If you own rental properties in the state of California, or are hired to manage such properties as a professional landlord, you may already know that there are a number of laws that affect and influence the things you can and cannot do with regard to those properties and the individuals that rent them. Given the depth and breadth of the laws in California, however, it is difficult to be constantly aware of each and every law, regulation and court decision that affects how you are able to conduct your business.
For example, if you have a tenant who regularly has loud music coming from their apartment, or has pungent smells sometimes permeating from their apartment into the common areas or their neighbors homes, what can you do? What must you do whether or not you receive complaints from that tenant's neighbors? On the other hand, let's say you need to conduct some repairs on the building, and those repairs involve some level of construction that will result in noise, dust and debris. How do you go about conducting those repairs so as to not run afoul of your tenant's rights, or if some level of violation of tenant's rights is unavoidable, how do you best go about doing that?
Situations like these are often fact-specific, and depend on the unique circumstances surrounding them. When you run into a situation where there is no obvious answer, it is often valuable to seek professional advice on how to proceed. An attorney, experienced in landlord tenant law, can be a valuable resource; not only for dealing with a dispute once it arises, but also for providing good advice that can help to prevent a dispute from arising in the first place.
Ideally, the landlord and tenant relationship is one that has a minimum of interaction, consisting only of the various steps that are involved in creating a tenancy (i.e., potential tenants viewing the premises, submitting and application, reviewing and approving that application, then signing the lease agreement,) and then collecting rent on a monthly or less frequent basis. Indeed many, if not most, leases function in just this way. The tenants pay their rent, and in return receive quiet use and enjoyment of the premises. Something may occasionally break down or otherwise need repair, but other than that; there is no need for the landlord and tenant to interact beyond the payment and receipt of rent.
In some cases, however, it does not happen that way. Either there is a significant problem with the premises, a problem with the tenant's behavior or some other issue that brings a landlord and tenant into conflict. When this happens, it is important for the landlord to know what can and cannot be done, consistent with California law, and how to best go about resolving whatever kind and degree of problem arises.
There are, in California, what are called implied covenants that apply to all lease agreements. These are essentially additional contractual terms that apply, even if they are not explicitly stated in the lease agreement. They apply for the benefit of the tenant, and are enforced against the landlord. The first is the implied covenant of habitability and the second is the implied covenant of quiet use and enjoyment.
The implied covenant of habitability requires that any leased premises must be in a safe and livable (or occupiable, in the case of a non-residential lease) condition at all times. this includes structural elements, like sufficient insulation, a roof that does not seriously leak and an absence of hazards like mold infestations. If the implied covenant of habitability is violated, the landlord has the obligation to immediately remedy the situation. While the implied covenant is being violated (i.e., unless and until it is remedied) the tenant will have recourse against the landlord which may include withholding rent, repairing the issue themselves and then deducting the amount of repairs from rent, or in some cases, initiating a lawsuit for the recovery of damages.
The other implied covenant, for quiet use and enjoyment, requires that a tenant be allowed to make use of the leased premises without unreasonable interference with their use and enjoyment of that premises. Things that violate this implied covenant can include issues caused by the landlord, such as construction on the apartment building causing noise and dust clouds, or can come from someone other than the landlord, such as a tenant playing loud music at all hours of the night. Regardless of whether the issue is caused by the landlord or someone else, it is the landlord that is responsible for curing the violation of the implied covenant. Sometimes this is in the control of the landlord (e.g., construction on the apartment building can be shifted to hours when tenants are at work, or loud tenants can be warned not to be loud, and evicted if they refuse) and sometimes it is out of the control of the landlord (e.g, construction is going on next door, and creating noise and dust clouds.) Whether or not the breach of the implied covenant is in the control of the landlord, they are responsible to the tenant who may have the right to withhold rent or seek damages in court.
In addition to implied covenants, landlords are required to retain and then return to tenants, any security deposits taken at the time the lease is entered into, or at any time thereafter; upon the termination of the lease. Of course, a landlord may deduct from that security deposit amounts needed for repairs to the leased premises, caused by the tenant, beyond normal wear and tear.
While California law places a number of responsibilities on landlords, including but not limited to implied covenants; there are certain obligations that are placed on the shoulders of tenants. Of course, the primary obligation is to pay rent in a timely fashion, but there are also other responsibilities on the part of the tenant.
