Oakland tenant wish list doesn’t see the light of day. 

2020 begets a new opportunity to become a better landlord or advising your clients how to cauterize risk and optimize the value of their investment portfolio.

We continue our tradition of offering resolutions rental housing providers might consider as we prepare to usher in a new year. Here’s what made the top of our list.

I will serve notices without delay.

Our hard-won experience has shown many landlords are conflict avoiders and would rather kick the can down the road, in the wishful thinking that these disputes will resolve on their on their own. Ordinarily, the passive landlord risks losing months of rent payments, compounded damage to the unit and other consequences unless he or she takes proactive action. Increasingly, though, time is not on the side of landlords, as two newly minted laws are added to the mix.

Weekends and court holidays will no longer count toward the expiration of three day notices, thanks to AB 2343, a statute that affords tenants more time to respond to evictions.

Under AB 1110, landlords will soon be required to provide a 90-day notice to tenants whenever rent increases exceed 10%, essentially giving month-to-month tenants an extra 30 days heads up, since under existing law, the owner must be afforded 60 days notice before the effective date of a rent increase north of 10%.

I will take care of my resident managers, in full compliance with employment laws. 

If your unit has 16 or more units, the law prescribes that a “responsible person” must reside on the premises and “have charge” of the building. These resident managers are considered employees and not independent contractors. Two items to be aware of:

• The maximum allowable rent charged to a manager who is required to live on site as a condition of employment will increase, and the maximum amount of discounted rent that may be credited to the wages owed to the manager will likewise be adjusted.
• Lawsuits by disgruntled resident managers and their enterprising attorneys are proliferating, with the financial consequences of a verdict against the landlord quite hefty.

Hiring, compensating and terminating resident managers is tricky, making it imperative that you familiarize yourself with the rules and perhaps tether your rental business to an attorney with experience in employment and landlord-tenant law. We provide more context here.

I will thoughtfully review my communication in rental ads, leases, and other correspondence.

With the collective moans against rising rents, displacement, and epic communes, the political rhetoric has taught us that landlords may have a target on their backs, but rental property owners can become more of a flaming beacon by muttering things that are better left unsaid.

Take for instance, a Craigslist apartment listing that says, “NO Section 8.” This is a prima facie violation of California’s fair housing laws and some opportunistic attorneys will cook up a lawsuit based on this exclusionary language.

Case in point is this story surrounding a San Diego attorney, who single handedly brewed over 50 lawsuits against offending landlords who advertised their disfavor of tenants with subsidized housing vouchers.

We were intrigued to come across this article spawned when one landlord put a clause in the lease requiring prospective tenants to certify he or she does not have psychological issues that would necessitate the need for an emotional support animal. The ad became a heat-seeking missile in the news feed, replete with quotes from tenants’ attorneys.

To avoid a costly lawsuit or backlash, landlords are well advised to keep their eyes and ears opened, and their mouths closed. When it comes to this type of communication, less is more.

I will review my policy regarding short-term rentals.

As Daniel told the San Francisco Chronicle, the horrific Orinda shooting that took place in the Airbnb Mansion Party on Halloween night illustrated the risk you face when you “arbitrage your house on Airbnb… you may be ‘sharing’ with people who you don’t know from a hole in the head.’

There are more considerations for would-be hosts in this blog on the scary legal issues the Halloween massacre epitomizes.

I will invest in deferred maintenance, respond to repair requests quickly, maintain reserve funds, and only use licensed contractors. 

When a tenant faces an eviction action, he or she can claim that the rental unit is inhabitable, and we have seen an influx of enterprising tenants’ attorneys who use this defense, many whom provide legal assistance to outgoing tenants at no cost.

Make sure your building is up to applicable code and when residents have legitimate repair requests, please don’t be a pennywise and pound foolish – make the repairs in a reasonable timeframe. We also recommend maintaining liquid reserve funds, having enough money in the bank to respond to emergencies.

If a project requires specialized knowledgeable or unique risks, it is not the time to skimp by hiring a friend of a cousin who is not licensed or performs work beyond the scope of their expertise. You may also consider hiring a property management company to take a hands-off approach.

I will review my lease with Bornstein Law to ensure it is not prehistoric in an age of new laws.

A recurring theme we notice in every season is the use of stale, templated documents, but with the advent of statewide rent caps and rent controls, using obsolete leases is all the more alarming.

