Steve Duringer of Duringer Law Group is My Favorite Eviction Guru.
His firm is outstanding. Fortunately I have not had to use his services in a long time (and please let’s go longer), but if I need an Eviction completed, he is the one I would call.
He authors a fine monthly newsletter. His latest has an article on retaliatory eviction. There are regulations to protect tenants if they take certain actions. For example, use the repair with the rent money rule.
Rather than me rephrasing his efforts I would like to present Steve’s article here and now. It is with pride that I say, “Some years ago it was my honor to have Steve Duringer as a student in my real estate classes”. Thanks again, Steve.
Read on, it is an interesting reading.
Stephen C. Duringer, Esq.
The Duringer Law Group, PLC
Question I just sent out my annual rent increases to all of my residents. Because times are tough, I delayed sending them out, and I kept the increases minimal. Well, I just got home, checked my messages, and got an earful from one of my more “vocal” residents. She claims that I was retaliating against her, and that the rent increase notice was not valid. Says that she won’t pay it, and that I violated the law by even giving it to her. Something about her deducting $6.50 from her rent three or four months ago for a leaky faucet. I remember that she shorted the rent, but I didn’t really mind, she took care of the dripping faucet herself. What does this mean, what is “retaliation?” Did I do something illegal by serving my annual rent increase notice?
Answer No. Although there are strong protections in place for certain tenant conduct, your resident is confused. A landlord cannot punish a tenant for exercising a “legal right.” The law offers tenants certain protections from retaliatory evictions and retaliatory acts. California law will infer that a landlord has a retaliatory motive if he seeks to evict the tenant or take other retaliatory action within six months after the tenant has exercised certain protected rights, including using the repair and deduct remedy, complaining about the condition of the unit to a public agency, after giving the landlord notice, or after filing a lawsuit based upon the condition of the unit. The tenant must prove that she exercised one of these rights, in the past six months, and that her rent is current. The landlord may counter the tenant’s claims of retaliatory conduct by establishing that he did not have a retaliatory motive. If the landlord’s actions were based on a valid reason, and not in response to the tenant’s exercise of a protected right, then a court would find that the landlord did not retaliate. If your annual rent increase was consistent with past practices, didn’t solely target this individual tenant, was based upon objective business reasons, and was not meant to “punish” this resident, then your rent increase would most likely not be deemed retaliatory.
Question I just put my single family house on the rental market, and have agreed to rent it to a nice family of four; mom, dad and two kids, two and five. The parents seem responsible enough and I’m sure they’ll make great tenants, but I am concerned because the house has a pool. Is there anything I can do to protect myself from liability should one of the children fall in and drown?
Answer The short answer is yes. There are several measures you can, and should, take to protect yourself. First and foremost, ensure that the pool and the gate/enclosure conform to all state and local codes and ordinances. The gate should be self latching, and should be checked to ensure that it closes properly. Review your insurance policy with your broker to ensure that your coverage is adequate; consider an umbrella policy as well. Your broker can counsel you on coverage limits; consider $3,000,000 as a minimum. Finally, you should include as part of your rental documents an addendum to the lease in which the tenant acknowledges the dangers of the pool, agrees to ensure that all gates are kept closed, and agrees to periodically verify that the self latching gate functions properly. Consider requiring that your tenants procure renters liability insurance as well. These requirements should be a part of your rental policies for a property with a pool, regardless of whether or not your tenants have children.
Question My new tenants just moved in a month and a half ago. The lease requires that the tenant pays for all utilities, and must put the utilities in their own name prior to moving in. Well, I just received the electric bill, and it’s still in my name. I’m thinking about not paying it, just letting it get shut off. Maybe when the lights go out, they’ll take care of it. Can I do that?
Answer No, can’t let the utilities be shut off. Your tenant’s actions are a breach of the rental agreement, and must be addressed in compliance with California law. You should immediately prepare and serve a Notice to Perform or Quit- Breach of Covenant notice. The notice should identify the specific breaches, the failure to place the electric utility in their own name, and their failure to pay the utility charges incurred since taking possession. The notice should be specific as to how they must cure the breach, namely, they must put the utilities in their name, and reimburse you for the amount of utility changes that have been billed and incurred post tenancy. Note that some jurisdictions may require that you include a statement identifying a witness who observed the breach, as well as the date and time of the breach. In such jurisdiction, you or your manager would suffice as the witness, and the breach would be considered ‘ongoing’ as it continues to occur. In the event of non-compliance, you would be entitled to file an unlawful detain action to recover possession of the premises. Rarely though is that necessary, as the vast majority of residents will immediately comply.
Question I’m looking at a single family residence to purchase. It’s a pocket listing, no signage, not on the MLS. The agent claims it’s a great deal because the seller needs cash quickly, wants a quick escrow, and is willing to let it go for under market. The only catch is, the tenant doesn’t know the house is for sale, and the owner doesn’t want the tenant to know. He says that when I close escrow, I can serve my own notice to have the tenant leave, but he doesn’t want the tenant getting nervous and moving out if the deal doesn’t go through. Seems like a really good deal, I know the house, I’ve peeked in the windows, and it’s in incredibly great shape. What am I missing, what can go wrong?
Answer Lots. You have actual notice of a tenant in possession. That means that you are bound by whatever rental agreement, or contract, exists between the owner and the existing resident. The tenancy agreement may turn out to be a fixed term lease for a long period of time at less than market rent. The resident may have a lease with an option to purchase the house for a fixed sum, possibly less than what you are paying for it. There may be litigation between the parties relating to the premises, possibly mold or some other contamination issue that you may not be aware of. If the deal really is as described, then prepare a purchase agreement providing a due diligence period allowing you a brief time period to check title, condition and other issues. Once escrow is open, and you are satisfied with title, and the condition of the premises, contact the resident, confirm the terms of his tenancy, get a copy of his rental agreement, and prepare an estoppel certificate for the resident to sign affirming the tenancy agreement, amount of deposit, and affirming that he has no equitable or legal interest in the property.
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. The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms, has successfully handled over 245,000 landlord tenant matters throughout California, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714.279.1100, toll free at 800.829.6994 or 877.387.4643. Please visit www.DuringerLaw.com for more information.