The Law Firm of Kurt N. Strauss & Associates protects the legal interests of the Southern California real estate community.

Landlord’s Law Center

Let’s face it, being a real estate investor, property manager, or landlord has its ups and downs. The good news is we can all experience more “ups” by knowing the law and engaging in sound management practices. Over the next few months, we will publish (right here) some fundamentals that everybody should be aware of. You will see the links come to life as we add new tips.

All my best, and much success in 2014. Kurt N. Strauss, Esq.

Tenant Evictions – Click to Read Below

The Standard Eviction Case

  1. Serve a legally sufficient notice and wait until it expires. (Caution: a three day notice can take longer than three days to legally expire)
  2. File the unlawful detainer lawsuit.
  3. Serve the tenant the unlawful detainer lawsuit.
  4. Now the clock starts ticking on your tenant’s time to respond:
    1. Tenant has five (5) days to file a response in Court if “personally” served (remember: the day served does not count against the five days to respond).
    2. Tenant has fifteen (15) days to file a response in Court if served by “substitution.”
    3. If service is totally evaded (tenant evades a. & b.) we must request an Order to Post from Court. After that gets issued, tenant has fifteen (15) days to answer after the unlawful detainer is posted on the property and mailed.
  5. If the tenant fails to respond after the allotted time, a default judgment is sent to the Court on the next court day, thereafter judgment is entered by the clerk.
    1. Once the clerk enters judgment, a writ of possession is issued and sent to the sheriff’s office. The sheriff’s office posts a lockout notice on the premises and lockout occurs, generally seven to ten days later.
  6. If the tenant chooses to file an answer, you have two options:
    1. Your first option is that we request a trial date and the court sets the trial for approximately twenty-one (21) days away. You must appear at trial and you should get possession seven to ten days after trial.
    2. The second option is a motion for summary judgment. This is essentially a trial by paper. You do not need to appear at the hearing. We set the motion at least five days after we file it in Court. Once judgment is entered in your favor, you should get possession in seven to ten days.
  7. If your tenant files for bankruptcy before judgment is entered there will be an eviction delay usually three to four weeks until the “automatic stay” is lifted by a Federal Bankruptcy Judge. If you tenant files Bankruptcy after the judgment is entered, the Sheriff’s lockout will not be delayed.

Finding great tenants

Finding great tenants isn’t easy, but it should be.  Here are 3 tips to follow.

  1. Know the law.  Become familiar with local, state, and federal laws.  That sounds like a daunting task, but it’s really not if you know where to look.  Many publications, such as NOLO, contain summaries of laws you need to be familiar with.  Enforcement agencies such as the HUD Office of Fair Housing and Equal Opportunity (FEHO) or the California Department of Fair Employment and Housing (DFEH) have valuable information on their websites for landlords.  Your attorney and local apartment owners associations are also powerful resources.  Various federal, state, and local antidiscrimination laws bar discrimination on a number of grounds including, race, religion, color, national origin, ancestry, sexual orientation, sex (including gender identity, appearance and behavior), marital status, familial status, source of income, age, disability, or medical condition.  Furthermore, laws prohibit not only discriminatory refusals to rent but also discriminatory rental terms and conditions, advertising, and statements regarding the availability of housing.  Understanding the law can help you avoid conduct or dialogue that may be construed as discriminatory.  
  2. Advertise creatively.  Paint pictures for tenants regarding your amenities.  For example, write “sparkling pool awaits” verses just listing “pool.”  Be careful not to make statements like, “trails nearby are perfect for runners.”  Implying a type of desired person, such as a “runner,” may be viewed as showing a preference for non-disabled tenants.  Instead, use a phrase like “outdoor enthusiast” which avoids describing a physical ability or quality.  This may seem nitpicky, but when a legal claim is raised, seemingly harmless statements are often put under a microscope to argue a discriminatory intent existed.
  3. Know where to look.  Some landlords rely heavily on Craigslist for finding tenants.  Although Craigslist is valuable, don’t forget to think outside the box.  Landlords have used social media sites like Facebook and Twitter to successfully fill vacancies.  Additionally, current tenants can be helpful at broadcasting your available inventory. Don’t forget about those signs as prospective tenants often drive neighborhoods they wish to move to.  Ask your prospects how they found you, so you can adjust your advertising efforts accordingly.     

