Legal Corner

By Michael A. Brennan, Esq., Brennan Law Firm

• Question. A long time ago, my wife and I used to handle most landlord-tenant matters ourselves, including drafting and serving notices and, even filing the complaint. It had been a long time since we had any bad apples, but a few months ago, we had a tenant fall behind on rent and, rather than tackle it ourselves, we decided to hire a law firm. The situation resolved itself after the attorney served a 3-day pay or quit notice, but now I have two more tenants who haven’t paid rent this month and I am wondering whether I really need to hire an attorney to draft our notices. I know a lot has changed in the landlord-tenant industry including the way three days is calculated, (and I don’t want to make any mistakes) but it seems drafting a notice should be a fairly simple task that I could save some money on by doing it myself. What do you think?

Answer. First, you should consider continuing your practice of allowing the professionals to draft your notices. Of the notices I see drafted by clients, approximately 75% to 80% of them have some defect, even if only a minor one. The problem is, even a minor defect is fatal to an eviction, forcing you to start the process all over again. Simply stated, you are best served by allowing the professionals to draft your notices. With regard to the method for calculating the three days, changes have, in fact, taken place. While you can serve a notice on any day of the week, (including weekends and holidays), how you calculate the three-day notice period has always been a bit confusing, and the changes that took place didn’t make it any easier. For example, regardless of the day on which the notice is served,

“Day-1” of the 3-day notice period is generally the first day after the notice was served. However, in that majority of situations, weekends and holidays can’t be counted, so serving a 3-Day Pay or Quit notice on a Friday will result in “Day-1” being the following Monday. To add some complexity to the mix, if Monday happens to be a judicial holiday, then “Day-1” will roll over to Tuesday, giving the tenant 3 extra days before the clock starts ticking. Finally, the notice cannot expire on a weekend or holiday either. If the third day falls on a weekend or a holiday, the expiration date of the notice rolls over to the following business day. To summarize this, for most notices, you may not count, nor may the notice expire on, weekends or holidays.

• Question. I own a small apartment building in an area that has gone downhill, to say the least. The “defund the police” movement has caused the crime rate to go up and the police no longer seem interested in doing anything about it. I have a tenant who just told me she will be vacating as soon as her son’s school lets out for the summer, so I will have a vacancy. I’ve heard I have to disclose various things to applicants, but I’m not sure whether the neighborhood crime rate is one of them. Not sure I want to lose an applicant by telling them about things that generally have nothing to do with my property. Am I obligated to bring it up?

Answer. In many areas throughout Southern California, crime is a fact of life.  The best way to address questions about crime from prospective residents is to refer them to the local police department for statistics.  Moreover, be very careful not to portray your building as a “security” building or advertise it in any way that may create a false sense of security or safety.  Even then, you may still have a duty to disclose this fact to the prospective resident, even if not asked. For example, if your property has experienced a recent wave of criminal activity, (break-ins, assaults, etc.) or there is an increased risk of harm at your building in comparison to other buildings in the neighborhood, then you would, in fact, have an obligation to inform applicants who ask.

• Question. I have a tenant who has recently fallen behind in her rent. She asked me to come by last weekend to pick up a partial payment, but when I got there, a neighboring tenant told me the delinquent tenant used “Midnight Movers” to leave in the middle of the night. I reached out to her on her cell and, surprisingly, she took my call. She told me that she moved in with her mom and left the keys in the kitchen drawer. While I’m glad I don’t have to go through an eviction, there was nine months left on her lease and the newer buildings in the area seem to be attracting a lot more applicants than my small, older unit. Is there anything I can do to minimize my losses and recoup the rent I will lose while I’m trying to get it cleaned up and marketed?

Answer. Before you do anything else, secure the property and change the locks . . . before an “old boyfriend” she gave a copy of the key to finds out she moved and moves himself in!

The good news is that your former tenant is responsible for all the rent owed under the remaining term of the lease, as well as any costs that you incur in preparing and re-letting the apartment including advertising fees, commissions, etc. In the event you rent it relatively quickly, but for less money than she was paying, she is responsible for the shortfall between the two rental amounts for the remainder of the lease term she had. Still, it is important to remember that you have a legal obligation to mitigate your damages, so you will want to get it cleaned up, (maybe upgraded a bit to complete with the neighboring buildings) and get it re-rented as fast as you can. I encourage you to keep good records in connection with your efforts to re-let the property, just in case she later claims that you “failed to mitigate your losses.” Finally, remember that you will still need to do a security deposit accounting within 21 days of the date on which you retook possession, so document the condition of the unit with pictures in the event there is any damage. You can use the deposit to cover any unpaid rent she left owing, as well as to pay for any damage, as well as the restore the unit to the condition it existed in when she moved in.

• Question. Like many other landlords, the torrential rains that took place a few months ago caused some water damage to a few of our tenants. Most of them were pretty cooperative when it came to working with us to dry their units and make the repairs, but one in particular has been acting like a pain the “you know what.” She made it next to impossible to get into her unit, then complained about the need for the workers to move her belongings to dry the place out. She claims the water caused damage to several of her “high end evening gowns” resulting in her throwing them away and purchasing new ones. I just received a letter from the tenant telling us that she “spoke with an attorney” who told her we have to reimburse her, and that she is allowed to withhold $1,250 from this month’s rent. Included with the letter was her rent check for $1,250 less than she owes! Is that true? Can she do that?

Answer. No, she cannot do that. Serve a 3-Day Notice to Pay Rent or Quit for the $1,250. Generally speaking, a landlord is not liable for damage to a resident’s personal property, unless the tenant can prove there was some degree of negligence on the landlord’s part that resulted in the damage. Moreover, even if she could establish that, her claim for damage to her personal property is entirely independent of her legal obligation to pay rent. If you allow this to occur, it won’t be long before the other tenants get wind of it and start doing the same thing.

This information presented in this article is general in nature and provided to address typical landlord tenant legal issues.  Specific facts and circumstances in connection with a particular situation you are experiencing should be discussed with your attorney.  Brennan Law Firm has grown to become one the most respected and experienced landlord-tenant firms in the industry over the past 12 years. The firm has offices in both Orange and Los Angeles Counties and can be reached at (855) 285-2230.  Visit www.MBrennanLaw.com for more information.