Landlord Wants to Keep Left-behind Items as Compensation

Robert S. Griswold | Steven R. Kellman | Ted Smith
24-February-2002 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.

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 records.

Butt out

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.

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.

Back to 2002 Rental Roundtable Index

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