Legal Corner

Written by Apartment Management Magazine on . Posted in Blog

Legal Corner

By Stephen C. Duringer, Esq., Partner, The Duringer Law Group

Question.  Most of my residents paid their rent in April, and again in May.  I know it was difficult for many due to reduced hours, furloughs, and lay-offs, but most were able to pay their rent, and many even paid early.  I have a few that didn’t, some I haven’t heard from, some haven’t returned my calls, and have kind of gone dark on me.  I know that there is an eviction moratorium in place right now, and not much I can do until it is lifted, but what should I be doing now in preparation of someday when the moratorium is over?  I can’t just sit around not knowing if they will pay or not.   I am very concerned about June’s rent, and whether my good fortune will continue.  What can and should I do?

            Stephen W., Beverly Hills

Answer.  At the time of this writing, the second week of May, the eviction courts are essentially shut down, except for limited exceptions.  There are statewide eviction limitations in place, and many cities and counties throughout California have chimed in with their own unique requirements.   Most of these restrictions are intended to protect those residents whose ability to pay their rent has been impacted by the COVID-19 pandemic.  

Some local jurisdictions require evidence of such adverse impact, and further require that the resident provide that evidence to the housing provider.  Cities differ as to whether this evidence must be provided before the rent is due, within a certain number of days after it was due, or whether the resident can wait until trial.  Some jurisdictions don’t require any evidence.   As of this writing, the rent that is due and unpaid will be required to be paid to the landlord, in full, but that repayment is uncertain as of this writing, and the time frames will vary depending on the city and or county. 

The California legislature is drafting statewide guidance for deferred rent repayments; however, such legislation is not finalized as of this writing.    And if that is not enough to make your head “spin,” all of these rules are in flux, and they are constantly changing and being ‘updated’ and amended, sometimes daily, and often the expiration dates and repayment periods are extended! 

So, what do we do?   Right now, communication with your residents is imperative.  Thank the ones who are doing their best to stay current, let them know how much you appreciate them.  Follow up with those that are not paying in full or at all.  Keep it professional, let your residents know that the pandemic affects all of us, and that you are affected just as they are.  For those that are impacted, try and negotiate a repayment plan for the deferred rent.  Terms will vary depending on you and your resident, and the jurisdiction of your property, but repayment over three to nine months is typical.  

You will find that most residents are suffering right now, as you are, and want to do the right thing.  The majority will pay when rent is due, and some will make payment arrangements.  Of course, there will always be those who will try and take advantage of the current situation.  Those are the ones you want to identify as early as possible.  If you are an active owner, you already know who these scoundrels are.  For these residents, document your communications with them very carefully.  Communication should be in writing, and consistent with how you normally communicate with these residents.  Confirm the rent that is due and unpaid.  Confirm that you have offered to defer the rent.  Confirm that the resident did not provide you with any evidence that the nonpayment was COVID-19 related. 

Additionally, if the resident is in default under other provisions of your lease, confirm those issues as well.   Now is the time to document your interaction, and their lack of response if appropriate.  When the courts reopen, and yes, the courts will reopen, this documentation will be necessary when you finally get your day in court.  The judges will certainly be sympathetic, but that sympathy will be reserved for those parties who acted in good faith, and that includes both residents and housing providers.  This is certainly a difficult time for all, but you will get through it.  This also is a test of true character, you as the housing provider doing what you can to assist your residents, and the character of your residents, doing what’s right and doing what they can to assist you.  Above all, stay positive, trust your residents, communicate professionally and with compassion.  You will find that the vast majority are good honest folks just trying to do their best and what’s right.  The others, we will deal with when the courts reopen.          

Question.  One of my former tenants took me to small claims court over her security deposit.  She claims that I was unreasonable in spending all of it because she claims she had a cleaning crew come through the place before she moved out.  Well I do not know if she used a cleaning crew or a wrecking crew, because the place was trashed.   Anyway, the Judge in the small claims court apparently liked her, and I guess I lost my temper at the hearing.  When all the dust settled, the judge ordered me to pay her!  Go figure.  The little paper says that I have time to appeal this decision if I want to. I basically wanted to know what happens in the event of an appeal, and whether I could have a lawyer handle it.

                        Gabriel W., Los Angeles

Answer.  A small claims appeal is a “trial de novo,” that is, the appellate hearing will be a “new trial.”  You, as the Defendant, essentially get another chance to prove your case.   By and large, the structure of the proceeding is essentially the same.  However, on a small claims appeal, as opposed to the initial small claims proceeding, you may have an attorney represent you.  In your situation, if you’re afraid that you might lose your temper again, call a lawyer who will talk about the case with you.  Of course, there are times when it’s simply more cost effective to “go it alone,” when the amount you’re fighting over is less than the cost of retaining counsel.  If this is the case for you, and you really feel that you were not treated fairly in the small claims court, then appeal the decision.  Just remember to take a deep breath out in the hallway.   

Question.  I am a resident manager of a 16-unit complex.  I received a telephone call from a person wanting to rent a unit from our small complex.  I asked the prospective tenant if she had any children.  She got offended and told me, in no uncertain terms, that I could not ask that question.  I replied by thanking her for her criticism and hung up the telephone.  Is the prospective tenant correct that I cannot ask if she has any children?

                        James E., Pomona

Answer.  Yes.  Rather than ask how many children will reside in the unit, a more relevant question would be to ask how many occupants would reside in the unit.  Most acts of discrimination in rental housing occur during the resident screening process.  For this reason, it is prudent to put your screening procedures in writing and to adhere to them strictly and impartially.  All rental units must be available to families with children.  Furthermore, rules designed to discourage families from applying to rent may lead to the filing of discrimination complaints.  Minimize the pre-screening over the telephone; you never know if the caller is truly a prospective applicant or just a tester from Fair Housing hoping that you will say something actionable.

This article is presented in a general nature to address typical landlord tenant legal issues.  Specific inquiries regarding a specific 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 in debt since 1988. The firm may be reached at (800) 829-6994.

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