NEW LAWS FOR 2002 and 2003:
New
Laws for 2003:
1. 60-Day Notice For
Long Term Tenants:
Effective
commencing January 1, 2003 and continuing on until January 1, 2006, a
landlord must provide a periodic tenant, such as a month-to-month tenant,
with an additional 30 days notice to terminate the tenancy if the tenant has
resided in the dwelling for one year or longer. This has the effect of extending
the notice requirement from 30 to 60 days on "long term tenants."
As of 2006, the governor has not signed a bill extending this provision. That
being said, I would check on the current status of this provision before sending
a 30 or 60 day notice.
It should
also be noted that this law has a "sundown" provision that allows the law to
expire on January 1, 2006 unless extended by the legislature. This is a
concession to the landlords so that they wouldn't raise too much fuss over this
issue.
However this law was made permanent as of January 1, 2005.
Like all laws,
there are exceptions to the 60-day notice requirement. For example, it
wouldn't apply if the parties have entered into what is called a
fixed-term lease, such as a one-year lease or rental agreement. The reason
for this is simple. The lease has its own termination date that was agreed upon
by the parties at the beginning. So be careful in interpreting these types of
leases on your own.
Obviously, a
30-day notice is still sufficient for tenants who have not lived in the property
for more than one year. In addition a Landlord may give a 30 day notice on sale
of the rental units, provided at least one of the following conditions are
satisfied:
1. The owner has
entered into a contract to sell the dwelling or unit to a bona fide purchaser
for value;
2. The buyer is a
natural person(s);
3. The buyer in
good faith intends to live in the property for at least one year after
termination of the tenancy;
4. The termination
notice is given within 120 days of opening escrow;
5. The owner has
established an escrow with a licensed escrow officer, or a licensed real estate
broker; and
6. The dwelling or
unit is alienable separate from the title to any other dwelling unit.
These requirements
are hyper-technical in nature and if you do not satisfy at least one of the 6
listed requirements, then you must give the tenant the longer notice of 60 days
and not 30.
2. Notice
Required for Landlord’s Entry Into Premises (California Civil Code section
1954):
Effective
immediately, a landlord must now give their tenants reasonable notice in
writing of the landlord’s intention to enter the tenants unit. The
requirement that the notice be in writing is new, so pay attention to this new
requirement.
In addition the
notice must also specify that the entry occur only during normal business
hours, unless the tenant consents to a different time. It appears to
be an open question as to whether or not the consent by the tenant must be in
writing or not. Common sense dictates that some sort of memorandum would be
better than nothing. Especially if you suspect the other party may try and use
the entry as a means to prosecute you for trespass in order to gain some sort of
perceived advantage. Be careful and if in doubt, get it in writing.
The requirements
of written notice before entry and that the entry occur only during
business-hours-only apply to non-emergency situations only. The landlord
still retains the right to enter the dwelling in the case of an emergency, or
when the tenant has abandoned or surrendered the premises.
The legislature has determined
that twenty-four hours notice is presumed to be reasonable in the absence
of any evidence to the contrary. This requirement pertains to
entries which do "NOT" have anything to do with a sale of the subject property. The written notice must be served in any one of the following
ways:
1. By personal
delivery to the tenant;
2. It may also be
left with someone of suitable age and discretion at the premises;
3. It may also be
left on, near, or under the usual entry door in a manner that a reasonable
person would discover the notice; or
4. It may also be
mailed to the tenant. A notice mailed at least six days before an intended entry
is presumed reasonable notice absent evidence to the contrary.
Given the scope of
this change, a landlord would be well advised to follow the new statute and only
serve the entry notice on the tenant by one of four methods prescribed above.
Another exception
to the written notice requirement is if a landlord is selling their
property. Then the landlord may orally give notice of entry in
person, or by telephone, if all of the following conditions are met:
1. The purpose of
entry is to show the dwelling unit to prospective or actual purchasers.
2. The landlord or
his or her agent has notified the tenant in writing within 120 days of the oral
notice that the property is for sale and that the landlord or agent may be
contacting the tenant orally to show to prospective or actual purchasers.
Twenty-four hour notice is presumed reasonable absent evidence to the contrary.
3. At the time of
entry, the landlord or agent leaves written evidence of the entry inside the
unit, such as his or her business card.
3. Tenant's Move-Out
Inspection Rights:
Effective January
1, 2003, tenants have the right to request an inspection of the premises before
they move out. This new law gives tenants a reasonable opportunity to correct
any identified deficiencies in the condition of the property, and thereby
minimize deductions, if any, from their security deposits.
