Landlords' Newsletter - Summer 2011

30 YEARS EXPERIENCE – FOR LANDLORDS AND PROPERTY MANAGERS

BY PROPERTY MANAGERS

A Few “Security Deposit” Bullet Points

INSIDE THIS ISSUE…

By Gary Link, Attorney at Law

T

here are so many issues that revolve around the issue of receiving, retaining, and deducting security deposits in residential tenancy situations, that it would be valuable to put a spotlight on a few of them from California Civil Code Section 1950.5.

Editor’s note: The entire code section is available online at www.leginfo. ca.gov/calaw.html, under the category Business and Professions.

(1) What is a security deposit? For the purpose of a residential tenancy in California “security” means any payment, fee, deposit or charge, including, but not limited to, any payment, fee, deposit, or charge, except as provided in Section 1950.6 (application screening fee), that is imposed at the beginning of the tenancy to be used to reimburse the landlord for costs associated with processing a new tenant or that is imposed as an advance payment of rent, used or to be used for any purpose, including, but not limited to, any of the following: (a) The compensation of a landlord for a tenant’s default in the payment of rent. (b) The repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or by a guest or licensee of the tenant.

Don’t Let the Bedbugs Bite!

What is Unlawful Discrimination?

One Solution to Messy Dog Problems — PooPrints TM

...there is no law that a landlord must collect a security deposit; and quite frankly the fact that a landlord may not require advance payment of a security deposit could actually encourage an increase in prospective applicants, whose only pre-tenancy financial requirement would be to pay the first month’s rent. (c) The cleaning of the premises upon termination of the tenancy necessary to return the unit to the same level of cleanliness it was in at the inception of the tenancy. The amendments to this paragraph enacted by the act Continued on page 10

Q & A: Issues Facing Landlords California News – Smoking Law Rental Housing Case Law: Occupancy Issues Landlords Have Rights, Too! Private Property Towing – Basic Laws That Keep You Covered So You’re Going to Court Bruce Mills... “Here’s What Works” CAA Resources for Landlords Published by M&M Property Services and Management www.mmproperties.com 1401 El Camino Avenue, Suite 200, Sacramento, CA 95815 Donald Lord (916) 923-6183, ext. 134

Summer 2011

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recent legal dispute between a landlord and tenant involved bedbugs. These tiny, wingless parasites have been getting much press time and causing landlords much angst. Although large­ly eradicated as pests in the 1940s, bedbug infestations have been spreading throughout the United States in recent years. Their resurgence leaves land­ lords with another pest to fight.

or other routes from nearby dwellings.

Unfortunately for landlords and tenants, bedbugs are “elusive” and usually nocturnal. They can be detect­ ed by bites, as well as fecal spots and blood smears on sheets.

Bedbug eradication usually re­quires a combination of pesticide ap­plications and non pesticide controls, ­such as vacuuming and preventative practices.

About the Bedbug

Landlord Duties Regarding Bed­bug Extermination

When fighting, it is good to know your enemy. Bed­bugs are reddish-brown, flattened, oval, and wingless. They feed exclu­sively on warm-blooded animals. Bed­bugs are hardy insects: They are able to survive a wide-range of conditions, and, according to some experts, can survive without feeding for a year. In humans, bedbug bites may cause skin rashes, psychological effects, and al­lergic symptoms.

Statutes, ordinances, and codes. The legal duty of a landlord to exter­minate bedbugs is dependent on the local law. Many states and municipal­ities, under housing codes and health codes, require landlords to ensure the rental premises are free of pests-in­cluding rodents and insects — which, of course, includes bedbugs. Some lo­cales specifically require landlords ex­terminate bedbugs. Still, in some plac­es, a landlord’s duty to exterminate a pest arises only when more than one unit is affected.

Rental premises may become infested with bedbugs in a variety of ways, including: entering the premises on pets, clothing, luggage, furniture, or wild animals such as rodents, bats or birds; or arriving via duct work

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The Lease. Whether or not local law requires bedbug extermination, the lease language may require the landlord to exterminate pests.

Landlord Liability for Bedbug-Re­lated Damages A landlord may face liability for bed­bug-related damages under a claim of breach of the warranty of habitability. Tenants are legally entitled to a “liv­able, safe and sanitary” rental unit.

An infestation of bedbugs may be considered a violation of this warran­ty. An exception to this may exist if the landlord is somehow able to show that the complaining tenant actually “caused” the bedbug infestation.

If there is an infestation of bedbugs that a landlord has refused to, or been unable to, control, a tenant may claim breach of the warranty of habitability. Under such an action, the tenant may seek rent reduction in the amount of the actual rent less the estimated value of the apartment with the infestation.