 

Landlord violations

Being a residential landlord isn’t easy, but being in violation of the law can get painful.  To avoid “legal pain” it’s important we avoid violations in the first place or correct them quickly if they arise.

Here are few things you should know:

Warranty of habitability:  When prosecuting an unlawful detainer eviction based on a three day notice to pay rent, the warranty of habitability—when raised—is used as a complete defense.  Put another way, if you lose your tenant retains possession, you pay his/her legal fees and costs, and a court may order you to make repairs and reduce the rent.  Unlawful detainer actions based on 30/60/90 day notices are subject to reductions in damages due to habitability issues.  Habitability complaints may also be a basis for retaliatory eviction claims.

The essence of the warranty of habitability implies that in every lease or rental agreement to which it applies, the landlord is deemed to warrant that the property is, and will be, repaired and maintained in conditions that meets certain minimum standards of habitability.  Failure to meet those minimum standards results in a breach by the landlord of the warranty.

Violating building or housing codes should be avoided.  That’s because when a condition exists that constitutes a violation of a code standard materially affecting health and safety then the warranty of habitability has been breached.

The landlord has a nondelegable duty to maintain the land in a reasonable safe condition.  Some cases have held that landlords are responsible for breach of the implied warranty even when that landlord was not at fault in causing the defect or in failing to repair it.

A landlord may not defend a breach of warranty claim by asserting that he or she is entitled to a “reasonable time” within which to repair the defect that led to the claim.

There is a procedure to using the warranty as a defense to an eviction.  First the tenant notifies the landlord of the defect.  If the landlord fails to remedy the problems, the tenant may withhold rent until the defects are repaired, at which time the obligation to pay the agreed upon rent resumes.  If the landlord files an unlawful detainer based on nonpayment of rent, the tenant may allege facts constituting the breach of implied warranty in his or her answer, assuming the warranty was breached during the period of unpaid rent stated in the 3-day notice.

If your residential tenant wins at trial the court will: 1) Determine the reasonable rental value of the premises in its untenantable state. 2) Deny possession to the landlord and adjudge the tenant to be the prevailing party (conditioned on the tenant’s payment of the adjusted rent that has accrued to the date of trial). 3) Order that the monthly rent be limited to the reasonable rental value of the property until repairs are complete. 4) Award the tenant costs and attorney fees if provided by the parties’ contract or statute.

The facilities covered by warranty of habitability generally include all those residential properties covered by building and housing codes.  The warranty covers defects in the common areas of an apartment building, as well as inside the apartments.

Standard Characteristics Necessary for Habitation as Dwelling (a dwelling shall be deemed “untenantable” if it substantially lacks any of the following affirmative standards)

  1. Effective waterproofing and weather protection of roof and exterior walls, including unbroken windows and doors.
  2. Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained and in good working order.
  3. A water supply approved under applicable law that is under control of the tenant, capable of producing hot and cold running water, or a system that is under the control of the landlord that produces hot and cold running water, furnished to appropriate fixtures and connected to a sewage disposal system approved under applicable law.
  4. Heating facilities that conformed with applicable law at the time of instillation, maintained in good working order.
  5. Electrical lighting, with wiring and electrical equipment that conformed with applicable law at the time of installation, maintained in good working order.
  6. Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.
  7. An adequate number of appropriate receptacles for garbage and rubbish, in clean condition and good repair at the time of the commencement of the lease or rental agreement, with the landlord providing appropriate serviceable receptacles thereafter and being responsible for the clean condition and good repair of the receptacles under his or her control.
  8. Floors, stairways, and railings maintained in good working order. 

Although habitability is a big issue, there are other legal pitfalls that can trap unsuspecting landlords.  For example, rent control gives tenants additional protections during the eviction process.  Southern California landlords with residential apartment property in the cities of Santa Monica, Thousand Oaks, Westlake Village, West Hollywood, Los Angeles, Beverly Hills, Escondido, and San Diego should be especially aware.  Section 8 landlords also must use extreme caution as they are subject to additional regulations.  To discuss how your property is in compliance or execute an eviction, please call Kurt N. Strauss & Associates.