Legal Corner

Questions & Answers

By stePhen C. duringer, esq.

With all of the new laws, can a housing provider evict for At Fault or No Fault Just Cause?

Between now and July 1, 2021, all residential properties, with some very limited exceptions, are subject to the Just Cause requirements of AB 1482. That means even single-family residences, which were previously exempt, are now temporarily covered and require Just Cause prior to termination of the tenancy. Termination for At Fault Just Cause (i.e., rent default, breach of a material term, nuisance, waste, refusal to renew a fixed term lease, refusal to allow entry, or failure to vacate after tenant provided notice), are all grounds that are still allowed. Termination for No Fault Just Cause (i.e., withdrawal of the rental property from the rental market, intent to occupy by the owner, spouse, parent, grandparent, child, or grandchild), is permitted, but make sure the termination is not because the resident is not paying rent. Termination because the Lessor desires to substantially remodel or repair the Premises must now relate to maintaining the habitability of the Premises rather than simply performing a renovation. Fixed term lease expiration, notices of nonrenewal, and 30- or 60-day notices that previously did not require just cause, are no longer grounds for termination and will not support the filing of a new eviction. Note that for terminations to allow occupancy of a qualified family member, if the lease was entered into on or after July 1, 2020, specific language must be included in the lease. Also note, if the Premises are exempt pursuant to AB 1482, then you must serve the requisite notice of exemption prior to termination of the tenancy.

I expect a vacancy to be coming up at the end of the month. I started advertising the unit and I put a sign in the window. Luckily, I’ve already received quite a few applicants. There are a few that sort of qualify, and I guess I could rent to one if I had to, but I’d like to continue with the ad and get a few more prospects to choose from. The thing is, this one applicant is getting pushy. She calls me several times a day, says that she knows she is qualified, that I have to rent to her because the unit is still available, and she was the first to apply. Truth is, she probably does qualify, but I’m just not sure. I haven’t actually denied her, nor have I accepted her, I just need more time. Do I have to rent to her because she was first to qualify?

No, there is no requirement to rent to the first person to meet your criteria. You are free to continue and accept additional applications from other candidates. From the pool of applicants, you may select the best and most qualified applicant, without regard to timing of receipt of the application. Often an owner will have a single vacancy and have many qualified applicants to choose from. A thoughtful review of all applicants and their qualifications will allow you to select the most qualified tenant. Don’t let the pushy prospect bully you into making a premature decision.

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?

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 prescreening 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.

I can’t seem to keep my apartments maintained. Lately, it seems like they are falling apart. I do the best I can, I fix most stuff myself, and contract out some, but it seems like some of my tenants are sabotaging the apartments. I’ve replaced the smoke detectors in one of my rentals three times in the last year. I know something is up, what do I do?

It’s more important now than ever before that you establish and follow an operations and maintenance plan when managing and maintaining your rentals. Not only is it just good business sense to maintain your rentals properly, but also the law mandates your prompt response to complaints of serious habitability defects. It is critical to identify tenants who engage in damaging and destructive conduct. Although the code specifically precludes a tenant from benefiting due to his inflicting damage to the apartment, often it is difficult to prove the tenant caused the habitability defect. A good practice to enact is to create a maintenance log of repairs to each unit. Many owners will require a tenant “sign off” when the repair is completed, other owners photograph the repaired item upon completion as proof of completion. These practices will support your claim that the “selfdestructing” smoke alarm is being damaged by the tenant. Several pieces of legislation have been enacted to crack down on the small minority of landlords who fail to properly maintain their buildings. Depending upon the severity of the defect, and providing that it is not tenant caused, a landlord may be cited by one of several governing agencies and given a period of time, ten to thirty-five days to make the repairs. If the repair is not completed as required, there are provisions that would allow the governing agency to make the repair and add the fees and costs of correction as a lien against the property. Additionally, legislation eliminates the tax benefits to the owner during the period of non-compliance, and in extreme circumstances, precludes an offending owner from demanding or accepting rent. Now more than ever before, it is critical that you document your repairs and identify the residents who are engaged in sabotage or other destructive conduct.

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. 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 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.

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