The new procedures
for the move-out inspection are as follows:
1. Providing
Notice of Inspection Rights. Within a reasonable time after either the
landlord or tenant gives notice of their intention to terminate the tenancy, or before the end of a
fixed-lease term, the landlord "must" give the tenant written notice
that the tenant may request an initial inspection, and may be present at that
inspection. This new requirement is called "Option to Request an
Initial Inspection".
2.
Scheduling the Inspection. If the tenant requests an inspection, the
parties must try to schedule a mutually acceptable date and time. If the tenant
does not request an inspection, the landlord’s duties regarding the inspection
are discharged by giving the tenant notice of his right to one.
3. Providing
48-Hour Notice of Inspection.
For a tenant requesting an inspection, the
landlord must give at least 48 hours prior written notice of the date and time
of the inspection, whether the parties agreed to a mutual time, or could not
schedule a mutually acceptable time.
4.
Conducting the Inspection. The landlord or landlord’s agent must conduct
the inspection at a reasonable time no earlier than two weeks before the end of
the lease. The landlord must proceed with the inspection whether the tenant is
present or not, unless the tenant withdraws the request for inspection.
5. Preparing the Inspection Statement. Based on the inspection, the landlord must
prepare an itemized statement of repairs or cleaning that are proposed to be the
basis of any deductions from the security deposit. This statement "must include
the statutory language" in California Civil Code sections 1950.5(b) and (d) which
set forth, among other things, the items that may be properly deducted from the
security deposit, including the following:
a. Defaults in the payment of rent;
b. Repairing damages, other than ordinary wear and tear, caused by the tenant or
the tenant’s guest or licensee;
c. Cleaning costs (see section E below for New Cleanliness Standard); and
d. Future defaults by the tenant to restore, replace, or return personal
property as authorized by the rental agreement.
6.
Delivering the Inspection Statement.
The landlord must give the
inspection statement to the tenant if the tenant is present for the inspection,
or leave it inside the premises.
7. Providing
an Opportunity to Correct. The tenant must be given an opportunity to
avoid deductions from the security deposit by remedying any identified
deficiencies in a manner consistent with the rental agreement.
CAUTION TO
LANDLORDS: This new law does not change the landlord’s existing duty to
give the tenant, within three weeks after the tenant vacates the premises, an
itemized statement of the final disposition of the security deposit. The
landlord may use the security deposit for the following purposes: (a) Items set
forth in the inspection statement that the tenant failed to correct; (b) Items
arising between completion of the inspection and termination of the tenancy; and
(c) Items not identified during the inspection due to the presence of the
tenant’s possessions.
ADDITIONAL
CONSIDERATIONS: It is unclear from the statutory language whether a
landlord carrying out the move-out inspection procedures must also comply with
the separate right-of-entry requirements (see section 2 above). The move-out
inspection rules are primarily set forth in California Civil Code section
1950.5(f). However, the landlord’s right to enter the leased premises to conduct
this move-out inspection has also been incorporated into the right-of-entry
statute set forth in California Civil Code section 1954. Hence, a prudent
landlord should, for the time being, comply with both statutes until the courts
or the Legislature clarifies the following issues:
1. Waiver of 48-Hour Notice.
Section 1950.5(f) allows waiver of
the 48-hour notice of inspection if the waiver is in writing signed by both the
landlord and tenant. However, section 1954 independently requires the landlord
to provide written notice of the landlord’s intent to enter to conduct a
move-out inspection, and section 1954 does not explicitly allow waiver. Thus, to
be prudent, a landlord should provide written notice of an upcoming inspection,
and refrain from invoking the right to waive that notice requirement until the
courts or the Legislature clarifies this issue.
2. Normal Business Hours. In the event that the tenant wants a
move-out inspection but the parties cannot mutually agree to a date and time,
the landlord must unilaterally set a date and time for the inspection, and
notify the tenant accordingly. A landlord should err, if necessary, on the side
of caution by making sure that any unilaterally scheduled date and time are
during "normal business hours" as required by section 1954. There is no
statutory definition for "normal business hours," but some practitioners
interpret it as excluding evenings and weekends.
3. Methods of Service. Section 1950.5(f) does not provide any
specific methods of serving the required notices. However, because section
1950.5(f) has been incorporated into section 1954, a prudent landlord should
deliver the inspection notices in one of the following ways:
a. Personal delivery to the tenant;
b. Left with someone of suitable age and discretion at the premises;
c. Left on, near, or under the usual entry door in a manner that a reasonable
person would discover the notice; or
d. Mailed to the tenant. A notice mailed at least six days before an intended
entry is presumed reasonable notice absent evidence to the contrary.