We have studied AB 1482 and have requisite notices prepared. You are welcome to contact our offices to make sure your leases are compliant in a new era.

Winding down the earthly affairs of a departed loved one is a daunting task, and the pain of losing someone is often exasperated by the financial and legal complications that death brings.

When the estate home is occupied by tenants or beneficiaries/relatives or others who overwarm their welcome, this process can be all the more harrowing.

Let’s compartmentalize exactly who is occupying the property after the owner passes away. Are they tenants or licensees? That’s the quintessential question that must be answered, so let’s define the two.

It should go without saying that a tenant is someone who lawfully occupies the property by paying rent and have entered into a rental agreement with the deceased owner. What is worth noting is that upon death of the landlord, the tenancy will normally survive. Put differently, the passing of the owner is not a “just cause” for eviction, nor is it an opportunity for heirs to indiscriminately raise the rent without regard to rent control ordinances and the agreed-upon lease they inherited. Tenants cannot be summarily uprooted because there is a new sheriff.

When the property is legally transferred to someone else, the new landlord must honor the pre-existing lease, and likewise, the tenant is bound by the terms and conditions of that lease. In the eyes of the law, this covenant is a living, breathing creature and continues after the landlord’s passing.

When someone inherits a rental property and suddenly fills the shoes of the landlord, he or she is well advised to become familiar with state and local laws relating to this unique relationship, as there are many nuances in landlord-tenant law. In this already stressful time, adding new layers of complexity by staying compliant with myriad statutes and ordinances can compound the pressure and expose unsuspecting heirs to liability if there are any missteps.

It’s been said that ignorance of the law is no defense. That a novice landlord was bequeathed a rental property and was not versed in landlording rules will be not be an acceptable excuse in front of the court or local rent boards when a dispute arises.

More often than not, though, the heirs don’t want the investment property – they want to liquidate it, especially with the red-hot sticker prices of real estate in the Bay Area. A property that is vacant and properly staged will typically sell for more than if there are inhabitants residing in it. Bornstein Law can avail several possible avenues to help you effectuate the vacancy, but let’s move onto dwellers of the estate home who are not tenants.

When opportunistic or unauthorized residents claim the home of the deceased, many decision makers are conflict avoiders and put their head in the sand.

This is a delicate, usually emotionally charged subject. When the property owner passes, heirs and beneficiaries may assert they are entitled to the premises, or just kind of casually stake out a living space, as if pitching a tent, whether or not they are afforded the legal right to do so. Since they are close blood relatives or their acquaintances, the wayward guests may be parasitic and/or impede the sale of the property.

The buck stops with the Personal Representative, executor, administrator, trustee, whatever the title of the singular person in charge, but oftentimes this person lets people live in the estate home in an informal arrangement because it is family. This can quickly get out of hand, especially when roommates are added to the equation, rent exchanges hands, and it is later argued that tenancies are created. Worse yet, these inadvertent tenancies may be subject to rent and/or eviction controls, so the innocent heir looking to help someone out by providing a place to stay in the inherited home can be unknowingly exposed to a set of onerous rent and eviction controls when the resident hunkers down.

RELATED POST: The difficult prospect of evicting a relative

Unlike a buttoned-up tenancy agreement, a licensee is someone who is given limited access to a property. With Thanksgiving nearing, here is an easy example: You invite some friends over for leftover turkey and watch a football game. After a while, they will leave. As a licensee, they can’t stay there without permission or claim they are in possession of the property. They have to go when it’s time to go.

If someone continues to stay after the game is over and the pumpkin pie is gone, we won’t go so far as to say they are “squatters” who helped themselves to the premises wthout the owner’s permission, a subject we took on here. If they continue to stay after it is time to depart, though, the guest has violated a license to stay.

It’s the same concept with relatives and others who linger around when the owner passes. Assuming no tenancy was established with the guest/licensee, whoever is in charge of the estate can ask the unauthorized occupier to vacate the premises. If the recalcitrant guest continues to stay, a forcible detainer action can be filed.

An unlawful detainer and a forcible detainer are similar creatures – the end goal is to legally remove an occupant. Where the two differ is how the occupant plopped into the unit in the first place. If the occupant is a tenant, a carefully choreographed eviction procedure is required in the form of an unlawful detainer action. If the occupant is not a tenant but merely a licensee, a forcible detainer is the appropriate vehicle to create a vacancy.

