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What are My Rights as a Tenant?

Here’s a situation I encounter frequently. Tenants renting a house or apartment say they’ve called the landlord repeatedly to repair something or clean up pests of some kind, and nothing gets done. What can they do?

Under California law, every residential tenancy, whether under a written lease or otherwise, is subject to a landlord’s warranty of habitability.  This means that when you rent a house or apartment, the landlord has to maintain his/her guarantee that you can live on the premises free from safety and health concerns.

Subjective vs. Objective

Seems pretty clear-cut, doesn’t it? Not entirely, as what’s deemed a health or safety concern may be left open to interpretation using a subjective perspective.  

Say, for example, you’re worried that the roof will cave in because of termites, which you believe are present due to a couple of small piles of wood shavings in the corner of the master bedroom. If you don’t know precisely what the extent of the damage is, your fear is considered a subjective concern. Until an investigation determines termites have attacked a weight-bearing support beam, there’s not much you can do, except report this concern to your landlord.  

A burst pipe, on the other hand, is an unquestionable (and objective) safety and health concern. In this situation, you should immediately contact your landlord (in fact, that’s your obligation as tenant). It’s the first necessary step toward giving them adequate notice of the problem.

My advice is not to rely solely upon a telephone call. A text or email is helpful, but with any of these forms of communications, it can be hard to prove you provided adequate notice of a problem. A landlord can claim the phone call never happened or electronic communications failed.

Therefore, in addition to the means listed above, I recommend you send a letter to the landlord by certified mail (with return receipt requested), so there’s legally acceptable proof of notice to the landlord.

What if the landlord ignores your request?

 In the event the landlord ignores your request to fix a broken toilet or replace a broken window, here are possible options.

Take matters into your own hands. You can repair the damage yourself and deduct the cost from your rent. This must be a “reasonable” repair, so be sure to use the most reasonable repair option (don’t go for expensive parts or labor without the landlord’s written pre-approval). Remember, it must be a serious defect in order to deduct payment from your rent. A bent screen on your window poses no genuine health concern, so if you hire someone to fix it, this would be an unreasonable deduction from your rent without the landlord’s approval.

In order to fix and deduct, neither you, a family member, friend, nor anyone else who is present with your consent can be the one(s) causing the damage. Also, you have to give the landlord notice and a reasonable amount of time to make the repairs (unless it’s an immediate threat, like a roof collapsing).

If you do pay for repairs, be sure to keep all receipts. That way, if you decide to deduct from your rent, you can provide copies of the receipts to the landlord, along with an explanation about why you’re not paying a full amount of rent for the month.

You can withhold rent. This is an option in cases where you determine that the rent you’re being charged isn’t reasonable for the place you inhabit—that is, conditions have made the house or apartment at least partially uninhabitable.

For example, a cracked window in the dead of winter makes a part of your dwelling unlivable, due to extreme cold. You calculate you can use only 75% of the house, so you’ll pay only 75% of the rent. Reminder: You must first give the landlord an opportunity to fix the damage.

According to the law, you can only withhold rent for one month per job. And you can’t use this remedy more than twice in a 12-month period.

Abandon the premises. If a condition is serious enough that you feel you and your family are at risk, you have the legal right to walk away. (Again, only after giving notice to the landlord of the need for repairs and a reasonable opportunity to fix the problem.) If your requests for repairs have gone unanswered, you are legally entitled to cancel the lease.

With each of the options listed, be sure to document everything! Take photographs. Make copies of notices. Keep receipts of out-of-pocket inspections to support your claim.

There are risks involved in either deducting or withholding rent. If the reason for your actions isn’t considered reasonable in the eyes of a judge, a landlord can evict you and hold you responsible for rents and other damages.

As a tenant, you have specific legal rights concerning the safety of your house or apartment. Before taking any action, you should always consult an attorney with experience and knowledge in this area.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.  

Tenants’ Rights When a Property is Sold or Goes into Foreclosure

I’m often asked by tenants what they can do if the house they’re renting is about to be sold by the landlord or is headed for foreclosure. Here’s information that should prove helpful to you in these situations:

In California, landlords wishing to sell their rental property are required to notify tenants in writing of their intention to sell. Many landlords ask tenants to vacate the property promptly, since having renters occupying the property generally limit the pool of potential buyers to investors or others willing to maintain the property as a rental.

Generally speaking, a rental lease will provide terms as to how much time a landlord must give the tenant to vacate the property. .If such written terms are not included in the lease, the legal time requirement is at least 90 days—and notice must be delivered to the tenant in writing.

When a new owner takes over

 If a prospective buyer wishes to purchase the property free and clear of occupants, the buyer can negotiate that the seller ensures the property is vacant by close of escrow. If the seller had not previously provided a Notice to Vacate to the tenant(s), the escrow period may end up being extended, since a Notice to Vacate provides tenants 30 to 60 (or even 90) days to relocate. Furthermore, if the tenant refuses to vacate after given proper notice, then the seller may be required to initiate legal anticonvulsant proceedings for eviction.

