Legal Corner

Questions & Answers

By C. tyler greer, esq. the duringer law grouP, PlC

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, “post-and-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 have a tenant who did not pay rent and I filed an unlawful detainer case. When I received the tenant’s answer to the unlawful detainer complaint, the tenant claimed the property was not habitable. What does the term “habitable” mean? Residential rental units must be “habitable.” In legal terms, “habitable” means the rental unit is fit for persons to live in and that it substantially complies with state and local building and health codes that materially affect a tenant’s health and safety. The law makes both housing providers and tenants responsible for certain repairs, but you are ultimately responsible to ensure the unit is habitable. You are not responsible under the “implied warranty of habitability” for repairing damage caused by the tenant, his guests or his pets. You are responsible to take care of the habitability items, but your rental agreement can determine who takes care of the minor repairs. California law lists several items that are required to maintain a habitable unit, these are effective water proofing and weather protection, including unbroken windows and doors; plumbing in good working order, including hot and cold running water connected to a sewage disposal system; gas facilities, heating, and electrical in good working order; clean and sanitary buildings and grounds; adequate trash receptacles; floors, stairways and railings in good repair. Additionally, each rental unit must have a working toilet, washbasin and a bathtub or shower, operable dead bolts on the main entry doors, window locks, and smoke detectors. A housing provider is also responsible for the installation and maintenance of the inside wiring for one telephone jack. Tenants must take reasonable care of the rental unit and the common areas.

Tenants are responsible for repair of all damage resulting from their neglect, abuse, or acts by their family, guests or pets. Tenants must do all of the following: keep the premises “clean and sanitary,” use and operate gas, electrical and plumbing fixtures properly; dispose of trash and garbage properly, not destroy, damage or deface the property, not remove any part of the structure, dwelling, facilities or equipment, must use the premises as a place to live, and use the rooms for their intended purpose, and notify the housing provider when dead bolts and window locks don’t operate properly.

My new tenants just moved in a month and a half ago. The lease requires that the tenant pays for all utilities, and must put the utilities in their own name prior to moving in. Well, I just received the electric bill, and it’s still in my name. I’m thinking about not paying it, just letting it get shut off. Maybe when the lights go out, they’ll take care of it. Can I do that?

No, you can’t let the utilities be shut off. Your tenant’s actions are a breach of the rental agreement, and must be addressed in compliance with California law. You should immediately prepare and serve a Notice to Perform or Quit—Breach of Covenant notice. The notice should identify the specific breaches, the failure to place the electric utility in their own name, and their failure to pay the utility charges incurred since taking possession. The notice should be specific as to how they must cure the breach, namely, they must put the utilities in their name, and reimburse you for the amount of utility changes that have been billed and incurred post tenancy. Note that some jurisdictions may require that you include a statement identifying a witness who observed the breach, as well as the date and time of the breach. In such jurisdiction, you or your manager would suffice as the witness, and the breach would be considered ‘ongoing’ as it continues to occur. In the event of non-compliance, you would be entitled to file an unlawful detain action to recover possession of the premises. Rarely though is that necessary, as the vast majority of residents will immediately comply.

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 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.