We hasten to say that even without a written lease, a tenancy can be created when the guest pays rent to whoever is tasked with managing the estate’s assets. Let’s take a hypothetical.  The owner passes away and there is a sibling who wants to stay in the estate home. The individual reaches out to his sister, who has been appointed the Personal Representative responsible for liquidating the estate’s assets, and the incoming occupant offers to pay his sister to stay in the home of the deceased. The Personal Representative accepts the payment and sometime later, it’s time to sell and the PR asks her brother to leave. He refuses to leave.

In this event, an unlawful detainer would be necessary because money exchanged hands, a tenancy was commenced, and worse yet, the tenancy can be subject to just cause eviction rules. When monetary compensation is accepted, the occupant is not a licensee, but is a tenant and afforded the full suite of protections that come with a tenancy.

Parting thoughts

Being appointed the person to settle an estate is both an honor and a burden, and this burden is more cumbersome when family members, caregivers or others attempt to live in the property of the deceased. This requires stern action, “tough love,” if you will, but oftentimes this period is clouded by emotion and a reluctance to ruffle feathers. A competent attorney removed from the emotional fray can help make this process just a little easier so you can regain control of the property and move on to build greater memories.

In several past articles on fair housing and Section 8 tenancies, we said that no group should be painted with a broad brush and that discrimination lawsuits are the product of preconceived notions about classes of people.

We might be seen as hypocritical, then, when we outline five profiles of tenants. Not so fast -these personalities span every class, religion, color, source of income, and other characteristics. Indeed, tenants are individuals, and after managing thousands of landlord-tenant relationships, we can provide a contextual framework on where individuals fall into this spectrum.

The political tenant

This tenant inherently sees the landlord-tenant relationship fraught with tension because it begins with the presumption that the landlord is powerful, and the tenant is weak. When the landlord communicates with the political tenant, the tenant is always wary that the landlord is attempting to exploit him or her.

The silent tenant

The silent tenant is just too busy to engage with the landlord and as a result, the landlord may be obstructed in the relationship. For example, the landlord may send letters that go unanswered. When the time comes to make repairs and proper notice is served on the silent tenant, perhaps the landlord still cannot gain access to the unit – the tenant just doesn’t want to be bothered.

Passive aggressive tenant

The passive aggressive tenant can be disappointing because these type of tenants are nice as pie and you think you have a great relationship with such pleasant people but in the end, the tenant takes a surprising turn for the worse.

Passive aggressive tenants are very polite and engaging when you interact with them and they seem to be ideal residents until asked for some sort of responsibility in return as part of a give-and-take relationship. Once they are reminded of their responsibilities, the passive-aggressive tenant takes a hostile stance.

Although they appear to be very nice when there are no underlying issues, these type of tenants will suggest that the landlord has done something wrong to them when concerns are raised or instructions made by the landlord.

The dysfunctional tenant

The dysfunctional tenant’s personal life is constantly embroiled in crisis, making it difficult for them to properly engage in a landlord-tenant relationship. Oftentimes, the dysfunctional tenant will articulate the source of dysfunction to the landlord, in an attempt to gain empathy or sympathy. When the personal crisis leads to nonpayment of rent or other problems in the rental unit, the dysfunctional tenant has no shortage of excuses.

The fifth profile is the perfect tenant who religiously pays rent on time, responds to requests, they are personable and honorable, and that’s the type of relationship landlords would most likely expect.

Let’s move on to how rental property owners can respond to each persona.

As for the political tenant, communication should not be about the relationship itself, but about best practices in the relationship. If, for example, the tenant who has politicized the relationship has not paid the rent on time, you can address the failure to pay rent by saying, “you promised to pay the rent on time, we have a contract – why have you failed to do so?” Both the landlord and tenant have mutual responsibilities, and it is important to set expectations based on this contractual obligation without getting bogged down in the acrimony the political tenant tends to lean towards.

Documentation is always prudent, but even more so with the silent tenant. When tenants do not have the inclination to interact with the owner, the landlord should document their attempts to reach the tenant and amplify their written correspondence with these muted residents. What we’d like to see at Bornstein Law is a paper trail that shows a good-faith effort on behalf of the landlord to have fluid dialog with a tenant who does not reciprocate, so that when there is a conflict later on – for example, when the silent tenant does not grant access to make repairs because he or she has been uncommunicative – you have documentation that shows you as a landlord did your part to have open transmission of information.

