Legal Corner

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

Question          I drove by my apartment building the other day and noticed that one of my tenants put up a satellite dish antenna, not just one, but three.  I just put a new roof on about a year ago. This tenant had the nerve to bolt them right through the new roofing shingles.  Looks terrible.   I’m concerned about water leakage, mold and possibly voiding my roof warranty.  Can they do that legally?

Answer                        No.  Your standard apartment association rental agreement most likely includes a provision prohibiting the tenant from making modifications or alterations to the premises without the landlord’s prior written consent.  The tenant is in breach of the agreement and most courts would agree that the breach is a curable one.  Depending upon the extent of the damage to the roof, the tenant’s conduct may rise to the level of waste, a non-curable breach.  You have at least two options. First, you may remove the satellite dish antenna from the exterior of your building and repair the damage.  You would then deduct the reasonable out of pocket costs from the tenant’s security deposit.  You can then demand reimbursement by serving a three-day notice to perform covenant or quit by demanding that the tenant replenish the security deposit for the amount charged.  A second option would be to serve a three-day notice to perform covenant or quit, by demanding that the tenant return the premises to their original condition by removing the satellite dish and repairing any and all damage to the building.  This option is not preferable because you do not want to instruct the resident to climb on your roof and perform the roof repair himself.  Under either scenario, you would be well advised to document the breach by taking pictures of the unauthorized satellite dishes and the damage that was caused by its installation.  Keep in mind, California law allows tenants to maintain a satellite dish antenna on their patios and balconies, within areas exclusively for the use of the tenant.  These do not, however, give the tenant the right to affix an antenna to your roof or install an antenna in the common areas.

Question          I just received the most curious letter.  Seems my local police department has identified one of my residents as an undesirable, they say he’s suspected of being in a gang and is dealing drugs.  They say that if I don’t evict him, the police will prosecute me for allowing a criminal to operate on my property.  I may even lose the property!  The family has been there for several years, other than a couple bounced checks they have been model tenants.  Help, I cannot afford a vacancy right now, what do I do?

Answer                        In this upside-down world we live in today, this is a growing trend in law enforcement.  Rather than prosecute the criminal, many law enforcement agencies are taking the lazy way out and threatening the law-abiding landlord, forcing them to evict the resident. Rather than locking up the bad guys, just shuffle them off to another community. If the police are certain he is dealing drugs, why isn’t he in the “gray bar hotel”?  If the letter you received is inconsistent with your experience with your resident, follow up with the police department by asking for documentation supporting their claim.  Have there been arrests on the property?  Have illegal drugs been found there?  Ask other residents in the building, gather independent information.  If the information you gather supports your resident’s involvement in criminal activity, act immediately.  Consult your attorney to determine if you have enough facts to support a three-day nuisance notice, or if a thirty day or a sixty-day notice is appropriate.  Remember, a letter from the police department is not enough evidence in court to base a nuisance notice on, testimony from percipient witnesses will be required.              

Question          I’ve been doing my own prospective resident screening for quite a while now.  I think I’m thorough, but I’m just not sure any more.  I’ve been noticing more and more inconsistencies in the applications I review, and I even came across one who out and out lied about who she was!   I’m concerned about all the stories I’ve heard about identity theft.  I just can’t afford to make a mistake.  What can I do to weed out these undesirables and minimize my chances of being fooled?

Answer                        Identity theft has been a growing problem for several years.  Landlords have increasingly been victimized by prospects posing as someone else, using false or fraudulent information.  Often these thieves take advantage of a desperate landlord, eager to fill a vacancy, or a newbie landlord, who hasn’t gone through the school of hard knocks yet.  Completed and signed applications by all adults are a must.  Verify the information provided.  Personally, inspect some form of U.S. government issued photo identification.  Take a photo copy of the ID and keep it secured with your file.  Verify that the social security or the tax ID number provided by the prospect is his number and is valid.  Run and thoroughly review, an eviction and credit check through your apartment association.  If practical, go outside to the prospect’s vehicle, and verify that the license number on the car he just drove, matches the license number he just wrote down on the rental application.  Many ‘hands on’ owners will visit the prospect’s current residence unannounced, prior to approval to ensure the prospect lives there, and doesn’t just sleep on the couch.  You’d be amazed at what you will learn by a simple visit.  Inform all prospective applicants that you have a policy of taking a picture of all residents for the tenancy file.  Follow through with this policy and take a picture of all proposed occupants and keep the picture in your tenancy records. When verifying employment, and residency, ask for a description of the person, and compare the description with the person who filled out the application.  Ask for original utility bills, electric, telephone, cell phone, cable, anything with his name on it.  All of these are tools that may be used in proper screening to avoid renting to an identity thief.  Use these tools consistently, and apply them equally to all applicants, and your risk will be dramatically reduced.

Question          I’m getting conflicting advice about whether I must rent to some one that does not have a valid social security number, nor an official picture ID.  Seems like most of the attorneys and the Fair Housing guys say I ‘cannot discriminate’ and that I must rent to all, regardless of whether or not the prospect can prove who he is, or verify his tenancy history, or his ability to pay the rent.  I have been following that advice for years, and now have a building full of undocumented people, that I could never find in a million years if I ever had to collect from them.  The rent usually gets paid, but the building, and the neighborhood, look like hell.  I want to take my building back, and only rent to persons that qualify, that have verifiable identities and credit, and are good credit risks.  What are my rights?

Answer                        The dirty little secret is that our industry has passively allowed this erosion to occur over many years.  Many landlords have looked the other way, in favor of the quick rental, the cash payments, the full building, the reduced confrontation, we’ve taken the easy way out.  Landlords have been wary of lawsuits claiming discrimination and have believed the bullying taunts and threats from the tenant and immigrant rights activists, that we have just taken the easier and less confrontational course of allowing it to happen.  We blame our government for not addressing the illegal immigration issue; one side of the aisle wanting cheap labor, the other wanting cheap votes.  We blame employers for hiring, and our ‘welfare state’ for creating the magnet that keeps drawing.  Landlords are part of the problem as well. By succumbing to the short-term temptation of the quick rental to the unverified, the undocumented, we are contributing to the problem.  Many landlords are realizing that rather than just complaining, they can be a part of the solution.  Landlords have absolutely no obligation whatsoever to rent to an individual who is unable to independently verify his identity, his past tenant history, and his ability to comply with the terms of the rental agreement, including his financial ability to pay the rent.  Our system of society is built around a numeric social security or tax ID number.  Our life history, good and bad, is reported more often than not, into a data base that is organized by, and sorted by the social security number.  Names are common, but social security numbers are unique.  No two people should share the same number.  Credit as well as criminal convictions are reported similarly.  These very basic requirements should be applied uniformly to all applicants, regardless of race, national origin or ethnicity.  It is just good business sense.  With average rents over $1600 a month, landlord investment of $200,000 or more per rental unit, and a litigation climate that is out of control, landlords must know who their residents are, must reduce their risk of financial loss and must know how to recover from a breaching resident.

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 714.279.1100 or 800.829.6994.  Please visit www.DuringerLaw.com for more information.