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Real Estate Today

The Landlord Can't Just Barge In, But He Does Have Rights

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29-Sep-1996 Sunday
(Page H-4 )

This column on issues confronting renters and landlords is written by property manager Robert S. Griswold, host of KSDO Radio's "Real Estate Management Today," and by attorneys Steven R. Kellman, director of the Tenants Legal Center, and Ted Smith, principal in a law firm representing rental owners.

Q: I am a very private person. Do I have the legal right to refuse my landlord's request to come inside my apartment to do an inspection?

A: Kellman: The law allows the landlord a reasonable right to enter the rented dwelling for certain purposes such as maintenance, repairs or showing the unit to potential buyers or lenders. Performing a general inspection is not one of the stated grounds for entering the unit, and thus does not seem permitted under the law. However, if the landlord does have a valid reason to enter, there must be reasonable notice given -- 24 hours at least -- prior to such an entry. The tenant may refuse the landlord's attempted entry if the day or time is not acceptable. It is very difficult for a tenant to hold a landlord responsible for failing to make repairs if he or she won't let the landlord enter the unit to make those repairs. Mutual cooperation and respect benefits both parties.

Q: I am 45 days behind on my rent payments. My landlord has spoken with me, but I have not been served any legal notices. If I get a court eviction filed against me, what should I do? Should I just move or defend myself even if it means going to court?

A: Griswold: You still have time to make alternative arrangements for the rent, like securing a cash advance from a credit card, your employer, family or friends. Talk to the owner first and try to agree to a reasonable, written payment plan. The landlord's first step toward eviction is to present you with a three-day Notice to Pay Rent or Quit. That is followed by an Unlawful Detainer, or eviction, action for nonpayment of rent. You still have time to act, but not much.

Smith: When it comes time for the landlord to evict a nonpaying tenant, an Unlawful Detainer lawsuit is filed, which is California's way to evict a tenant who refuses to vacate after proper legal notice. Tenants have the right to fight the case and have their day in court. But when they fight, they don't win. Studies have shown that 95 percent of tenants lose. Why do they bother? Simple. To delay the process as long as possible. Tenants who file answers without a legal leg to stand on are costing landlords millions of dollars a year in California. Legislation is needed to put an end to the eviction delay rip-off.

Kellman: It is true that most tenants lose eviction cases. But the reason is that they do not have an organized legal machine to assist them, as do landlords. In fact, many tenants who are served eviction notices are innocent and should not be evicted at all. If they do not properly defend themselves, they will fall into the group that loses its cases. And the statistics will say they were guilty, when in fact they could have been innocent.

Q: I recently decided to separate from my wife. I filled out a rental application and deposited money to hold an apartment with the resident manager. Luckily, we reconciled soon after and I won't need the apartment. Can I get my money back?

A: Griswold: This is a common problem which illustrates the need to have a written agreement from the very beginning of even a potential landlord-tenant relationship. Many professional management companies and owners use a "holding deposit" form that clearly outlines the rights and responsibilities of both parties prior to the tenant moving in. Absent such an agreement, you need to reach an understanding with the landlord. Of course, the landlord will be concerned with the loss of rent and any additional costs to re-rent the unit.

Kellman: It is very important to come to an agreement on the purpose and rights regarding any money paid before signing a rental agreement. There should be a specific agreement as to whether such money will be refunded if the tenant decides not to rent for any reason. Simply because we use the word "deposit" in referring to money given toward a rental does not mean that it is considered a refundable "security deposit" under California law. By giving money toward a rental, and then changing your mind, there may have been a contract of some kind created causing the loss of the money if the contract is broken. If you want the money refundable before moving in, get that in writing.

Q: I have moved into a new home and will be renting my former home. The rental home has been fully landscaped at great expense. One rental applicant would like a $100 rent credit per month to take care of the yard. Would this be legal?

A: Griswold: Yes. You can agree to any arrangement regarding the care and maintenance of the yard in exchange for a reduction in rent. However, be sure that your tenant has the proper skills, tools and time to satisfactorily maintain the yard. The tenant also must be properly motivated to maintain the yard properly and you should put your understanding in writing. Write the rental agreement at the full rental rate and then have a separate written addendum that gives the tenant $100 off the full rate in the following month for maintaining the yard in the prior month. This "payment in arrears" will give you more control and serve as a motivating factor for the tenant. You should also provide in the written addendum for the option of canceling the rent reduction addendum with or without cause while not voiding the tenant's other responsibilities under the rental agreement. This type of arrangement can work very well, but care must be taken to ensure that all parties understand their obligations.

Q: I rented an apartment with a roommate. We both signed the rental agreement, yet I put up the full security deposit myself. Last month we vacated the apartment and my roommate moved to the East Coast. I just received my security deposit refund by check payable to me and my roommate even though I asked the landlord to make the security deposit refund check payable just to me. They claim that they cannot legally do this. Is this right?

A: Griswold: Yes. When two or more individuals sign a rental agreement and then vacate the premises, the owner should make the security deposit refund check out to all individuals on the rental agreement as they all have an equal legal claim to the security deposit unless otherwise agreed in writing. Thus, your owner is just protecting himself from a potential claim by your former roommate. You need to contact your former roommate and either have him endorse the check over to you or send a letter to the owner indicating that he relinquishes any legal rights to the deposit and that the check should be reissued in your name.

Of course, you could have avoided this situation before you vacated the rental unit by having the owner prepare a written security deposit transfer form whereby your roommate legally transfers any interest in the deposit to you.

This works even if the roommate paid a portion of the original security deposit by simply settling the finances between yourselves in a mutually agreeable amount. An owner would be ill-advised to reimburse any or all of a security deposit when a roommate vacates the rental unit. He should always keep the full deposit on hand until the last person on the rental agreement actually vacates the unit. If you're a tenant or landlord, the authors stand ready to answer your questions. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 191, San Diego, CA, 92112.

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.
http://www.retodayradio.com