When the passive aggressive tenant becomes animated and the landlord believes the tenant is incorrect, landlords should not get involved with drama but instead, pacify the situation. These tenants have a propensity for long-winded dialogue and emails, which can consume a lot of time and energy. The best practice is to not enlarge the discussion but to pacify the tenant by agreeing to disagree, use limited language, and deflate the aggression by moving on.

What landlords should know about dysfunctional tenants is that it is important to compartmentalize their empathy towards a tenant, which can diminish the control of the situation, and the fundamental objective of effectively running a rental business. The key to dealing with dysfunctional tenants is to see beyond the underlying crisis in their life and be firm with expectations.

In the progression of tenants’ rights, there is an interesting riddle being litigated: What, exactly, is a “single-family home” insulated from local rent regulations under the Costa Hawkins Act?

California voters rejected Proposition 10 in 2018 and by so doing, drew a line to temper a city’s impulse to impose rent and eviction controls on certain properties, including single-family homes in most cases. Yet words matter.

Rent control by semantics?

The will of the voters could be circumvented and the agenda of tenants’ rights advocates superimposed, of course, if  a “single family home” is redefined. If the law changes the meaning of a single-family home, it naturally follows that protections will be stripped away from unsuspecting owners who become subject to a new regulatory regime after the language has been altered.

It seems that courts are open to hearing the argument that individual living quarters are considered a “dwelling unit” and thus, subject to rent regulation.

An Alameda County judge recently ruled that the owner of a four-bedroom detached home was indeed answerable to Oakland’s Rent Adjustment Program (“RAP”).

In issuing his ruling, the judge noted that, “For the purpose of landlord-tenant law, a ‘dwelling or unit’ or a ‘dwelling unit’ is not the entire property to which an owner holds title; rather it is an area understood to be committed to the habitation of a given tenant or tenants to the exclusions of others.” Inquiring minds can read the full decision here.

The same logic was used in this Southern California case, where the court ruled that in order for the property to be exempt from the Los Angeles Rent Stabilization Ordinance, a single-family dwelling must be “detached.” It found that the tenants’ rentals are not detached, but that each is part of a single larger structure containing other rental units.

So, gaining steam is a new logic that separates the parts from the whole. If single-family homes are the total pie, living quarters rented out to tenants are a piece of the pie. Those slices of the pie, it is being successfully argued so far, are governed by the protections given to tenants under local ordinances.

An independent judiciary

While we understand in math that fractions are part of the whole, the law has no mathematical certainties. What we have in law are competing narratives. Bornstein Law trusts that the courts will see beyond the horizon of landlord-tenant disputes and ensure all interests are considered impartially.

Where Bornstein Law fits in

Long before new legal theories were articulated by tenant advocates, we have warned that so-called rooming or boarding houses present unique challenges and especially so when tenants move in at different times with multiple rental agreements. Not to mention myriad code issues such as padlocks on the doors of individual rooms, and so forth.

Normally, we would say the stakes are ratcheted up in rent-controlled jurisdictions, but if tenants’ advocates have their way with case law, there will be no distinction with single-family homes.

Rest assured, the law is increasingly turning against landlords who create improvised or crowded living quarters just because space exists, and this disfavor has now trickled down to homeowners who may just want to make ends meet or get a few extra bucks by renting out a room or two.

As always, you can count on Bornstein Law for proper counsel in any type of rental relationship, however mundane or complicated.

We’ve all seen the anti-tobacco propaganda plastering the airwaves, but a revolution against vaping has been long underway. In San Francisco, for example, over 68% of voters recently ushered in Proposition E, a ban on the sale of flavored tobacco products including e-cigarette liquids, flavored little cigars, and menthol cigarettes.

In case you were wondering, landlords can prohibit the use of electronic cigarettes, also known as e-cigs, vapes, vape pens, mods and tanks, among other terms. The newest craze is the brand-centric term of “JUULing.” Some e-cigarettes are designed to resemble a traditional cigarette, while others take the appearance of cigars, pipes, pens and even sleek USB flash drives.

However cleverly marketed as a tool to improve the lives of smokers with an alternative and to accelerate cigarette displacement, the California Business and Professions Code, as well as the California Health & Safety Code, makes no distinction. Vaping is considered smoking and tobacco products include any “device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but limited to, an electronic cigarette, cigar, pipe, or hookah.” It is well settled, then, that vapers cannot circumvent prohibitions of smoking, and this extends to rental units.