Continued on page 18

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What is Unlawful Discrimination?

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landlord cannot refuse to rent to a tenant, or engage in any other type of discrimination, on the basis of group characteristics specified by law that are not closely related to the landlord’s business needs.

• A person’s medical condition or mental or physical disability; or • Personal characteristics, such as a person’s physical appearance or sexual orientation that are not related to the responsibilities of a tenant;or

The California Legislature has declared that the opportunity to seek, obtain and hold housing without unlawful discrimination is a civil right.

Under California law, it is unlawful for a landlord, managing agent, real estate broker, or salesperson to discriminate against a person or harass a person because of the person’s race, color, religion, sex (including pregnancy, childbirth or medical conditions related to them, as well as gender and perception of gender), sexual orientation, marital status, national origin, ancestry, familial

• A perception of a person’s race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability or medical condition, or a perception that a person is associated with another person who may have any of these characteristics. status, source of income, or disability.

California law also prohibits discrimination based on any of the following:

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For more detailed discussion of this topic, go to http://www.dca.ca.gov/publications/landlordbook/ discrimination.shtml. For Housing and Urban Development (HUD) information about California visit http://portal.hud.gov/hudportal/HUD?src=/states/ california

One Solution to Messy Dog Problems — PooPrints

TM

D

og piles are both an increasing public nuisance and serious environmental concern. Pet owners who do not clean up after their pets is an increasing burden for property manage­ment professionals who manage rental properties.

When dog waste is not disposed of, it not only kills grass and plants, but it is also a legitimate health hazard. Dog waste is a breeding ground of diseases and bac­teria, including many that are especially dangerous to children. It is important to everyone that a workable solution be found.

BioPet Vet Lab is an animal testing laboratory located in Knoxville, Tennessee, that specializes in DNA tests that answer questions about dog breed ancestry. They can provide DNA Breed

Identification and Proof of Parentage.

As a result of their work, the company recognized that their DNA expertise could be used to develop a solution to the dog waste problem. The result is Poo­PrintsTM, a waste identification program that was built on a solid scientific foundation. Essentially, it was cre­ated to provide property managers with a means to enforce their “pooper scooper” regulations.

Implementing PooPrintsTM into a community is simple. A property manager can begin by requiring residents to register their dog’s DNA with BioPet Vet Lab. This is done by performing a simple test using a cheek swab. This is the easiest way to obtain the sample needed

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lab’s database.

for testing. The DNA required for the test is isolated from cells that are trapped on the swab. The cheek swab is then sent to the lab for registration, and the dog’s DNA is entered into the

Next, the dog’s waste is col­lected and sent to the lab to be tested, where it is compared to the DNA samples collected for each dog in the community.

If the sample matches the DNA of a dog registered in the community, then it is Continued on next page

One Solution to Messy Dog Problems — PooPrints

TM

Continued from previous page

up to the residential property manager to take action—whether through a warning, fine or other consequence.

Twin Ponds apartment complex is a good example of how PooPrintsTM can solve this common underfoot problem shared by many frustrated property owners. A few irresponsible pet owners were not cleaning up after their pets, even though Twin Ponds was providing pet stations and dog playgrounds on site. These careless pet owners were turning the community’s open spaces, and neighborly relations alike, into a virtual minefield. Not wishing to sacrifice the complex’s reputation and popularity as a pet-friendly community, Twin Ponds management needed to find an immediate solution.

Manager

Debbie

Logan

knew

...it is up to the residential property manager to take action—whether through a warning, fine or other consequence. something had to be done about the matter. “We wondered how we could catch viola­tors easily since the incidents tend to occur when no one is watching,” Logan said. “We researched what other communities were doing and how ‘pooper scooper’ laws were enforced, but we needed a solu­tion that did not rely entirely on eyewitnesses.”

Twin Ponds management selected PooPrintsTM as the solution. Canine registration with PooPrintsTM has

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become a part of move-in orienta­tion, allowing managers to meet the new dogs and reinforce the importance of pet clean-up policies.

The program quickly identified two resident violators within the first four waste samples collected. “The program is just fantastic for us. It was easy to imple­ment and everybody wins,” said Logan. “We are spending less time looking for violators, and residents have a clean, healthy community.”

The problem of pet owners not picking up after their pets is truly tearing apart communities. Cleaning up after a dog isn’t fun, but neither are the potential health hazards of dog waste that is not discarded.

Residential Resource, Volume 22, Number 4, April 2011.

