Landlord Wants to Keep Left-behind
Items as Compensation
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: What is the law or is there a law on property left behind
after a rental agreement no longer exists? A renter has left some of
his property behind and he owes me unpaid rent. Could I legally sell
the items to pay for this unpaid rent? And is there some kind of
statute of limitations on unclaimed property?
ANSWER: Smith: California landlords are required to store
the tenant's personal property for a certain period of time following
eviction or abandonment. You must allow 15 days to claim the property
if the sheriff conducted an eviction lockout. If the tenant simply
moved without a lockout, you must first mail a special notice of right
to reclaim the personal property to the tenant's last known address
and allow the tenant 18 days to claim the property.
You are not required to store the personal property on the leased
premises, but you do have to store it in a safe place during this
period. If the property left behind is worth less than $300, you may
dispose of it after expiration of that period. However, if the value
exceeds $300, you must sell the property at public auction after
publishing the date of the sale in a newspaper.
If the tenant returns to claim the property, you must return it to
him, but you may charge reasonable storage fees. Once disposed of, or
sold at auction, the tenant has no further claim to the property. You
may not hold the personal belongings as ransom for rent even if you
have a judgment. In all cases, it's a good idea to take pictures of
the personal property and write down a complete inventory for your
I am a smoker living in a 12-unit building. The woman upstairs
complains that my cigarette smoke is coming into her unit and
exacerbating her asthma, so the landlord is talking about making the
building nonsmoking. I've lived here 10 years, but I'm on a month-
to-month lease. Can he do this?
Kellman: The very long tenancy you have (10 years) generally
will not give you any extra rights over a short tenancy. As to the
smoke, it is treated like any other intrusion into another person's
space like noise or vibration.
While smoking is a lawful activity, like playing a radio or
practicing on the drums, it may be restricted when that activity
substantially interferes with a neighboring tenant's use of their
unit. Cigarette smoke is known to adversely affect health and when a
neighboring tenant with asthma is impacted by that smoke, the landlord
may be liable if he fails to act.
Under fair housing laws, a landlord must make reasonable
accommodations for disabled tenants. This will probably include taking
action to limit or eliminate smoke where it can harm a nonsmoking
neighboring tenant. That may mean taking the kind of action
contemplated by your landlord.
A new rule of your month-to-month tenancy (i.e., no more smoking)
may be valid after a proper 30 day notice of that rule. Smoking is
increasingly being limited (businesses, government buildings,
airplanes, hotels, etc.). There seems to be no lawful barrier to
prohibit smoking in the home by restrictions from landlords.
On the one hand, such a rule should not be an illegal
discrimination since smokers are not a protected group such as race,
religion, national origin, etc. On the other hand, such a rule might
be considered an illegal discrimination since, if smoking is an
addiction, and therefore a disability, forcing one to quit in only 30
days may be detrimental to the smoker's health.
Smith: California landlords are required to balance the
rights of smokers against the adjacent tenant's rights to live in a
smoke-free environment. This dilemma places the landlord in a Catch 22
situation. It is clear to me that smoking causes increased wear and
tear to the rental property and increased expense to the landlord.
Further, if the evidence is that secondary smoke may cause cancer,
it is possible that a lawsuit could claim the landlord responsible for
failing to take steps to eliminate or evict the smoker. The court will
have to evaluate these issues to determine whether California's
apartment dwellers may be banned from smoking in the rental.
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 firstname.lastname@example.org
2002 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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