The Law Offices of Ned T. Ashby and Landlord Services are committed to providing our clients with the best attorney eviction (and information) service possible. To that end, we have produced our annual “New Laws for California Landlords” section here.
CALIFORNIA LAW UPDATE 2008
“Uneventful” is an apt word to characterize the year 2008 in landlord-tenant law. The changes that did occur were really small tweaks. The largest change was the inclusion of domestic violence as a ground to terminate a fixed term lease. We caution our readers that the following are thumbnails and not a substitute for reading of the statute or authority involved.
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In June of 2008 the Second District Court of Appeal handed down a decision, Stone v. Center Trust Retail Properties, Inc., that may have expanded premises liability for landlords in the process of evicting their tenants. In this case, a commercial tenant, a restaurant, was being evicted from a shopping mall. A default had been taken and a Clerk’s Judgment for Possession entered, but a writ of possession had not been issued and served when the plaintiff injured herself by slipping and falling on a temporary dance floor that had been dampened by a leak at a party she was hosting. The use of the restaurant as a dance club was a breach of the lease and also illegal in the absence of permits. The landlord knew this sort of activity was going on.
The court of appeal ruled the trial court’s failure to give an appropriate instruction on the issue of the landlord’s negligence was error and remanded for further proceedings.
A reading of the decision and the dissent shows that this was judicial activism at its most rampant, but the case is probably not as incendiary as some commentators have characterized it. The keys to the decision seem to be:
- The property was designed for commercial use and open to the general public.
- The landlord had actual knowledge that the tenant was habitually using the property for an illegal purpose, a dance club, from which it could be inferred that the tenant was not fastidious in discharging its obligations as a proprietor.
- Being within days of physical eviction, the proprietor’s tendency to be lax would be magnified.
- The lease conferred on the landlord a right to enter and inspect the premises at any time during normal business hours.
The court of appeal concluded that given all the circumstances the right to enter became a duty, although nothing was said about what the landlord could do to control the tenant if potentially dangerous conditions became apparent.
It is doubtful to us that this decision would have been the same if the premises were a residence and not open to the general public, or if the landlord had no reason to suspect the presence of potentially dangerous conditions on the premises. Nor are the rights of entry for commercial landlords the same as the rights to enter of a residential landlord. Nevertheless, it would be wise not to ignore the property during the eviction process. If potentially dangerous conditions are suspected, the cautious landlord will want to make a record through an attempt at entry and reporting of known dangerous conditions to appropriate authorities and taking corrective action if it can be accomplished without a breach of the peace.
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The California Legislature enacted Code of Civil Procedure Section 1161b affecting evictions of tenants of a foreclosed landlord by the purchaser at a foreclosure sale. Whereas prior law required 30 days notice to vacate, the new law requires 60 days notice. This new requirement does not apply if any party to the note remains as a tenant, subtenant, or other occupant.
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The Legislature has eased the burden of a commercial landlord attempting to dispose of abandoned personal property of a commercial tenant. Whereas prior law permitted the landlord to dispose of personal property as he wished if it were of a value of not more than $300, the amendment now raises that limit to $750. Residential landlords are not affected and the limit remains $300.
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The Legislature has addressed the issue of domestic violence in the context of landlord-tenant relations. New section 1946.7 of the Civil Code now enables a tenant who is the victim of domestic violence, sexual assault, or stalking to terminate a fixed term lease on 30 days written notice, or less if the rental payment periods are less, e.g., installments are required every two weeks, every week, etc. The notice of termination must be accompanied by a copy of a restraining order or emergency protective order and the report of a law enforcement officer alleging domestic violence, sexual assault, or stalking. The notice must be given not more than 60 days after entry of the restraining or emergency protective order.
The tenant remains liable for rent for a period of 30 days after the notice of termination, or a lesser amount if the rental periods were less. The tenant has no liability for any sort of penalty for early termination. The rent is prorated if the premises are relet before the tenant’s statutory liability for rent expires. The security deposit is dealt with as in all other cases.
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AB1892 has ushered in the “Solar Energy Superhighway,” mirroring the regulations enacted by the FCC of a decade or so ago with regard to satellite dishes and the “Information Superhighway.” Common Interest Developments may no longer prevent occupants of CIDs from installing solar energy devices within the units occupied by them.