Issues Facing Landlords Q: Can I change my building to a non-

smoking building? I know that a few current residents do smoke.

A: You can legally have a non-smoking

building. However, you must make this change in the same way as any other change in terms of tenancy, (e.g., waiting until the resident’s lease is renewed or by serving a Thirty-Day Notice of Changes in Terms of Tenancy to existing month-to-month residents). You may apply the non-smoking policy to incoming residents immediately, using an addendum to the rental agreement.

Q: Can an owner raise the rent during a tenancy? How?

A: Unless otherwise stated in the

lease, for a fixed term lease rent cannot be raised until the end of the lease term. In month-tomonth tenancies, the rent can be raised after giving the resident appropriate advance notice. The amount of notice required de­pends on the amount of increase. There is no state law that limits the amount or percentage of increase. However, some local communities do regulate rent increases through rent control laws; so check with your attorney

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or the County or City where the property is located.

Q: Is there a required grace period for rent payments?

A: No, there is not. Reasonable late

charges or a Three-Day Notice to Pay Rent or Quit can be imposed immediately. However, one busi­ ness day must expire before the rent is considered late.

To stay informed about current property management and rental issues, search for useful forms, and get news on regulations facing landlords, visit the California Apartment Association website at http:// www.caanet.org.

California Bill Lets Landlords Ban Smoking in Rental Units The California State Senate has approved a bill that would let landlords ban smoking on their properties, including inside rental units.

les, says his bill is designed to give families more smoke-free options.

The bill, SB332, is supported by the California Apartment Association.

Sen. Alex Padilla says there is no prohibition on landlords prohibiting smoking, but his bill specifically makes it clear they have that power under California law.

It passed the Senate in May on a 33-2 vote without debate. It needs to be approved by the State Assembly, then goes to the Governor for his signature.

Padilla, a Democrat from Los Ange-

Padilla's office says more than 30 percent of California's housing is

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Please address comments, requests for subscription or back issues, or advertising to Donald Lord at (916) 923-6183 ext. 134 or e-mail Donald at don@mmproperties.com.

This issue highlights important legal issues that Property Managers and landlords need to know. I hope you enjoy the Newsletter, and thank you for supporting our advertisers.

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apartments and condominiums.

He argues that secondhand smoke can travel between the units through open windows and doors, shared ventilation systems, crawl spaces and other gaps in buildings.

Try to know everything of something, and something of everything.

Horace

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A Few “Security Deposit” Bullet Points Continued from page 1

adding this sentence shall apply only to tenancies for which the tenant’s right to occupy begins after January 1, 2003.

The landlord may not assert a claim against the tenant or the security for damages to the premises or any defective conditions that preexisted the tenancy...

month’s rent. However, the other side of the coin is that there would not be any “deduction” protection for lawfully deductible items.

(3) What is the maximum amount of a security deposit that may be collected in advance? A landlord may not demand or receive security, however denominated, in an amount or value in excess of an amount equal to two months’ rent, in the case of unfurnished residential property, and an amount equal to three months’ rent, in the case of furnished residential property, in addition to any rent for the first month paid on or before initial occupancy. This does not prohibit an advance payment of not less than six months’ rent if the term of the lease is six months or longer. This does not preclude a landlord and a tenant from entering into a mutual agreement for the landlord, at the request of the tenant and for a specified fee or charge, to make structural, decorative, furnishing, or other similar alterations, if the alterations are other than cleaning or repairing for which the landlord may charge the previous tenant as provided by the provisions of Civil Code Section 1950.5.

(d) To remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement.

(2) Should a security deposit be collected? I suppose that if a survey were conducted, we would discover that most landlords in California collect a security deposit from the qualified applicant whose tenancy has been approved.

However, there is no law that a landlord must collect a security deposit; and quite frankly the fact that a landlord may not require advance payment of a security deposit could actually encourage an increase in prospective applicants, whose only pre-tenancy financial requirement would be to pay the first

(4) Can the landlord charge the tenant for pre-tenancy defective conditions or for ordinary wear and tear?

The landlord may not assert a claim against the tenant or the security for damages to the premises or any defective conditions that preexisted the tenancy, for ordinary wear and tear or the effects thereof, whether the wear and tear preexisted the tenancy or occurred during the tenancy, or for the cumulative effects of ordinary wear and tear occurring during any one or more tenancies.