In general, a tenant has the obligation to take care of ordinary maintenance and upkeep of the leased premises, but not to effect repairs or modifications. Some of the more common obligations of a tenant are as follows:
- Appliances: If the landlord supplies the tenant with appliances, such as a stove or refrigerator, the tenant is obliged to keep those appliances in a reasonably good condition. The tenant is not obliged to make repairs on those appliances, particularly if they were included as a part of the rental agreement. If they were not a part of the rental agreement, and the appliance requires repair, they will generally have the option to have the appliance removed by the landlord, or have it repaired at their expense;
- Plumbing Fixtures: The tenant must act reasonably to keep the plumbing on the leased premises in good condition. this means no flushing things that are likely to cause blockages or leaks. If a blockage does occur, depending on the severity, it may be the obligation of the landlord to fix the problem. On the other hand, if the problem is minor, such as a slow drain easily remedied by something like a bottle of Drano, or the problem was caused by the tenant's lack of care; then the tenant may be responsible for the problem;
- Using Electricity Fixtures as Intended: As we go further into the 21st century, people are likely to possess more electronic devices and appliances, not less. It is not uncommon for a leased premises to have fewer electrical outlets that needed. This leads to the use of things like extension cords (that have multiple sockets,) surge protectors and power strips. It is the tenant's obligation to use these things in such as manner as to avoid the risk of electric short circuits and power surges that can cause damage to the premises, including the risk of fire;
- Clean Premises: One of the most basic obligations of a tenant is to keep the leased premises reasonably clean and free of garbage or other waste materials. There is no bright line as to how much garbage is too much, but a good benchmark would be if there is a bad odor emanating from the premises, caused by piled up garbage and waste; it is too much;
- No Illegal Activities: Tenants are prohibited from engaging in any illegal activities on the leased premises, not only due to the laws that make whatever those activities are illegal, but also pursuant to the lease agreement. This includes things like using or manufacturing drugs, or storing stolen property on the premises;
- No Damage: The tenant is responsible for keeping the premises in the same condition as when they took possession of it, with certain allowances for regular wear and tear. A good example of regular wear and tear would be with regard to carpeting in an apartment unit. Typically, over a period of 5-7 years, standard carpeting in a unit would be in need of replacement. So, if carpeting in a unit is around 5-7 years old, the tenant would not be responsible for its condition. Anything beyond regular wear and tear is the responsibility of the tenant; things like broken windows or holes in walls caused by the tenant;
- Intended Purpose: If a tenant leases a property for a particular purpose, such as an office space, they may not unilaterally decide to repurpose that premises for another purpose, such as a living space. A tenant may secure an agreement with the landlord to use the property for a different purpose than originally intended, but if the landlord declines, the tenant may not use it in any manner other than its original, intended purpose.
Evicting a Tenant:
While most rental agreements begin and end with virtually no issues arising between landlords and tenants; there will always be a certain percentage where serious issues arise. In some cases, it may be a tenant taking issues with the actions or inaction of the landlord. In other cases, it will be the tenant who is misbehaving, and unless the issues they create can be resolved; it will be necessary for a landlord to evict the tenant from the premises.
Evictions most commonly occur for non-payment of rent. If a tenant does not pay rent, in full, within the times provided for in the lease agreement; the landlord may serve what is called a 3-day notice "to pay rent or quit." This notice should be personally delivered to the tenant at the leased premises, but if they are not available, it can be posted on the front door. If the tenant does not pay the amount of rent listed on the notice within three days, the landlord may commence eviction proceedings with a lawsuit called an "unlawful detainer" action. The landlord will typically need to hire an attorney to file and prosecute the unlawful detainer action, though there is no prohibition on doing it without an attorney... it is just not recommended.
If a tenant is creating a nuisance or is otherwise violation the lease agreement, the landlord may serve a different type of 3-day notice, sometimes referred to as a 3-day "cure or quit" notice. This gives the tenant three days to stop violating the lease agreement (provided that is possible,) and if the tenant fails to do so, the landlord may commence eviction proceedings with an unlawful detainer.
If the landlord wants to remove a tenant for any other reason, there are a number of different possibilities.
If the lease is for a certain time period, and that period is over, the landlord may simply not renew the lease and require the tenant to vacate the premises. In order to do this, however, the landlord may not accept any further rent from the tenant.
If the tenant has committed a serious breach of the lease agreement, such that it cannot be cured and poses a risk to health and safety or property value; the landlord can serve an unconditional 3-day notice to quit.
If a lease is continuing on a month-to-month basis, and the landlord wishes to terminate, they can serve a 30-day notice to quit. This effectively terminates the month-to-month lease. At the end of the 30 days, the tenant must vacate the premises. If the tenant has lived in the leased premises for a year or more, the landlord must serve a 60-day notice, rather than a 30-day.