Under Cal. Civ. Code §1947.5, a landlord of a residential dwelling may prohibit smoking of any tobacco product, including electronic cigarettes, on the property or any portion of the building.

Now that we know that landlords can ban e-cigarettes, let’s dive into the “why” and “how.”

Although chain-smoking tenants notoriously leave behind nicotine-stained film that discolors everything the smoke comes in contact with, e-cigarettes are no better. Vaping is a misleading term, because the vapor is not water, but glycerin. Although semi-transparent, it does not go “poof” and evaporate into the air. It is slightly oily and the emissions are closer to aerosol gas than actual water vapor, holding particles composed of chemicals, flavoring and preservatives. These agents stick to any surface they encounter and after a long while, these particles form a thick film that is extremely vexing to discard.

Carpets, painted surfaces, and ductwork are especially difficult and expensive to clean. If you’d like more on the science of cleaning the damage left in the wake of vaping, consult this article from Landlordology.

Quiet enjoyment

In many venues, we’ve said that implied in every California lease is the tenant’s right to use the property for its intended purpose without interference. The fruit or candy-flavored vapor of electronic cigarettes may very well violate this covenant.

One of the take-aways from our in-depth piece on the use or cultivation of cannabis in rental units was that while the people have spoken and many landlords have joined the chorus who have legalized marijuana, neighboring tenants may not enjoy the putrid odors. To mar the quote of one famous Supreme Court Justice,  your right to toke ends where someone else’s nose and lungs begin. So, landlords who condone the use of electronic cigarettes, cannabis, or any tobacco product for that matter, must consider not only his or her preferences, but the collateral damage inflicted on other bystanders.

Ceasing the use of nicotine-delivering devices

Of course, nicotine devices in whatever shape or form are addictive and so it’s not beyond the realm of possibility that renters will ignore the ban and smoke anyway, requiring landlords to act. Rental property owners should consult with an attorney to review the lease to see if it needs to be updated for the modern age of vaping and other circumstances that may not be anticipated in a stale or templated rental agreement. In some circumstances, a change of tenancy, with proper notice, may be required to effectuate new rules imposed by the owner.

If other building occupants complain about the noxious odors and/or vaping residue emanating from the tenants’ unit, you certainly could allege that the behavior constitutes a nuisance and possibly proceed on a nuisance eviction.  Typically, even if a tenant has the “right” to smoke in a unit, if others complain, our office is able to proceed on a theory of nuisance.

In our earlier article, we said that what can be asserted without evidence can also be dismissed without evidence and stressed the importance of producing authentic testimony, documents, and other evidence in the event a landlord-tenant dispute is enlarged and lands up on the courthouse steps.

When a client comes into our office, we can immediately get a gut level reading of the quality of their documentation. Some of our clients have beautiful files, in perfect chronological order, with leases, rent increases, and tenant correspondence, even a log of telephone calls in the actual file. Other clients’ files look like a hurricane and this disorganization or lack of documentation becomes problematic in the unfortunate event litigation arises out of a failed rental relationship.

Property management companies tasked with overseeing bookkeeping, trust accounts, and complying with DRE rules and regulations have their own unique risks in their fiduciary duty if bookkeeping is not meticulously in order. When the California Department of Real Estate knocks on the door and discovers untidy books, the property management company can lose its license. Further, if any irregularities are discovered in client accounting statements, it can be calamitous. Daniel Bornstein addresses this more at length in this webinar on the top 10 pitfalls for property managers, but let’s move onto how long a landlord should keep documents after the tenancy has been terminated.

Once a tenant moves out, how long should documents be preserved?

This question is one of cauterizing risk and the short answer is that documents should be preserved until you are no longer liable in a potential criminal or civil lawsuit. In one of our most widely disseminated posts, we noted that tenant lawsuits are proliferating throughout the Bay Area, and even the most studious of landlords are susceptible.

Perilous actions take many forms, be it wrongful eviction, constructive eviction, harassment, myriad breaches of the rental agreement, violation of any number of local ordinances, personal injury or negligence, and more. Contact our offices to learn how long the tenant has to raise claims after he or she has moved out.

Also, keep in mind that keeping documents accessible may be prudent in the event of a state or federal tax audit. Generally speaking, the IRS can audit a landlord’s tax return for up to six years or even longer if fraud is suspected.