(5) At the same time or after the landlord serves a Notice of Termination of Tenancy (not a Notice to Pay Rent or Quit, a Notice to Perform Covenant or Quit, or a Three Day Notice to Quit pursuant to Code of Civil Procedure Section 1161), is there any other notice that must be given to the tenant regarding the security deposit? Within a reasonable time after notification of either party’s intention to terminate the tenancy, or before the end of the lease term, the landlord shall notify the tenant in writing of his or her option to request an initial inspection and of his or her right to be present at the inspection.

(6) If the tenant requests an initial inspection, what shall I do? At a reasonable time, but no earlier than two weeks before the termination or the end of lease date, the landlord,

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or an agent of the landlord, shall, upon the request of the tenant, make an initial inspection of the premises prior to any final inspection the landlord makes after the tenant has vacated the premises. The purpose of the initial inspection shall be to allow the tenant an opportunity to remedy identified deficiencies, in a manner consistent with the rights and obligations of the parties under the rental agreement, in order to avoid deductions from the security. If a tenant chooses not to request an initial inspection, the duties of the landlord under this subdivision are discharged. If an inspection is requested, the parties shall attempt to schedule the inspection at a mutually acceptable date and time. The landlord shall give at least 48 hours’ prior written notice of the date and time of the inspection if either a mutual time is agreed upon, or if a mutually agreed time cannot be scheduled but the tenant still wishes an inspection. The tenant and landlord may agree to forgo the 48-hour prior written notice by both signing a written waiver. The landlord shall proceed with the inspection whether the tenant is present or not, unless the tenant previously withdrew his or her request for the inspection.

consistent with the rights and obligations of the parties under the rental agreement, in order to avoid deductions from the security.

(9) What if new deficiencies are caused by the tenant between the initial inspection and the final inspection?

Continued on next page Gary Link is an attorney in Sacramento, California who has been representing landlords, apartment complexes, property management and real estate companies in the Sacramento area since 1979. His office has filed over 38,000 eviction lawsuits in Sacramento, Yolo, El Dorado and Placer counties. He has personally litigated over 12,000 eviction trials. Mr. Link is frequent speaker on the subject of landlord-tenant law, fair housing, landlord rights, and evictions for the California State Bar Association, the Sacramento Valley Rental Housing Association, The Learning Exchange, Lorman Education Seminars, as well as other organizations. For legal advice or consultation with Gary Link, or to make an appointment to obtain an updated written rental agreement along with Mr. Link’s rental agreement class, please contact the Law Office of Gary Link at (916) 447-8101 or by visiting his website at www.sacramentolandlord.com.

(7) How does the landlord share the initial inspection information with the tenant? Based on the inspection, the landlord shall give the tenant an itemized statement specifying repairs or cleaning that are proposed to be the basis of any deductions from the security the landlord intends to make as allowed by the Civil Code. This statement shall also include the texts of paragraphs (1) to (4), inclusive, of subdivision (b) of Civil Code Section 1950.5. The statement shall be given to the tenant, if the tenant is present for the inspection, or shall be left inside the premises. Of course, the landlord should keep a copy for him/herself.

(8) What right does the tenant have to remedy the deficiencies stated on the Itemized Statement of Deficiencies? The tenant shall have the opportunity during the period following the initial inspection until termination of the tenancy to remedy identified deficiencies, in a manner

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A Few “Security Deposit� Bullet Points Continued from previous page

Nothing in Civil Code Section 1950.5 shall prevent a landlord from using the security for any purpose specified in the Civil Code that occurs between completion of the initial inspection and termination of the tenancy or was not identified during the initial inspection due to the presence of a tenant’s possessions.

(10) How long does the landlord have to mail or deliver a security deposit statement to the former tenant? No later than 21 calendar days after the tenant has vacated the premises, but not earlier than the time that either the landlord or the tenant provides a notice to terminate the tenancy under Section 1946 or 1946.1, Section 1161 of the Code of Civil Procedure, or not earlier than 60 calendar days prior to the expiration of a fixed-term lease, the landlord shall furnish the tenant, by personal delivery or by firstclass mail, postage prepaid, a copy of an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security and shall return any remaining portion of the security to the tenant.

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Rental Housing Case Law: Occupancy Issues

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ccupancy limitations are one of most controversial areas in the fair housing arena. Local government’s ability to set occupancy standards is limited by state housing standards and the constitutional rights to privacy and equal protection.

home size, was invalidated as a violation of the resident owner’s right to privacy because it was not the least restrictive means of achieving the developer’s goal of preventing overcrowding. The court indicated that an occupancy standard based on objective criteria, such as square footage, facilities, and open space would be more likely to pass scru­tiny. The planning agency had required the cov­enant as a condition for the permit.

Families A rental owner’s occupancy standard of two people per unit was held to violate the federal Fair Housing Act because it had the effect of discriminating against families with children.

