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Real Estate Today

Tenant can run day care from home

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Robert S. Griswold | Steven R. Kellman | Ted Smith
30-January-2000 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

Q: I rent a large, three-bedroom home and recently opened a small licensed family day care there. My landlord said that I must seek another option for employment because they will not allow me to have a day care in their home. The lease does not say anything about day care. Can they evict me or prevent me from earning a living at home?

A: Smith: Many California landlords are caught off guard by a little-known law that allows a licensed day-care home provider to operate a baby-sitting business in a residential rental property even though zoning and lease clauses prohibit commercial use.

There are strict requirements. The day-care provider must be licensed by
the Department of Social Services. "Casual" baby-sitting arrangements may be prohibited by the landlord. Further, no more than six children are
allowed for the small day-care home.

The provider must have one of the following: insurance, bond, or signed
waivers of liability by the parents. In addition, a higher security deposit
may be charged.

The day-care provider does not have additional or superior rights than your other residents, and cannot escape responsibility for the activities of the children. She, along with the other residents, is required to comply with all rules and regulations of the property pertaining to health and safety.

She must ensure that the children are kept under control to avoid
disturbances to other residents and neighbors. If the children annoy or
disturb other residents or neighbors, this may prove to be a ground for
eviction.

Kellman: Many California tenants are surprised when they are turned down for a rental because they want to run a licensed family day-care facility in the residence.

Others are surprised when they receive an eviction notice after they inform the landlord that they want to start such a facility in their existing
rental.

Tenants should be surprised by this because such actions of landlords are
illegal. Our legislature has declared that it is the policy of this state
to allow tenants to have family day-care homes.

A landlord may not refuse to rent to or evict a tenant because the tenant
wants to run such a home.

Your lease does not need to say anything about this facility since it is
your right to operate one whether the lease allows it or not. A residential
lease provision unconditionally prohibiting a family day-care use would be void anyway.

If your landlord attempts to evict you for operating such a home, a court
should rule that the eviction attempt is improper and allow you to stay.
Besides losing the eviction court case, the landlord could be held liable
to pay you damages for even attempting such an eviction.

Ambushed by brush

Q: My ex-wife recently had to spend the day clearing brush around the house she rents in a rural area. Local fire officials had left a note on the
property manager's door last week notifying him of the need to clear the
brush.

The property manager left copies of the notice on the doors of the four
rental houses on the property with instructions that it was the renter's
responsibility to clear the brush. My ex-wife keeps her yard in great shape
and the brush in question was strictly around the perimeters of the
property.

I told her I was pretty sure this sort of maintenance was the
owner's/property manager's responsibility. Whose responsibility was it to
clear that brush?

A: Griswold: The determination of who is responsible for the brush will be based on the understanding between the parties. Apparently, your ex-wife does maintain the yard and does a good job of it based on your observation.

The question then is while your ex-wife handles the yard, is she also
responsible for the brush?

First, if your ex-wife was told or agreed to cut down or eliminate the
brush on the perimeter of the grounds or the lease states that she is
responsible, then she is.

If the lease or rental agreement is silent about the brush, then it most
likely will fall onto the landlord or their property managers.

Ultimately, the fire officials will expect that the owner of the property
will be responsible.

Excessive increase

Q: I have been renting and caring for the house I live in for 21 years. I
met the owner once during that time and had only one property manager, who retired three months ago.

The new property manager informed me of the change in property management and gave me a letter confirming the change, where to send the rent, and said there would be "no change in status."

Thirty days later we were hit with a $200 rent increase and a request that
we sign a one-year lease. We think the rent increase is excessive
considering there are other houses on the block that rent for less.

I've been a good tenant and have taken care of the property as if I owned
it, even doing repairs at my own expense. I do not feel there have been
sufficient upgrades to the property over the years to warrant such a large
increase.

I have asked the management for the owner's address, but she refused,
stating the owners agreed to the rent increase. I'm sure I can reach a fair
increase with the owner or offer an option to buy/rent to own, but I only
have his name to go on. Can you help?

A: Griswold: The property management company is not required to give out this information. The law provides that as long as the owners give you a name of someone acting as their agent then they do not have to give you
their personal information either.

However, the owner's information is most likely available from the County Assessors Office, but be forewarned that occasionally owners will have their property tax bill sent to their management company or CPA directly.

As you probably already know -- the owners (or the management company on their behalf) have the legal right to raise your rent upon proper notice.
It sounds like you would just like to present your side and ask the owners
for consideration in light of your lengthy tenancy and improvements you
made.

Again, they do not have to legally make any accommodations for these facts. Possibly their position is that the $200 increase already takes these facts into account in spite of the other rental homes in the area.

Remember that rents on single family homes have risen dramatically over the last 18 months and in today's rental market a $200 increase is not that
unusual.


IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

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Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws.  As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or  intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply.  Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161

Email: rgriswold.ret@retodayradio.com

2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 1998, 1997, 1996 Robert S. Griswold.  All Rights Reserved.
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