The preservation of documents is a double-edged sword. On the one hand, it is helpful for the purposes of recordkeeping and may be a source of exculpatory evidence against the claims of a disgruntled tenant. On the other hand, an enterprising tenant attorney may request archived documents be produced as part of an onerous and expensive discovery process.

If it’s the landlord’s policy of destroying documents, this should not be a shredding party but rather, the owner should use discretion. If there is a claim at hand, deleting documents relevant to the case will raise eyebrows.

Did the tenant move in like a lamb and move out like a lion?

How long to preserve documentation and correspondence will be shaped, in part, by the nature of the client’s departure.

From our hard-won experience, when the tenancy ends amicably with the residents vacating at their own volition without a dark cloud of notices, prodding, haggling, arguing or rent board appearances, the chance for any residue is small. When there is a history of acrimony between the landlord and tenant, however, your odds at facing a lawsuit down the road increase exponentially. Whenever possible, Bornstein Law likes to obtain a release of claims from tenants, but this goes beyond the scope of this article.

In conclusion

We are sticklers for documentation at Bornstein Law, and generally speaking, the more documentation, the better. This should be well-organized and thought out policy evenly applied. The life cycle of documents begins even before the tenancy begins and continues throughout the duration of the rental relationship, and even beyond.

Perhaps you do not have an imminent dispute, but like going to the dentist for a routine check-up and cleaning, perhaps it’s time to sit down with an attorney to ensure your lease is up to date and your documents are in order. Don’t do the heavy lifting later – an ounce of prevention is worth a pound of cure.

At Bornstein Law, we’ve always likened litigation to a game of tug of war – the harder each side tries to win and pulls on the rope, the tighter the knot becomes. With that in mind, our approach is to untangle the knot and not enlarge the dispute. Generally speaking, 99% of cases settle and ideally, disputes are resolved amicably with the least cost and complications, but we all know it’s not a perfect world we live in. Let’s assume the tenant strenuously pulls and the situation is in fact enlarged.

When you get the dreaded call from our office to inform you the tenants are disputing an eviction, beads of sweat may spill from your brow, but it’s time to be composed and get all of your ducks in a row.

It’s been said that what can be asserted without evidence can also be dismissed without evidence.

Whether the underlying eviction action is based on unpaid rent or eviction for cause, the plaintiff (landlord) has the burden of proof at trial and it is their duty to prove that either there is rent owed or the tenants are in violation of one or more lease provisions.

In law, what we have are competing narratives, and if the unlawful detainer lawsuit goes to trial, it will ultimately be up to a judge or jury which narrative prevails, after reviewing the testimony, documents and other evidence presented by each of the parties.

Getting your financial house in order

Many overexuberant owners of rental property march into court with oral claims of non-payment of rent without bank statements and tenant ledgers, and other supporting evidence. To obtain a Judgment and a Writ of Possession to evict a tenant, the landlord must prove each of the following elements of the case through a combination of witnesses and documentary evidence:

• The existence of a written or oral lease
• The occupancy of the leased premises by the tenant
• The amount of the agreed-upon rent
• The failure of the tenant to pay the rent

A rent receipt or a canceled check, of course, would be the easiest way for a tenant to prove that rent was paid. Every so often, we encounter landlords who mistakenly accept rent payments after the unlawful detainer action has commenced. This is a cardinal sin because if the landlord deposits any money from the tenant during the unlawful detainer process, the tenancy has begun anew – the owner has forfeited the right to proceed. Taking rent after the expiration of the 3-day notice to pay rent or quit is so egregious, it made our list of the top 5 reasons why landlords lose unlawful detainer actions. Take a look.

Like unpaid rent cases, sufficient evidence should be gathered to prove other lease violations that precipitate the unlawful detainer action. For example, if the evictee caused damage to the rental unit, it is important to bring along pictures, videos, or any other proof that would back up the landlord’s claim.

What to bring to court

The following list is not exhaustive but serves as a good starting point on what rental property owners should be armed with on the day of reckoning in court. Remember, this is not a platform to angrily vent your grievances about a nightmare tenant, but to submit appropriate, authentic evidence to paint a compelling reason as to why the tenant should be transitioned out of the unit.