If the leased premises is rent-controlled, there may be other restrictions and conditions placed on the termination of a lease, including possibly paying the tenant's moving expenses.
If you are a landlord, want to terminate a lease and are at all uncertain which notice to provide, or are otherwise uncertain about how to go about terminating the lease; it is probably a good idea to consult with an attorney, if not retain one outright to handle the matter for you.
Discrimination is Prohibited:
Most landlord/tenant issues arise only after a lease agreement is entered into. Claims of discrimination are somewhat unique in that regard as they can arise not only during the course of a tenancy, but also prior to, and can have serious impacts on a landlord even if no lease is ever signed.
Both California and the U.S. federal government have laws that prohibit property owners and landlords from discriminating against people in the terms and conditions of a property lease, including during the application process. The federal law is call the "Fair Housing Act" ("FHA,") while in California there are two laws that protect against discrimination. These are the "Fair Employment and Housing Act" ("FEHA") and the "Unruh Civil Rights Act" ("UCRA.")
All of these laws prohibit discrimination based on what are called "protected classes." A protected class is essentially a trait that a person has which can be classified, such as race, sex or marital status. Under each of the FHA, FEHA and UCRA, every type of protected class is specifically enumerated. So, if the class appears in the text of the law, it is protected. If a class does not appear, then it is not protected.
While the federal FHA, and the California FEHA and UCRA are all in full force and effect at all times; in nearly all cases, it is the California laws that will be primarily used by tenants or prospective tenants to pursue claims against a landlord. This is so because the California laws have a wider application than the FHA, and the remedies provided by the California laws tend to be more advantageous. That said, tenants and prospective tenants can choose to pursue remedies under the California laws, including a lawsuit in a California court, while simultaneously filing a complaint (but not a federal lawsuit if one is filed in California) with the Department of Housing and Urban Development, commonly known as HUD.
Tenants will typically avail themselves of the rights and remedies under California law because the process and the available remedies tend to be more advantageous to them, as well as the fact that the FEHA and UCRA simply apply to more classes of people. For example, the FHA does prohibit discrimination on the basis of religion, disability, gender, national origin, color and race, but does not cover sexual orientation or gender identity. The California laws do prohibit discrimination based on sexual orientation and gender identity, as well as source of income (e.g., worker's compensation or social security payment.)
The FEHA and UCRA are also advantageous to tenants because they provide a path to filing a lawsuit in a California court, rather than the federal courts which, for better or worse, are less advantageous to plaintiffs in the availability of discovery, the availability of open hearings and an overall pro-business slant. Of course, if a tenant sues under the federal FHA, they can still bring their claims in a California court, but they risk having that case removed to federal court by the defendant. In short, a tenant claiming discrimination will generally pursue their rights and remedies under California law because it provides them with the greatest advantage.
For the most part, the rights and remedies a tenant may choose to pursue are found in the FEHA, while the UCRA tends to affect more peripheral issues relating to the landlord tenant relationship (e.g., access to an apartment building gym, or bathrooms.) To the extent that UCRA claims come into play, they are generally pursued through the procedure provided for in the FEHA.
Under the FEHA, a tenant or prospective tenant believes that they have a claim they will begin by filing a complaint with the Department of Fair Employment and Housing ("DFEH.") The DFEH will then investigate, provide a copy of the complaint to the landlord, and if the case also implicates the FHA, will also file a complaint with HUD. The DFEH will and determine whether there has been a violation of the law. If not, the DFEH will close the case. If, on the other hand, the DFEH finds that there was a violation, they will schedule what is called a "conciliation conference." At that conference, the DFEH will attempt to resolve the claims. If that fails, they will proceed to litigate the case in court.
A tenant or prospective tenant also has the right to pursue their claims on their own in court and bypass the DFEH entirely.
Exceptions to Discrimination Laws:
While California anti-discrimination laws will apply to most rental agreements, there are a few exceptions to the UCRA and the federal FHA which limit their application.
In the case of the UCRA, it applies only to businesses. While the term business is not defined in the text of the act, it will generally not apply in situations where the FHA would not apply.
The federal FHA has specific exceptions to its application. It specifically does not apply to rental agreements for single family homes, provided that the home is rented by the owner, who does not rent more than three different, single family homes, the owner did not advertise for the rental in a discriminatory fashion, and did not use a broker or agent for the rental.
If the rental is in a building with no more than four units, and the owner lives in one of those units, the FHA does not apply.
Rentals by religious groups or organizations are not covered by the FHA, provided that the rental are provided incident to membership in that group or organization and the group or organization does not discriminate on the basis of nationality, color or race. The same goes for any private, non-religious, organization.
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