The court ruled that the tenants did not have to show that the owner inten­tionally used this occupancy standard to keep families with children from the units.

Park Redlands Covenant Control Committee v. Simon, (1986) 181 Cal.App.3d 87, 266 Cal.Rptr. 199.

Preemption of Local Occupancy Standard

Fair Housing Council of Orange County v. Ayres, (CD. Cal. 1994) 855 F.Supp. 315.

The court held that the City of Santa Ana’s occupancy ordinance conflicted with, and was preempted by, state law. Local governments may only adopt “ more stringent

Objective Criteria A restrictive covenant in a subdivision development that limited occupancy to three or fewer individuals regardless of

Continued on page 26

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Cabinets & Appliances

Electrical Service

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Insurance

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Landlords Have Rights, Too!

E

ver wonder what the rights of a landlord are with respect to his or her tenants? A tenant has a whole range of responsibilities with respect to a landlord and the property the tenant inhabits. Those prospective landlords looking to take out a mortgage and lease property back to tenants would fo well to inform themselves of the various protections under the law with respect to the landlord’s tenants. In California, some of these rights are as follows: The tenant has certain responsibilities and obligations to the landlord as well as certain rights. The majority of the tenant’s obligations relate to taking care of the property and acting in such a way as to not interfere with the peaceful enjoyment of neighboring units.

More specifically, the Landlord and Tenant Act requires that the tenant: • Conduct himself/herself in such a manner as to ensure the peaceful enjoyment of the neighboring units. Guests of the tenant who are on the property with the consent of the tenant have the same obligation.

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• Pay all rent and required deposits and fees on time.

• Not tamper with or remove a properly working smoke detector. The tenant must also test and/or replace detector batteries.

Breach of the lease terms gives the landlord the right to legally terminate the lease and to evict the tenant.

• Keep the premises clean and free from debris, filth, rubbish and garbage.

A landlord may never conceal an unsafe condition on a property or simply post a warning sign. Similarly, a tenant must notify the landlord of any defect that may arise after taking possession of the property or the tenant may become liable for any injury resulting there from.

• Use the premises in a reasonable manner and in accordance with the intended use of the premises.

• Keep all plumbing fixtures as clean as their use permits.

• Use all systems and components of the premises in a reasonable manner and to not abuse them. The systems include, but are not limited to appliances, heating systems, electrical systems, cooling systems, laundry facilities, etc.

A landlord is not liable to a trespasser who is injured on a property if the landlord did not know nor could have known of an unsafe condition.

• Not abuse or deliberately destroy, damage or remove any part of the premises.

For more information, see California Tenants—A Guide to Residential Tenants’ and Landlords’ Rights and Responsibilities by the California Department of Consumer Affairs, avaialble online at http://www.dca.ca.gov/publications/landlordbook/ index.shtml.

• Remove and dispose of all waste and garbage from the premises in a clean and safe manner.

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Continued from page 3

A landlord may face liability for bed­bug-related damages under a claim of breach of the warranty of habitability. Tenants are legally entitled to a “liv­able, safe and sanitary” rental unit.

Preventing Bedbug Infestations With bedbug infestations on the rise, landlords should take all possible steps to prevent bedbug infection of rental premises.

Educate Tenants. Although land­lords have good reason to hesitate in raising the issue of bedbugs with ten­ants, education of tenants on the issue may be the best defense to infestation problems. Landlords can provide ten­ants with fact sheets, explaining what bedbugs are, why the rise of infesta­tions in the United States raises con­cern, and, importantly, how tenants may help prevent an infestation of the rental premises. Tenants can be asked to help by inspecting-prior to enter­ing the rental premises-their newly acquired clothing or furniture, and any luggage following travel.

Lease Terms. Lease terms can re­quire tenants to report sightings of bedbugs. A quick response may help limit the bedbug infestation. The lease can also include requirements that tenants’ mattresses and box springs be synthetically encased to help prevent bedbug infestation. The lease can also specify that the tenant is obligated to allow entry to pest control extermina­tors and to cooperate fully in eradicat­ing any pest infestations.

Train staff. Building maintenance staff can be trained to recognize bed­bugs and signs of bedbug infestations. Early detection is best to limit dam­ages and expenses.

Inspect. Every time a rental unit is vacant, a landlord can have it inspect­ed by a licensed pest control com­pany. This is a preventative expen­diture which could potentially limit much larger expenses associated with infestations.