4. New
Definition for Security Deposit Amending (California Civil Code section
1950.5(a)):
Effective January
1, 2003, there is a new definition for a "security deposit." A
"security deposit" used
to be defined as any payment, fee, deposit or charge, including those imposed as
an advance payment of rent. Under the new law, a security deposit also includes
"any charges" imposed at the beginning of the tenancy to reimburse the landlord
for costs associated with processing a new tenant, other than application
screening fees (discussed below).
This new
definition is significant because a residential landlord may only collect a
security deposit equal to two months of rent for unfurnished units, and three
months of rent for furnished units. For example, for an unfurnished residential
property at $800 per month under a month-to-month agreement, the maximum amount
that the landlord can collect up front is $2,400, or $800 rent for the first
month, plus $1,600 as a security deposit. If the landlord charges a $20 general
processing fee, effective January 1, 2003, that $20 is considered as part of the
$1,600 security deposit.
A landlord cannot
try to collect more than the allowable security deposit by labeling the funds as
for something else, such as a move-in fee, pet fee, cleaning fee, or last
month’s rent. There are, however, five exceptions to the rules limiting the
amount of a security deposit:
1. Application screening fees for actual, out-of-pocket costs for obtaining
information about a rental application, such as credit reports and reference
checks. However, the screening fee cannot exceed $30 per applicant, plus annual
CPI-adjustments after January 1, 1998.
2. Advance payments of not less than six months of rent for residential leases
with a term of six months or more.
3. Separate fee agreements between the landlord and tenant for structural,
decorative, furnishing, or other similar alterations, but not for cleaning or
repairs.
4. For waterbeds, an additional one-half of one month’s rent as a security
deposit, plus a reasonable administrative fee.
5. These security deposit limitations do not apply to commercial properties.
5. New
Cleanliness Standard amending California Civil Code section 1950.5(b)(3):
For all tenancies
beginning after January 1, 2003, a landlord incurring costs to clean the
premises after a tenant moves out, may only deduct from the security deposit the
cleaning cost "necessary to return the unit to the same level of cleanliness it
was in at inception of the tenancy." For tenancies that began January 1, 2003 or
earlier, the cleaning standard is more generally stated; that is, the landlord
can deduct from the security deposit "the cleaning of the premises upon
termination of the tenancy."
6. Bad Faith Claims
of Security Deposits amending California Civil Code section 1950.5(l):
Under the previous
law, a landlord who acted in bad faith in claiming or retaining a security
deposit was subject to statutory damages up to $600, plus actual damages.
Effective January 1, 2003, this statutory penalty will be changed from $600 to
twice the amount of the security deposit, plus actual damages. A court may
impose a statutory penalty against the landlord, even if the injured party does
not specifically request such relief. The landlord bears the burden of proving
the reasonableness of the amount of security deposit claimed.
7. New Laws That Benefit Tenants:
Hardship Motions
Under existing California Law, a
tenant who has had their lease declare forfeit and been ordered
evicted by a Court of competent jurisdiction, was allowed to file a motion after
judgment was entered against them. The Motion is a request to be relieved from
forfeiture based on the concept of hardship. Due to the complexity and formality
required under the prior statute, this procedure was rarely used by tenants.
The Petition was required to be made
in writing. It further required that the tenant fully perform the breach upon
which the eviction was based. For example, if the tenant was two months behind
in their rent, they had to bring it current. If the had a dog, or had violated
some other provision of their rental agreement, then they had to immediately
remedy the breach. Most Courts held that this relief was not available to month
to month tenants. The usual reason given was that they had "No Lease"
to be restored to them.
This was a big problem for rent
control tenants who had a month to month tenancy and no formal lease.
If the tenant was in default and still wanted to keep their unit, they were out
of luck. Not any more.
Effective January 1, 2003 the new law
gives the Judge discretion to grant a "Hardship" Motion, even if it is the Judge
who makes the motion. The Judge hearing the case has a right, on his own
motion, to grant a hardship request. It also allows the Tenant to make the
Motion orally, but only if they are not represented by a lawyer. The motion can
be made at any hearing if the Plaintiff has been given notice of the Tenant's
intention to make the motion. The tenant can also make the Motion based upon
a Notice for an "Ex-parte Application" alone. The law also allows the Courts to
grant relief "Whether or not the tenancy has terminated" It
also applies to oral tenancy or rental agreements.
8. Changes to Rent Control Laws for 2003:
The new law are basically aimed at
preventing landlords from removing units from the housing market. It also
authorizes those cities that have rent control to be able to enforce severe and
Draconian penalties against landlords who serve Eviction Notices for the
purposes of removing them from the market and then later on returning them to
the rental housing market.
