upon the quality of the carpet. You need to find out from the manufacturer
the life span of the carpet under “ordinary wear and tear.” If it has to be replaced before that
time, it may have been subject to extraordinary wear and tear and then the tenant would be held
liable for the loss of use of the carpet.
3. Question: If the contract says no pets, but does not specify fish, can I stop a tenant from
keeping a 150-gallon aquarium?
Answer: Fish are considered pets by most judges so they are violating the lease by having a
150-gallon tank. A small goldfish bowl may not constitute a major breach, but a 150-gallon tank
most likely does.
4. Question: I have a former tenant who claims, since she had a one-year lease, she is not
obligated to give a thirty-day notice.
Answer: There is no statutory requirement that a thirty-day notice of non-renewal be given
during a fixed term lease, but if the lease requires a notice of non-renewal and she fails to give
one, she is in breach of the lease and can be liable for any losses you suffer as a result.
5. Question: Can an apartment community charge a monthly pet rent and pet deposit to have
a pet?
Answer: Yes, so long as it does not apply to service animals for the disabled.
6. Question: How does one collect on a judgment against a former resident?
Answer: A judgment can be collected in a variety of ways: wage garnishment, bank levy,
seizure of non-exempt personal property and sale are the most common. A judgment debtor
examination can also be used to locate assets, and if the debtor fails to appear, a warrant is
issued for their arrest.
7. Question: One of our tenants was recently arrested and is incarcerated. How does this
affect his lease? Is it considered abandonment?
Answer: The incarceration of a tenant does not have a legal effect on the tenant’s right under
the lease. If the tenant breaches any part of the lease agreement, such as non-payment of rent,
the landlord may take legal steps to evict, and can serve notices to the tenant while in jail.

Legal Questions March 2013- Part 2

6. Question: Is there a clear definition of what constitutes “ordinary wear and tear”? My
husband and I are spending day and night trying to clean and repair our once beautiful home we
rented out and need to know how much to charge back to our tenants.

Answer: There are not many legal guidelines on this issue so many judges use what they
consider a common sense approach. We advise landlords to seek an opinion from the
manufacturer of drapes, carpets, and appliances as to their expected lifetime assuming ordinary
wear and tear. If the item needs replacing before that time, you can use this as a guideline to
determine the pro rata amount to charge back to the tenant.

7. Question: One of my residents recently had her phone line repaired. The telephone
company charged her $60.00. She did not notify us of the problem before ordering the repair.
We could have made the repair ourselves at much less cost. The tenant wants me to pay the
bill. What do you think?

Answer: California law deems owners of rental property responsible for the inside wiring to the
property. However, tenants must first give landlords notice of a needed repair and provide a
reasonable time to make the repair before undertaking a self-help action. You shouldn’t have to
pay more than what it would have cost for you to make the repair.

8. Question: Must 3-day notices to pay rent or quit be served to all delinquent tenants at the
same time? We manage a large apartment community and sometimes have a multiple of
notices to serve.

Answer: California law does not require that you serve 3-day notices to all delinquent residents
at the same time. It is a good idea to do so, however, in order to avoid the appearance of
favoritism or discriminatory conduct.

9. Question: Our tenants have a one-year lease. They gave me a 30-day notice of intent to
vacate two months short of the one-year lease expiration. What should I do?

Answer: You should let them know in writing that a 30-day notice has no legal effect on their
obligations under the lease and they remain liable for the rent until the lease expires or the date
you are able to relet the premises, (you have to use due diligence to relet), whichever comes
first.

10. Question: Our tenant’s children put a 6-inch hole in a plaster wall of the house they are
renting. The tenant readily admitted that the children “might have been punching the wall a
little.”

Answer: You can serve a 3-day notice to perform conditions and covenants or quit to require
the tenant to pay for the repairs to the wall. If they do not comply with the notice, you should
prevail in an eviction.

This article is for general information purposes only. Before acting, be sure to receive legal advice.
Ted Kimball is a partner with Kimball, Tirey & St. John LLP. The law firm specializes in landlord/tenant,
collections, fair housing and business and real estate, with offices throughout California. Property
owner’s and manager’s with questions regarding the contents of this article, please call 800.338.6039.

© 2013 Kimball, Tirey and St. John LLP