Sources: Wikipedia-Bedbug

http://en.wikipedia.org/wiki/Bedbug

Legal Lad “Are Landlords Responsible for Bedbugs?”

http://le­gallad.quickanddirtytips.com/

Landlord Forms “Bed Bugs, Property Management &

Landlord Liability” http://www.ezlandlord­forms.com/ Landlord Tenant Law Bulletin, Volume 32, Number 2, February 2011.

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Private Property Towing

Basic Laws That Keep You Covered

W

hile there are many laws involved in private property towing, the California Vehicle Code (CVC) manual describes the basic requirements, which are simple to remember and are easy to comply with. In most cases the lo­ cal towing company you work with will supply your property with the proper signage at no charge as part of their service.

The company you choose to work with must have their stor­ age facility within a ten mile air radius of your location or get authorization from the local law enforcement agency if they are out of that ten mile air radius.

The law requires that an owner/manager or authorized per­ sonnel be present and sign authorization at the time the tow commences. According to CVC section (E)(i), as long as the towing company has a signed agreement authorizing them to tow vehicles for the specified violations, they can remove the vehicles without a signed authorization as long as photos are taken of the vehicle showing them in violation prior to being towed.

hydrant or in a fire lane, or in a manner which interferes with an entrance to, or exit from, the private property.

These are just a few examples of many laws related to private property towing. For more on the California Vehicle Code visit the website http://dmv.ca.gov/pubs/vctop/ vc/vc_index_p.htm. To discuss services available in the Sacramento area, call Sam’s Towing & Transport at (916) 635-1005.

Section 22658, Removal From Private Property, also states: (a) The owner or person in lawful possession of private prop­ erty, including an association of a common interest devel­ opment as defined in Section 1351 of the Civil Code, may cause the removal of a vehicle parked on the property to a storage facility that meets the requirements of subdivision (n) under any of the following circumstances: (1) There is displayed, in plain view at all entrances to the property, a sign not less than 17 inches by 22 inches in size, with lettering not less than one inch in height, prohibiting public parking and indicating that vehicles will be removed at the owner’s expense, and containing the telephone num­ ber of the local traffic law enforcement agency and the name and telephone number of each towing company that is a party to a written general towing authorization agree­ ment with the owner or person in lawful possession of the property. The sign may also indicate that a citation may also be issued for the violation.

(2) The vehicle has been issued a notice of parking viola­ tion, and 96 hours have elapsed since the issuance of that notice.

(E) (i) General authorization to remove or commence remov­ al of a vehicle at the towing company’s discretion shall not be delegated to a towing company or its affiliates except in the case of a vehicle unlawfully parked within 15 feet of a fire

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So You’re Going to Court Service

Editor’s Note: This material is condensed from the website of the Superior Court of California, Sacramento County: www.saccourt. ca.gov/ud/landlord.aspx.

You must then have the tenant personally served with a copy of the Summons and Complaint. You cannot do this yourself, but anyone who is over the age of 18 who is not a party to the suit can serve the papers for you. You may have the Sacramento Sheriff ’s Department or a registered process server serve these papers for you, but you should be aware that they charge a fee for this service. The person who makes service will need to complete a Proof of Service and give it to you. You will need to file this document with the court.

A

s the landlord, you must begin by giving the tenant an appropriate, written notice. If you are uncertain whether this should be a 3-day, 30-day or 60-day notice, you should contact a legal advisor for assistance.

If the tenant does not comply with your demand, you can begin the legal process by filing a Complaint with the court.

You must submit the notice given to the tenant when you file your Complaint. Forms are available online.

The tenant has five (5) calendar days, if he or she is personally served, to file a response with the court. If you do not receive a copy of the tenant’s response by mail, you may want to come to the court, or call the Court to see if an Answer has been filed. You can file the original Proof of Service at that time.

You may file your papers in person at Carol Miller Justice Center, by mail, or you may file electronically. If you submit your documents for filing and want the court to return them to you via mail, you must also provide a self-addressed, stamped envelope with sufficient postage. The clerk will provide you with endorsed copies of the Complaint. You will need to submit your paperwork and pay the appropriate filing fees. If you are unable to pay the court fees, you may apply for a waiver of court fees and costs.

If the tenant does not file a Response to the Complaint If the tenant has not filed a timely Answer or other legal pleading in opposition to the Complaint, you will need to file a Request to Enter Default, a Clerk’s Judgment for Possession,

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and department of the trial once it has been scheduled. You should receive this notice in about one week.

and request a Writ of Po s s e s s i o n be issued for the premises.

Once you give the completed paperwork to the clerk and pay the appropriate fee, s/he will give you the documents that you will need to take to the Sacramento Sheriff ’s Department, Civil Division, to complete the eviction. You cannot evict the tenant yourself.