The new law requires that any unit
that was removed from the rental housing market by Eviction Notices, must be
returned to the rental housing market at the same level that was in effect when
the notice of eviction was given. This applies for a five year period. It also
allows for any legitimate increases that would have been permitted under the
local rent control statute.
Under the new law, the five year
period is ascertained by using the following criteria. In particular, it
provides that the restriction apply for which ever of the following time periods
is longer:
(1) Five
years after the Eviction Notice is served, a subsequent rescission of the
Eviction Notice doesn't save you either;
(2) Five
years after the units were withdrawn pursuant to the Eviction Notices.
The next provision will really upset
most landlords: If the units in question that were withdrawn are once again
offered for rental within two years of the date the units were withdrawn,
then the landlord is liable to the former tenants for actual and punitive
damages. Independent of that provision, the City has its own cause of
action against the landlord for withdrawing the unit. The City may sue for
exemplary damages for the displacements of the tenants.
In addition to all of
the above, the evicted tenants also have the right of First Refusal,
provided the Tenant advised the Landlord in writing within 30 days of their
eviction. The local ordinance may provide that the "Right of First
Refusal" shall be in effect for up to ten years from the date of the
unit is withdrawn from the rental housing market according to the original
eviction notice. It also provides for punitive damages if the Landlord refuses
to comply.
If a landlord withdraws their units
from the residential rental housing market, demolishes the old units and builds
new units, the new units are subject to rental restrictions for five years
after the date the original units were withdrawn, based entirely on the
so-called standards of "Fair and Reasonable Return". While
there are exceptions to this rule, it is obvious to me that these types of laws,
while well meaning, will cause many landlords to withdraw their units and either
convert them to condos, or something else.
This new law only applies to new
tenancies created after December 31, 2002. An exception is also made if a lawful
tenancy was made before that date, and if the tenancy was the result of the unit
having been lawfully withdrawn from the Residential Rental Housing Market. A
final consideration to remember is that these rules only apply where the cities
have enacted a Rental Control Board.
New
Laws for 2002:
Laws for 2002: Real Notice
Effective January 2002, the
California Legislature enacted a new law to protect Tenants from unscrupulous
landlord who would make it impossible for Tenants to comply with a 3 day notice
to pay rent or quit. The scam works like this, the tenant is served with a 3 day
notice to pay rent or quit. The notice would not give the tenant the name and
address of the landlord or his agent. When the 3 day period expired, the
landlord would file an unlawful detainer and evict the tenant for non-payment of
rent.
Civil Code Section §1962 outlaw
this practice. Landlords are now required to give tenants a copy of the signed
rental agreement within 15 days of you and the landlord signing the agreement.
It also provides that once a year you may make a request of the landlord for a
copy within 15 days of your request.
Laws for 2002: New Owners
If the building is sold, the new
owners must give you a new copy within 15 days of becoming the new owner and
landlord. In addition the rental agreement must now contain the following
information, unless it is already posted in a conspicuous place in the
common area of the building:
The notice must also provide
information as to:
(1) If the agent to whom you
must pay the rent is an actual person, then they must provide that person's
name, address, telephone number and a list of the days and hours they are
available to receive the rent;
(2) If the agent to whom you
must pay the rent is a bank, then the bank must be within 5 miles of your unit.
In addition the notice must provide the name and address of the bank and the
account number to which the deposit is to be made;
(3) If the agent to whom you must
pay the rent requires an electronic deposit, then they must provide the routing
numbers and any other information that the entity will need to process the
transaction.
Laws for 2002:
Notice Under Rent Control
As of 2002, if you live in a rent
controlled unit in the City if Los Angeles, Santa Monica or West Hollywood and
you are evicted from a house or condominium so that the buyer may occupy the
unit, they must now give you 60 days notice instead of the 30 day notice
previously required. Civil Code Section §1946.1
Laws for 2002: Real Notice Blacklisting
Many tenants are
not aware that there is a registry called a UD Registry which is suppose to list
tenants who have been had Unlawful Detainers filed against them or have been
actually evicted. Tenant groups refer to this as a blacklisting service because
the information that they have collected isn't always been completely accurate.
Under new Civil Code Section § 1785 through §1786, if the UD Registry doesn't
accurately report the information, they can be slapped with
"Mandatory" Penalties of between $10,000.00 and $25,000.00, plus fees
and costs. This service is similar to credit reporting services, which means
that errors can creep into the system. Your best defense, is to periodically
check the service for accuracy of information about yourself.
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