Questions & Answers

When serving notices, our policy is to “post-and-mail” whenever possible to avoid confrontation. Now, my attorney is telling me that the law requires that I try personal service first before posting and mailing. Is she correct?

Yes. Under California Code of Civil Procedure section 1162, a 3-Day Notice may be served by the following methods: (1) A copy of the notice may be delivered to the tenant personally; (2) If the tenant is absent from his or her place of residence and usual place of business, a copy may be left with a person of suitable age and discretion at either place, and a copy mailed to the tenant at his or her place of residence; or (3) If the places of residence and business cannot be ascertained, or a person of suitable age or discretion cannot be found, a copy of the notice may be affixed in a conspicuous place on the property, a copy delivered to a resident (if one can be found), and a copy mailed to the tenant at the location of the property. Note that method (2) may be used only if method (1) was tried, but failed to reach the tenant. Method (3) may be used only if methods (1) and (2) were tried, but failed. In practice, this issue may appear at the unlawful detainer trial. A judge or opposing counsel, may ask if you were aware of tenant’s place of employment. If your answer is yes, and you did not attempt to serve the notice at the tenant’s place of employment, service of the notice will be found invalid, and you will lose your case. Thus, “postand-mail” should not be your standard policy for service of a 3-Day Notice when personal and substitute and mail service were not attempted.

I know that I do not need just cause to terminate a lease on certain properties, but I’m not sure which types of properties those are. Can you explain which properties are not covered by the just cause requirements of the Tenant Protection Act?

The Tenant Protection Act does not apply to residential real property that is alienable separate from the title to any other dwelling unit, i.e. single-family residences, townhomes and condominiums, provided both of the following apply: 1) The owner is not: (i) a real estate investment trust as defined by Section 856 of the Internal Revenue Code, (ii) a corporation, or (iii) a limited liability company in which a member is a corporation; and 2) The tenants have been provided written notice that the residential property is exempt using the methods and language included in the law Cal. Civ. Code 1946.2. Further, the TPA does not apply to Owner occupied duplexes and owner-occupied singlefamily residences with ADUs, Housing restricted by deed with respect to affordable housing for persons or families of very low, low, or moderate income as defined, Transient and Tourist hotels, School Dormitories, Housing accommodations in a nonprofit hospital, religious facility, extended care, elderly or adult residential facility as defined, Housing that has been issued a certificate of occupancy within the last 15 years. In addition, remember, the TPA only applies after a tenant has continuously and lawfully occupied a residential real property for 12 months. Therefore, even tenancies for non-exempt property types may be terminated without just cause prior to 12 months of occupancy.

My tenant and I have been on good terms for the last five years. The tenant has failed to pay this month’s rent. It is now the 20th of the month, and I haven’t seen my tenant, or the rent. It’s been a while since he showed his face around these parts. I’m pretty sure he left the premises, but he hasn’t returned the keys. Since I have not seen him and he owes me money, can I change the locks and re-rent the premises?

No. Under most circumstances, California law requires that a landlord can only retake possession of a property following the voluntary surrender by the resident, pursuant to a judgment for possession, and enforcement of that judgment can only be accomplished through the Sheriff, or by compliance with the Belief of Abandonment of Real Property procedural requirements. Initially, if a tenant surrenders keys to the premises, you may legally re-enter and change the locks. However, when a landlord has a reasonable belief that the tenant has vacated, and the tenant’s out- standing rent has been due and unpaid for at least 14 days, then the landlord may post a Notice of Belief of Abandonment of Real Property. Once the Notice of Abandonment of Real Property has been posted and mailed to the tenant, and 18 days have expired, the landlord may retake possession of the property without resorting to the courts.

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. C. Tyler Greer is an attorney and shareholder at 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 300,000 landlord tenant matters throughout California and has collected over $300,000,000 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.

Dear Maintenance Men:

I am trying to be on top of my preventive maintenance this year. It is spring, so what do you suggest I look at first? Mike

Dear Mike:

Summer is just around the corner, and it may be a hot one. Prior to summer, it is essential to properly inspect and troubleshoot your HVAC (A/C) units whether they are window, wall or central. Most A/C units fail or work improperly due to non-existent or improper maintenance, and not age.

Cleaning your A/C is the most inexpensive and critical maintenance procedure you can perform.

Here is our 4-point check list:

1. Turn on the A/C and listen for unusual noises.

2. Inspect/clean or replace filters. Filters should be cleaned or replaced at the beginning of each major season, such as before summer and before winter.

3. Clean and repair damaged or bent fins. They can constrict proper air flow and decrease the cooling capacity of the A/C unit.

4. Clean out all dust and debris inside of the A/C pan or coils.

On a central HVAC unit: cleaning or replacing the main and return filters may be the limit on a DIY cleaning. A qualified technician should do any other work on a central heating and air unit.

Dear Maintenance Men:

I have been replacing rusted and dented HVAC vents and electrical wall receptacles in a rental unit. However, they don’t look right. There are a lot of gaps between the vents and plates, and the wall. Some of the walls are not perfectly flat or the texture is bumpy. How do I make these installs more professional looking? Julien