Preparing for your trial Gather all of the information that relates to your case. This may include witnesses or paperwork such as the following: • A copy of the lease or rental agreement • Any letters you may have written or received about the property • Any receipts you have • Any inspection reports such as reports from the building inspector or health department • Photographs • Police reports • Any other documents that you think will help you convince the judge that the tenants should be evicted

If the tenant files a Response to the Complaint There are a variety of options available to the tenant including filing an Answer or a Motion in opposition to the Complaint. In most cases, an Answer will be filed, and the landlord must file a Request to Set Case for Trial in order to go further. The court will mail you a notice stating the date, time

You will need to bring three copies of each paper with you: one for the judge, one for the tenant, and one for yourself.

Copies submitted to the judge will not be returned. Organize Continued on next page

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So You’re Going to Court Continued from previous page

your paperwork prior to your arrival to court so that you can easily find what you need when you are in the courtroom. You may want to make notes for yourself so that you do not forget to tell the judge something that you think is important.

Presenting your case in court Unlawful Detainer cases at the Carol Miller Justice Center will usually be heard in Dept. 88 which is located on the 3rd floor of the facility. Try to arrive a few minutes before your case is scheduled to be heard. Several cases will be set for the same time period, so you may have to wait your turn.

The clerk will take roll to see who is present before the judge comes into the courtroom. You will be given an opportunity to meet with a mediator

who may help you reach an agreement with the tenant without having to wait for the judge. The judge will usually tell you what the court’s decision is at the end of the trial.

Sometimes the judge will want to think about your case or research the law before making a decision. In this case, the judge may take the case under submission. When a decision has been made, the court will send a written decision to all of the parties.

Post Trial Procedures After court trial, the court clerk will prepare a formal judgment and mail notices of entry of judgment to all parties. You must have a Writ of Possession issued by the clerk, and then you can have the Sheriff ’s Department do the lock-out. A sheriff will give the

22

tenant notice that they have five (5) days to vacate the premises. Even though you have a court order, you cannot evict the tenant yourself. If the tenant does not move out in the 5-day period, the Sheriff will remove the tenant from the property and change the locks.

Assistance There are a number of resources available in the community which may be able to assist you. Many are listed on the website. The court provides accommodations for persons with disabilities upon request. The court does not provide interpreters for Unlawful Detainer matters. If you need an interpreter to help you in court, you must bring one with you. A family member or friend may serve as your interpreter.

B r u ce M il l s .. .

“Here’s What Works” Avoiding discrimination Thirty years of helping landlords (home providers) to fill vacancy without discriminating can be challenging. At times we could say something that some people might interpret to mean something else. Last year one of my managers admonished a prospective tenant to control her children, who were playing around and being rough on the property. The woman went to Fair Housing and reported this to an investigator, saying that we did not want to rent to her because of her children. This was hardly the truth – she did not even apply!

To avoid discrimination, I suggest that you keep to the basics – rental history, income and credit – and use the same standards with everyone. When a prospective tenant calls, I ask them for their target date for moving, and if it fits our owner’s time frame, I explain the renter qualifications and the required application fee. If they are still interested, I make the appointment. The Rental Housing Association of Sacramento gives an excellent course on Fair Housing. I suggest you call them at 916-­9201120 for the next scheduled “Fair Housing, It’s the Law” course.

If you have any questions about the landlord/tenant business call me at (916) 548-7712 – or you can e-mail me at brucemills@mmproperties.com. Thank you.

Bruce Mills Broker/owner since 1980 DRE License #00546481

Our management fees: • Single family home ........................... $ 90 per month • Duplexes ........................................... $140 per month • Three units or more, priced by a case by case basis Leasing fee is 40% of the first month’s rent or $500, whichever is greater. We also have a program for just finding the tenant, which is 75% of the first month’s rent or $750, whichever is greater. We assign a Property Manager by the location of the rental, usually a few miles from where the manager lives.

We can also run credit reports for you for $35 per adult.

Usually the prospective renters pay for the report.

We have been in the property management business since 1980. The experience is priceless!

23

CAA Resources for Landlords

T

he California Apartment Association (CAA) is the nation’s largest statewide trade association for people who own or manage rental property. Since 1941, CAA has been dedicated to protecting its members’ investments through political and legal advocacy.

The CAA website (www.caanet.org) offers valuable forms and publications to assist landlords and property managers.

Checking References The landlord or property manager should use the following procedures to check an applicant’s references: • Check the identification of applicants by asking to see their driver’s license, a military identifica­tion card, a U.S. or foreign passport, or a Califor­nia identification card.