• The Notice to Pay Rent or Quit, or the Notice to Cure or Quit if based on another reason;
• The lease agreement with the tenant’s signature;
• Correspondence with the tenant, which may include letters you wrote or received about the rental unit, emails, text messages, etc.
• Photos or videos that show unsafe or unhealthy conditions if the landlord alleges the tenant damaged the unit;
• Building inspection reports, if applicable;
• Bills from any contractors you hired to fix alleged damages;
• Evidence from neighbors of the tenant if they lodged complaints against the tenant you are attempting to evict
• Other witnesses who have personal knowledge of the facts.

In the event witness testimony is warranted, it is best to get a subpoena issued and properly served to compel his or her presence in court. This is true with willing, cooperative witnesses whose employers require that a subpoena be served on the employee to allow time off to court.

Tenant defenses

At Bornstein Law, we’ve had cases that seemed to be complicated, only to be resolved painlessly. When we broker a successful outcome for landlords, their praise is often prolific, although, in the back of our mind, we breathe a sigh of relief and say, “wow, we were lucky.” Conversely, we’ve had cases that had all of the indications of being easy, only to have what would be a perfunctory unlawful detainer action turn on us and become mired in complications.

One of the biggest variables in this equation is whether the defendant is represented by any number of ferocious tenant attorneys that are prone to articulating affirmative defenses to the unlawful detainer action, so let’s talk about them.

We noted in an earlier post on California’s implied warranty of habitability that a favorite gambit of tenant attorneys is to allege the rental unit is unfit or unsafe for humans to occupy and thus, the tenant is absolved of responsibility to pay rent for the substandard unit.

Indeed, landlords have the duty to maintain a rental unit according to a set of minimum standards, codified in Cal. Civ. Code §1941, 1941.1, and 1941.3. In this video, we’ve outlined nine bulleted points on what these standards are.

We hasten to say that in addition to relevant state law, there may be local ordinances and building codes that dictate what constitutes a habitable rental unit and so landlords otherwise compliant with statutes may be in violation of rules closer to home.

The tenant or his or her counsel commonly argues that since the rental unit is not in liveable condition, withholding rent is justified, an argument that holds water under Cal. Civ. Code § 1942 and the seminal case of Green v. Superior Court.

The importance of providing evidence extends to the tenant and the burden of proof is shifted to the tenant when this affirmative defense is asserted. Other stalling tactics include any number of frivolous pre-trial motions, such as a “motion to quash service,” motion to strike, allegations of discrimination, and still more demurrers designed to put a monkey wrench into the court case and ratchet up the legal costs of owners.

Parting thoughts

When landlord-tenant relationships reach a boiling point and arrive at the courthouse steps, sound evidence is critical to gaining an upper hand during the proceedings. Regardless of the merits of the case, a lack of evidence not only will dampen a landlord’s chances of effectuating a legal eviction. Without evidence in the unlawful detainer action, the process can deliberately drag on for months and ensure the tenant lives rent-free.

Bornstein Law can stop the madness – please consult us first before going down a rabbit hole of complexity that surrounds disputed eviction actions.

It’s back to basics at Bornstein Law. While our latest articles on Oakland’s slippery slope towards expanded rent control and other posts have been reactionary, certain immutable rules do not blow in the political winds. One of them is state law concerning security deposits.

A bit of trivia: Disputes over security deposits are the most common reason why landlords are dragged over the coals in Small Claims Court, and it’s no mystery why. Rest assured, one of the first things on the mind of outgoing tenants – even before they ask themselves how to get that giant sofa around the narrow doorway – is how they are going to get their security deposit back on moving day. Yet dealing with these disputes are anything but trivial.

This topic recently graced itself in the media after a California billionaire developer has been accused of wrongly keeping millions of dollars in rental security deposits from thousands of tenants. Former tenants also claim they were not provided adequate reasons for damages in apartments when they moved out, as required by state law. Instead, reads the lawsuit, generic descriptions such as “maintenance charge,” or, “cleaning charge” are listed.

Presumably, the billionaire has some financial cushion and can take a hit, but other landlords don’t have the luxury to be so heedless – a costly lawsuit can decimate their rental business.

Security deposit rules are codified in California Civil Code Section 1950.5 and spell out four categories as lawful deductions from security deposits. Landlords may be able to keep all or a portion of the tenant’s security deposit for enumerated reasons:

• Repayment of back rent at the end of the tenancy;
• Repair damage to the unit that is not ordinary wear and tear;
• Cleaning the premises to restore it to the condition at the beginning of the tenancy; and
• to remedy other defaults that may be designated by the rental agreement.

The law cannot anticipate all circumstances, and so it’s plausible that other charges can be justified on a case-by-case basis.

