LANDLORDS LIABILITY:
The Responsibility of Compliance:
Contrary to what you may believe a Landlord is not a self
appointed King of the World. A landlord must obey each and every rule and
regulation just like the rest of us have to. The landlord must obtain licenses,
permits and file tons of documents with many different governmental agencies. If
the landlord doesn't comply, then they cannot legally conduct business.
This may mean that they cannot legally sue you or even legally collect rent.
For example, if a landlord doesn't register their units under rent control, they
cannot evict or collect the rent. Another example, is if the landlord uses a
fictitious business name such as "Lucky Apartments" instead of his own
name of Joe Smith. If the landlord is going to do business under the name of
Lucky Apartments and has the rental agreement in the name of Lucky Apartments
and has you make out the checks to Lucky Apartments, then they must keep their
DBA (Doing Business As) or Fictitious Business Statement current otherwise they cannot sue or defend a
suit until they do. This also applies to corporations, partnerships and limited
liability partnerships and corporations.
The landlord must file this Fictitious Business Statement with the County Clerk
and pay a fee every five (5) years, and publish notice of this in a newspaper of
general circulation or they are out of luck. So be sure to always see if the
landlord has complied and has a current filing with the County Clerk. If he
doesn't, you can temporarily keep them from suing you until they comply with Business and Professions Code Section
§17918.
 Additional
Compliance Requirements:
In the State of
California people who are engaged in the business of managing other people's
real estate must be licensed Real Estate Brokers. See Business and Professions
Code §10131. Many people flat do not comply. They will use "resident
managers" who are not a licensed Real Estate Broker to manage their units.
They may attempt to use a simple "power of attorney" form or
a contract which purports to allow someone to act as their agent. Under
the law neither should be permitted.
Others doing business as a corporation may attempt to have an officer appear in
court on behalf of the corporation. In California a corporation "Must"
be represented in Court by a licensed attorney. Many judicial officers
may confuse the
fact that it is alright for a Corporation may appear in "small claims" court without an
attorney, but a corporation may not appear for an Unlawful
Detainer Action, except by an attorney. It pays to do your homework and be
prepared. Remedy for
Non-compliance:
If the landlord fails to comply with these licensing
statutes, then any agreement signed by the person claiming to represent the
owner is unenforceable. Which can mean that a non-licensed person allegedly
managing the property and signed your rental agreement on behalf of the
owner, then you owe no rent and they can't enforce the agreement. Obviously the
real owner could come forward and sue you, but under this scenario, all they
could recover is possession. They would not be able to collect for back rent.
Liability of the Landlord for Crimes and Torts:
Let there be no mistake, even if they claim to be
uninsured, the landlord can still be sued in civil court and held
liable for crimes committed at the units. This can include crimes such as thefts
from cars and the units themselves, if it can be shown that the landlord was
negligent in repairing garage gates or other security devices. There are cases
holding landlords liable for personal injuries to the tenants and their guests.
Landlords often claim that they are not liable, but that is not true. In
fact the landlord is personally responsible to you for the conduct of their
resident manager, repairmen or any other employee that they use. The landlord is
responsible under the terms of the rental agreement and the law to provide a
rental unit that is habitable. This can also mean a unit that is safe and secure
and free of crime. Sometimes
landlords will claim that they are not responsible because they either don't
have liability insurance or their insurance doesn't cover for your
situation. It is not your problem if the landlord either doesn't have insurance
or their insurance doesn't cover your loss. They are still responsible.
Utilities
That are Shared:
This is an unusual problem that may come up in older units
that were converted to multi-unit complexes. Civil Code Section §1940.9(b)(2)
provides in pertinent part that a landlord must inform you if you are expected
to share part of a utility bill that is shared by another unit, such as a
laundry room, garage or another tenant's unit. They must also make arrangements
with you so that you do not have to pay for the entire service yourself. This
comes up sometimes with bills for water and trash. Although sometimes is comes
up in trailer parks with electrical service. If the landlord doesn't arrange
that you pay only your proportionate share of the bill, then you may sue the
landlord in small claims court for a reimbursement for any overcharge.
Foreclosure Problems:
Here is a problem that can sneak up on you. You are paying
your rent to the landlord, but guess what, he's not paying his mortgage. Even if
you are very careful you may still find your self being evicted by the landlords
mortgage holder. Through no fault of your own, I might add.
After the "Trustee's Sale" which concludes the
foreclosure, the new owner [which is sometimes the foreclosing bank] cannot
legally take possession without then going through the eviction process. As with
the other kinds of evictions, the process does take time, during which you can
sort out your options. The former owner is entitled to a 3-day notice, and any
tenant of the former owner is entitled to 30 or 60 days' notice, before the eviction
lawsuit can be filed. If you are such a tenant, but get only a 3-day
notice, you have a tactical advantage when you start fighting the eviction.
Also, there are remedies for any improprieties in real estate swindles, such as
reversing the title in "equity purchases", and raising the fraud as an
eviction defense. Your lawyer can explain the details of these approaches and
help you decide how best to handle the problem.
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