Legal Corner

Written by Apartment Management Magazine on . Posted in Blog

By Stephen C. Duringer, Esq., The Duringer Law Group, PLCQuestion         Normally I love the smell of garlic, but enough is enough!  I’ve been receiving escalating complaints from my residents concerning a housing tenant on Section 8, who seems to use a bit too much garlic and curry when cooking meals.  The smell permeates the building and has been bothering the other residents.  Other than the garlic and curry complaints, she is a great tenant, don’t want to lose her, but I certainly can’t lose the other tenants!  What to do? 

Answer           Since you don’t want to lose her as a tenant, then you should send her a letter explaining the complaints and reminding her that she cannot interfere with the other residents’ use of their apartments.  The objectionable smells wafting from her apartment are entering the others and bothering them.  Keep it friendly but firm, offer suggestions, i.e. open windows, air purifier, take a cooking class, etc.  When that doesn’t work, then a three day notice to perform covenant or quit requiring her to cease her objectionable conduct could be served.  Depending upon the severity of the matter, you could either proceed to evict based upon the notice to perform, or you may terminate the tenancy with a ninety day notice to terminate the section 8 housing contract.  Keep in mind that the threshold of ‘good cause’ is low after the first year of a housing tenancy, and the risk of losing good tenants due to her objectionable behavior is very real and actionable.

 

Question         Never got around to installing the CO (Carbon Monoxide) detectors in my apartments, I know it was required, but just didn’t have the time to install.  Any rush?

 

Answer           Yes, a violation of the statute is an infraction punishable by a fine of up to $200 per offense.  Before a fine is levied, the property owner must receive a thirty day notice to comply.  The greater risk is in the event of a CO poisoning inside your apartments causes a death, or worse severe brain damage in a child or other resident.  Your failure to comply with the statute, negligence per se, will support a very large jury award against you.  An intentional non-compliance with the statutory requirement can be very problematic for you and may actually provide grounds for your insurance carrier to deny your coverage.  Best to get the required CO detectors installed as soon as possible.

 

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         Can’t seem to keep my apartments maintained.  Lately, it seems like they are falling apart.  I do the best I can, I fix most stuff myself, and contract out some, but it seems like some of my tenants are sabotaging the apartments.  I’ve replaced the smoke detectors in one of my rentals three times in the last year.  I know something’s up, what do I do?

 

Answer           It’s more important now than ever before that you establish and follow an operations and maintenance plan when managing and maintaining your rentals.  Not only is it just good business sense to maintain your rentals properly, but also the law mandates your prompt response to complaints of serious habitability defects.  It is critical to identify tenants who engage in damaging and destructive conduct.  Although the code specifically precludes a tenant from benefiting due to his inflicting damage to the apartment, often it is difficult to prove the tenant caused the habitability defect.  A good practice to enact is to create a maintenance log of repairs to each unit.  Many owners will require a tenant “sign off” when the repair is completed, other owners photograph the repaired item upon completion as proof of completion.  These practices will support your claim that the “self-destructing” smoke alarm is being damaged by the tenant.  Several pieces of legislation have been enacted to crack down on the small minority of landlords who fail to properly maintain their buildings.  Depending upon the severity of the defect, and providing that it is not tenant caused, a landlord may be cited by one of several governing agencies and given a period of time, ten to thirty-five days to make the repairs.  If the repair is not completed as required, there are provisions that would allow the governing agency to make the repair and add the fees and costs of correction as a lien against the property.  Additionally, legislation eliminates the tax benefits to the owner during the period of non-compliance, and in extreme circumstances, precludes an offending owner from demanding or accepting rent.  Now more than ever before, it is critical that you document your repairs and identify the residents who are engaged in sabotage or other destructive conduct.

 

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.  Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 285,000 landlord tenant matters throughout California and has collected over $200,000,000.00 in debt since 1988. The firm may be reached at 714.279.1100 or 800.829.6994.  Please visit www.DuringerLaw.com for more information.

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