What is normal wear and tear anyway?

When a tenant absolutely shredded the carpet or completely stained countertops bright red, it’s a clear reason to deduct from the tenants’ security deposit. Ditto for the condition of this apartment – when we shared this photo, it went viral.

For less egregious defects, it’s a judgment call.

Wear and tear is the average deterioration of furniture, carpets, and fixtures of a rental property due to regular use over time and although California vaguely defines this term, there is ample case law that provides guidance. Scuff marks on the wall, small chips of paint from door frames, tread and dirt in carpets, small nail holes in the wall, minor wear on appliances, and the natural decrease of useful life for appliances and carpeting can be considered the result of the tenant using the property for its intended purpose.

For those of you who are visual, we’ve put together a handy, one-page PDF that provides a framework to determine whether defects rise to the level of neglect or if blemishes are to be expected in the natural course of the tenancy.

Download our Security Deposit Deduction Guide…

Bornstein Law has a keen eye for what is reasonable wear and tear and what is not – when in doubt, please consult us first.

Security deposits can come in many shapes and forms

They can be called last month’s rent deposits, pet deposits, key deposits, and others, but don’t let these names fool you. Under the law, they are considered the security deposit period, and cannot exceed legal limits when they are all added up.

Also, keep in mind that certain courts have said itemized deposits can only be used for its stated purpose. For example, pet deposits can only be used for the damage that Fluffy wreaked in the apartment, and not for any other damages unrelated to the pet. To avoid exceeding the statutory maximum and ensure the deposit can be used towards any loss, we advise having a single security deposit.

What the landlord can ask for

California prescribes the maximum dollar amount owners can charge. For unfurnished apartments, landlords can ask for a maximum of two months’ rent if the apartment is unfurnished and up to three months’ rent if the residence is furnished. Owners are entitled to ask for an additional half-months’ rent when the tenant has a waterbed.

Although state law does not require landlords to pay a tenant interest on the retained security deposit, some rent-controlled cities do mandate this. San Francisco is in a rather exclusive club of cities that specify the interest rate to be paid. The rate of interest owed on deposits is established by the Rent Board.

A word about “non-refundable” deposits

If you have “non-refundable” deposit, for example, an automatic deduction for flea spraying if a pet was on the premises, or a deduction for painting, steam cleaning, replacing the carpets and the like, this flies in the face of the law. When a tenant complies with the lease terms, he or she is entitled to all of the security deposit back unless there was serious damage.

Move-out inspections

California has one of the most cumbersome security accounting rules. Every tenant has the right to a pre-move-out inspection on the eve of vacating the premises. If the tenant waives this right, you have no worries. However, if a tenant asserts his or right to a pre-move out inspection, he or she must be afforded the opportunity to be present during the walk-through inspection.

This exercise must take place 14 days prior to the tenant’s actual transition. Any deductions the landlord intends to take after his or her observations of the unit’s conditions must be itemized in writing. During this period of time, the tenant has the ability to remedy any itemized deductions in order to preclude the owner from taking them.

When the tenant finally delivers possession of the unit, it’s time to conduct security deposit accounting, whereby the landlord documents any deductions. Landlords have 21 days to perform this accounting and return a tenant’s security deposit in full or partially.

If any deductions are taken from the tenant’s security deposit, the partial refund check must be accompanied by a written itemized statement that lists the amounts deducted and the reasons for the deductions.

If the deduction exceeds $126, the landlord must share copies of receipts for the charges incurred to repair or clean the unit. If the tenant takes issue with deductions or he or she did not receive an itemization accompanied by receipts, they can send a letter to the landlord, and even though the tenancy has ended by this point, any correspondence should be taken seriously – if the landlord does not respond within a reasonable time, it is ripe for a Small Claims Court Action.

Parting thoughts

We remind landlords that when the carefully choreographed steps of the security deposit are ignored, liability is not limited to the dollar amount of the security deposit. Courts are all too willing to punish nonchalant owners who hold tenants hostage with the security deposit and unnecessarily pocket money just because the tenant forked it over. A phalanx of tenant attorneys will gladly help tenants settle the score.

When it comes to security deposits, documentation is specialized, timelines are unforgiving, and the rules must be followed to the letter. Bornstein Law is very good at managing landlord-tenant relationships from the cradle to the grave of the tenancy – contact our offices to avoid or resolve conflicts and cauterize risk.