When is Landlord's Notice to Vacate Retaliatory
Robert S. Griswold | Steven R. Kellman | Ted Smith
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
and by attorneys Steven R. Kellman, director of the
Tenants' Legal Center, and Ted Smith, principal in a law
firm representing landlords.
QUESTION: I have never been late with my rent, yet on the day of
the due date my landlord is banging on my door at 9 a.m. to collect,
or she calls and asks me to put it in my mailbox and she will pick it
She has also on several occasions asked for the rent two weeks early.
I told her I was tired of her harassing me and that she needed to take
care of her own responsibilities and debts. I also told her my rent
was not late until midnight on the due date.
Then, I got a letter telling me not to park in a certain place, so I
moved my car. Two days later, I got a 30-day notice to vacate. Two
weeks later the phone company shut off my phone and put the service in
the name of another tenant. Is this considered retaliatory? Can I ask
the court to require her to pay my moving expenses?
ANSWER: Kellman: With few exceptions, California state law generally
allows a landlord to terminate a month-to-month tenancy on a written
30 days notice. The landlord is not required to give a reason for the
notice and may, unless otherwise prohibited by local ordinance, serve
one for any reason as long as it is not illegal.
One illegal reason for a 30-day notice is when it is retaliatory. This
occurs when a landlord responds to a protected and lawful action of a
tenant by punishing him/her with an eviction notice. The lawful action
may be a complaint about the condition of the property made to the
landlord or a government agency.
Another protected lawful action may simply be standing up for your
rights in a lawful and peaceful manner. You had the right to be free
from harassment and you had the right to let the landlord know it.
If the 30-day notice was a response to your request to stop the
harassment, it would probably be seen as illegal in an eviction court.
If so, it will be canceled and you may seek compensation from the
landlord plus a penalty of up to $1,000 for each retaliatory act.
As to the telephone, under California law, the landlord may not
terminate a utility with the intent of forcing you to move. If it was
the landlord who caused the phone service to be cut off, you may be
entitled to receive compensation, a penalty of $250 and up to $100 per
day thereafter that you remain there without phone service.
Smith: Steve, you miss the point. The reader has given no facts
whatsoever to suggest -- even remotely -- that the 30-day notice is
retaliatory. The fact is that California landlords may terminate
month-to-month tenancies for any reason -- even bad or unfair reasons
-- so long as it is not illegal to do so.
It's fair because it's a two-way street. Both tenant and landlord
share the right to terminate with a 30-day notice. In this case, the
30-day notice is valid and the resident will be required to vacate.
Moving expenses are not to be paid.
I agree that the landlord miscued by having the telephone service put
into another's name. The tenant is entitled to telephone service up to
the date of departure, so the owner should reinstate the services in
the tenant's name.
She said, she said
I am having a major problem with my neighbor ever since I called the
apartment manager about loud music after hours. She has called law
enforcement several times and has accused my husband of threatening to
kill her. The manager is aware of a few other problems we have had
with this neighbor in the five months we have been here.
We signed a one-year lease and the management has agreed to let us
move into a different apartment that is exactly the same as the one we
are in, but they want to increase our rent to the current market rate.
We can barely afford our rent now, but we are in fear of what might
happen if we stay next to this neighbor. Can they do that even though
we have a lease
agreement for seven more months? Help!
Griswold: Yes, if you accept their voluntary offer, I believe they can
require you to pay the higher rent for the other rental unit. Remember
that the management may not even have any legal duty to accommodate
your request at all, particularly since the management is most likely
hearing conflicting evidence from the other tenant.
If the apartment manager can clearly tell that you are not causing any
problems, then they should offer the other identical rental unit at
the same rate. However, with both sides making a lot of accusations,
there is a limit to what the apartment manager can do to control
everyone's behavior. That is not the role of an apartment manager and
management should refer this type of dispute to law enforcement.
If law enforcement can provide the apartment manager with a clear
interpretation of who is causing the problem, then the manager should
serve the appropriate cure-or-quit legal notice or move forward with
an eviction if the problem is not resolved quickly.
In the meantime, I believe you really have three choices: Stay where
you are and hope that things settle down; accept the transfer and pay
the higher rent; or break the lease and leave the property completely.
For the last option, you will need to make sure that the landlord
voluntarily agrees to let you out of your lease or you will be
responsible for the rent until the unit is rerented. Be sure that you
get an agreement in writing.
The first option saves money, but is risky. The second option costs
more but will hopefully solve the problem with your neighbor. The last
option should completely eliminate any problem with your neighbor but
the cost is unknown since you would be legally responsible for rent
for an undetermined time frame. My advice is to weigh the pros and
cons of each of these options and choose the one that is best for you.
In the doghouse
I rent a unit in a condominium that has a rule that pets over 25
pounds are not permitted. Two new owners have brought in huge dogs,
one a pit bull and the other a German shepherd. The homeowner's
association is overlooking the weight of the dogs because the dogs'
owners are owners, not renters.
Several people (owners and renters) are threatening to sue the
association for the stress of having to live with vicious (the German
shepherd has jumped on several people and the pit bull tried to attack
a small dog) dogs that are over the size limit.
Can the association be sued for discriminating against renters, making
them obey laws yet relaxing them for owners? Can both the owners of
these dogs and the association be sued if they attack a person or a
legal pet? Can the homeowner's association and the dog owners be sued
for the stress they're inflicting on the people in the building?
Also, there are rumors that the dog owners paid off the association,
is there any way to find out?
Kellman: The homeowner's association should enforce the rules for all
residents equally whether they are owners or renters. Treating people
differently may be an illegal discrimination if a person is treated
differently merely because he/she is a member of a particular
protected group of individuals.
All residents are entitled to the protections provided by the rules of
the condominium complex. A resident may bring an action for the
enforcement of the rules. A resident may also bring an action for any
damages caused by the association's failure to enforce a rule that
should have been enforced.
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 email@example.com
2001 Rental Roundtable
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.
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
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