• Check with the management of the applicant’s current apartment and, more importantly, at previous residences.

Owners may ask only questions that pertain to the rental agreement.

• Check bank references to verify that the appli­cant has an

24

open account with the institution and request a rating of the account.

• Check with the applicant’s employer to verify length of employment, income, and other information if possible.

These forms are available at the CAA website: 2.9 - Notice of Conditional Acceptance 3.1 - Notice of Denial to Rent Form 3.2 - Notice of Denial to Rent (Agencies Listed) 3.7 - Rental Applicant Reference Form

Screening Applicants Most screening services offer report packages that provide data about eviction history, tenancy history, and retail credit information. Some services can also verify previous tenancies and employment. CAA has a publication that may assist owners in evaluating when and how to evaluate a tenant’s eviction history: “Questions and Answers Regarding Tenant Screening Litigation.” CAA offerss these forms online: 3.0 - Application to Rent 3.0 R - Application to Rent with Screening Fees Receipt 3.5 - Receipt for Tenant Screening/Credit Checking Fees 3.6 - Notice of Requested Reports and Certification to Consumer Reporting Agency

Adverse Action Notice If the owner rejects an applicant, or takes other “adverse” action (such as requiring a co-signer or requiring higher security deposit) based on negative information on a credit report, the owner or agent must inform the applicant of that fact.

The owner must furnish the applicant with the name, address, and telephone number of the credit reporting agency and must provide the applicant with a statement that the consumer reporting agency did not make the decision to take the adverse action and is unable to provide the applicant with the specific reasons why the adverse action was taken. The owner must also inform the applicant that he or she can obtain a free copy of the consumer report from the consumer-reporting agency within 60 days and that the applicant has the right to dispute the information contained in the report. These forms are available from CAA online: 2.9 - Notice of Conditional Acceptance 3.1 - Notice of Denial to Rent 3.2 - Notice of Denial to Rent (Agencies Listed) For more information on this subject, see the Federal Fair Credit Reporting Act, page 379; and Civil Code Section 1785.20, page 166. The California Apartment Association (CAA) offers more forma and information at http://www.caanet.org.

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Rental Housing Case Law: Occupancy Issues Continued from page 13

occupancy (and other housing) standards that differ from the Uniform Housing Code, if they are justified by local climatic, geological, or topographical conditions and if the munici­pality makes an express finding regarding that justification.

Briseno v. City of Santa Ana, (1992) 6 Cal.App.4th 1378, 8 Cal. Rptr.2d 486.

Related / UnrelatedPersons Santa Barbara’s zoning ordinance, which made a distinction between related and unrelated persons in setting occupancy limits for single family homes, violated the right to privacy in the State Constitu­ tion, which encompasses the right to choose with whom one lives. The ordinance had defined family as either: (1) an individual or two or more persons related by blood, marriage, or adoption living together as a single housekeeping unit in a dwelling unit, or (2) a group of not to exceed five persons, excluding servants.

City of Santa Barbara v. Adamson, (1980) 27 Cal.3d 123, 164 Cal.Rptr. 539.

Significant Business Need A mobile home park owner’s three person per unit occupancy limit was upheld despite its discrimina­tory effect on families with children because the park owner sufficiently demonstrated that due to sewer system limitations, the restriction was necessary to the operation of the business and effectively carried out a significant business need.

Mountain Side Mobile Estates v. Secretary of HUD, (10th Cir. 1995) 56 F.3d 1243.

Tenants/Owners A San Diego ordinance that regulated the number of persons over the age of 18 who may live in a non­-owner occupied residence in certain areas was held to violate the Equal Protection Clause of the California Constitution because it made an irrational distinc­tion between tenant-occupants and owner-occu­pants.

College Area Renters and Landlord Association v. City of San Diego, (1996) 43 Cal.App.4th 677, 50 Cal.Rptr.2d 515.

For detailed discussion of cases of interest to landlords, visit the California Apartment Association website at http://www.caanet.org.

26

“One learns in life to keep silent and draw one’s own confusions.”

Cornelia Otis Skinner

27

Presorted Standard U.S. Postage PAID Sacramento, CA Permit No. 1142

Don’t miss this valuable, FREE Nuts & Bolts Property Management Class 1401 El Camino Avenue, Suite 200 Instructor: Bruce Mills Offered the second Tuesday of the month, 5:00 p.m. See Schedule on Page 15.

Seating is limited. Please call 923-6183 (ext. 110) to reserve a spot.

Fire? Water damage? Now what?

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