In the event you face a Notice to Vacate, you’re entitled to all the privileges afforded by the lease until the period expires (though you still have to pay rent). Whether it’s a foreclosure or sale situation, you can recover all or a portion of your security deposit, subject to any allowable deductions.

If the property is sold or foreclosed upon prior to the completion of a noticed period to vacate, the new owner takes the property subject to the tenant’s lease. I have found that, frequently, new owners offer current tenants “cash for keys”—meaning they will pay tenants to facilitate moving out so there’s no need to resort to legal proceedings (like eviction).

Stay aware of the situation

Tenants generally face a different problem when the property is in foreclosure.  In the vast majority of situations, a tenant’s lease will survive the foreclosure process and the new owner takes the property subject to the lease.  However, to stay in good standing under a lease, a tenant must make rental payments to the landlord/current owner of the property.  How do you know if a piece of property is about to go into foreclosure or seems headed that way? If the landlord isn’t keeping you updated, contact the County Recorder’s office and file a Request to Notice, asking that you be alerted to any foreclosure proceedings. By doing so, you will receive copies of a Notice of Default and Notice of Sale in a timely manner.

Tenants have substantial rights in the event of a property sale or foreclosure, but they must stay on top of the situation in order to maintain those rights. In a foreclosure, for example, chances are good your security deposit will be gone with the original landlord who lost the property—in which case, you can seek return of that security deposit from the new owner. But in order to do so, you must have documentation confirming that the original security deposit was paid (as noted in the original lease or through a cancelled check). So be sure to keep all documents relating to your rental (e.g. leases, canceled checks or other proof of payment, etc.). Don’t throw anything away.

If you learn that the rental property you’re living in is about to be sold or go into foreclosure, contact an attorney. They will help make sure you are able to preserve and assert all your rights as a tenant.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes. 

You Have Rights When It Comes to Your Security Deposit

As every renter knows, a security deposit is the amount of money a landlord usually requires at the beginning of a lease, in order to protect him or her in the event that a tenant breaks the terms of a lease agreement. Depending on the terms of the lease, the security deposit is usually held for any kind of damage to the property.

Here are questions clients often ask regarding their security deposits.

Can the amount of the security deposit be anything the landlord asks for?

No. In California, there are limits to the amount of the security deposit required with regards to a residential lease (commercial properties have completely different rules).

How long can a landlord hold onto the security deposit before either using it for repairs or returning it to the tenant?

According to California Civil Code 1950.5, a landlord has 21 days to either return a security deposit in full or to provide a written explanation (delivered in person or by mail), explaining the reasons for any deduction from the deposit. This explanation must include an itemized list of each deduction (and documentation to back them up) and the landlord must return the balance of the deposit that wasn’t deducted.

One exception: if work is done on the residence but a receipt for those services hasn’t been received in the allotted time-frame, the landlord is obliged to send a good faith estimate of the repairs and then send the actual receipt to the tenant promptly after it’s been received.

The documentation I referred to must include copies of receipts for any third-party work and any supplies or materials used. If the landlord does the work himself, he is entitled to enter a “fair market” labor rate for his hours spent.

What things don’t get charged as part of the security deposit?

  • Ordinary wear and tear. Say a tenant has occupied an apartment for a year or so and it was clear that a new coat of paint should have been applied when the tenant alcoholism first moved in, but nothing was done. In this case, when the tenant moves out, the landlord can’t charge for the cost of new painting. She can only charge for cleaning the unit, in order to make the residence as nice as it was when the tenant first arrived. Upgrades like new carpeting or a new paint job must come out of the landlord’s pocket.
  • Unpaid rent. Unless stated specifically in the lease agreement, a landlord can’t deduct unpaid rent from the security deposit.

Note: A landlord can deduct rent monies from the security deposit if the tenant fails to give proper notice of intent to move out.

What can tenants do if they feel a security deposit agreement has been broken?

If a landlord doesn’t comply with Civil Code 1950.5 or just plain overcharges on various deductions, a tenant can sue for damages in court. “Damages” in these cases generally means the amount of the deposit withheld, plus up to twice that amount in additional damages.

What should a tenant do to prevent this from happening?

Prepare yourself for a possible dispute from day one. Before taking up residence, conduct a thorough “move-in inspection” with the landlord. Note anything that needs repair. Take photographs of any questionable conditions or visibly damaged areas. Keep a copy of this move-in inspection.

Throughout the time you lease the residence, always document anything that happens that might affect the condition of the rental unit. For example, a hole appears in a wall and you fix it. Provide a notice to the landlord and take photos of the wall after repairs are completed.

When the time comes to leave, give proper notice in writing. Also ask for and schedule a “move-out inspection,” again documenting conditions of the premises, and get a copy of the inspection report. Also be sure to give the landlord a forwarding address.

Most importantly, if you believe your landlord is in violation of return of your security deposit, promptly submit a written demand for whatever sums you believe are due. And contact a lawyer. Any delay in responding to this situation can severely impact your right to collect whatever sums are owed you.

Are you in a situation affecting your rights as a tenant? The Law Offices of Ian S. Topf offer free consultation in a variety of issues, ranging from family law, estate planning, bankruptcy, and DUIs and landlord/tenant disputes.