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The legislature enacted Civil Code Section 2923.6, the purpose of which was to shield mortgage loan servicers from suits by members of a mortgage loan pool if they extend a workout agreement to a party who is actually in payment default and the workout would net more value than a foreclosure. Just what the impact of this law is going to be is hard to assess, but it is possible that it will make negotiation for concessions by mortgagors a bit easier.
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A person or entity acquiring a residential property through foreclosure must maintain the property if it is vacant, under new Civil Code Section 2929.3. Failure to maintain may result in the assessment of fines by the relevant local governmental agency of up to $1000 per day. In the words of the statute “’failure to maintain’ means failure to care for the exterior of the property, including, but not limited to, permitting excessive foliage growth that diminishes the value of surrounding properties, failing to take action to prevent trespassers or squatters from remaining on the property, or failing to take action to prevent mosquito larvae from growing in standing water or other conditions that create a public nuisance.”
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Our Solons in Sacramento have now given us a new masterpiece of wise legislation. It is Civil Code Section 1940.3, effective January 1, 2008, and it reads:
Prohibited acts based on immigration or citizenship status
(a) No city, county, or city and county shall, by statute, ordinance, or regulation, or by administrative action implementing any statute, ordinance, or regulation, compel a landlord or any agent of the landlord to make any inquiry, compile, disclose, report, or provide any information, prohibit offering or continuing to offer, accommodations in the property for rent or lease, or otherwise take any action regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property.
(b) No landlord or any agent of the landlord shall do any of the following:
(1) Make any inquiry regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property.
(2) Require that any tenant, prospective tenant, occupant, or prospective occupant of the rental property make any statement, representation, or certification concerning his or her immigration or citizenship status.
(c) Nothing in this section shall prohibit a landlord from either:
(1) Complying with any legal obligation under federal law.
(2) Requesting information or documentation necessary to determine or verify the financial qualifications of a prospective tenant, or to determine or verify the identity of a prospective tenant or prospective occupant.
California landlords should note well that this statute does not prohibit a landlord from making inquiry about immigration or citizenship status just of the prospective tenant. It prohibits the landlord from making any such inquiry, read investigation, of anyone at all.
We take it for granted that a landlord does not want to be a satellite office of ICE. Well and good. But while being in this country illegally is not itself a crime, and “punishable” only by deportation, harboring an illegal alien is a Federal felony. There is no uniformity in the Federal Courts’ understanding of just what harboring is. Some require a specific intent to conceal or aid the alien. Some do not even require knowledge that the person they are harboring is here illegally.
At this point, state and local authorities, many for their own venal purposes, refuse to address the question of illegal immigration in a coordinated and effective way. The legislature is sending a strong message that they do not want you, a landlord, to try to help them out informally. Fine, but until the problem is addressed, there are two things we think you ought to do.
First, thoroughly screen all applicants as we have recommended elsewhere on this site. This includes a credit check and a public records and background check. Demand ID. Follow up on all references. Compare the information you get on the rental application with the information you get on the credit and public records checks. If you find they do not check out, then reject the applicant. If they check out, rent to them and forget about it. But if an illegal alien should survive a check, you may well eventually find that some portion of his paperwork was false. This is a state felony and you may wish to consider reporting it to the police. We cannot now recommend reporting to ICE, as their policy is to prosecute harborers, and they may come after you. Besides, while almost all illegal aliens have fake papers, not all persons with fake papers are illegal aliens. At minimum, you should have a provision in your lease or rental agreement that any willful misstatement on the application is a total breach of the contract.
Second, get out and vote for sane politicians who are willing to rationalize our laws on illegal entry to the United States.
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New Civil Code Section 3485 in effect expands the definition of nuisance under CCP Section 1161 to include the use of rental premises to store illegal firearms and ammunition. The City Attorney can compel the landlord to evict or perform the eviction himself and collect expenses including attorney fees of up to $600 from the landlord.
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Amendments to the federal Fair Credit Reporting Act have imposed a few new responsibilities on landlords who use credit reports in screening prospective tenants and in tracing tenants who owe back rent. Read this for some details.
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New regulations from EPA require that paid contractors who do renovation on properties built before 1978 must circulate a new pamphlet on lead paint hazards. This is in addition to the pamphlet the landlord must give the tenant when renting the property. Find the EPA’s article here.
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HUD and the DOJ issued a joint statement of their interpretation of the accommodations landlords must make for disabled tenants. You can find this publication here. |
