Questions and Answers
| Trouble erupts when guests move in - Proving the existence of illegal occupants can be difficult | ||
| ▲San Diego attorney James Mc Kinley is principal in a law firm representing landlords. He can be reached at rgriswold.inman@retodayradio.com. Sacramento Bee Saturday December 29, 2007 | ||
| Question: | We believe that illegal occupants are living in an apartment that we own and manage. These occupants are not on the lease, and we believe they are members of the tenant's family or friends. | |
| When we have asked about these people, we have been told that they are only visitors. | ||
| But other tenants in the building report seeing them at all hours and that they are quiet disruptive to their neighbors. | ||
| Our utility costs are out of control, particularly the water, which we, unfortunately, pay. | ||
| What can we do as landlords to prove and stop illegal occupations! | ||
| Landlord attorney James McKinley replies: Most rental agreements provide that the premises are to be occupied by the tenants named on the lease, and no one else, and that there is no right to sublet the premises. | ||
| When tenants named on the lease move their extended family into the unit, a landlord has the right to serve a three-day notice to perform covenant or quit. | ||
| This notice would specify the paragraph number of the lease that limits the occupancy of the unit to the tenants and must state how the agreements is being breached. | ||
| If the tenants don't comply with the notice by either removing the occupants not listed in the agreement or completely vacating the unit, the land lord could terminate the tenancy by filing an unlawful detainer action. | ||
| As you alluded to in your question, however, proving the existence of illegal occupants who aren't listed on the lease can be difficult. | ||
| IF the tenants file an answer to the unlawful detainer case, the landlord would have the burden of proving that people were living in the premises that were not on the lease. | ||
| The landlord might even have to subpoena the neighboring tenants to testify about what they see when the so-called guests come and go. | ||
| It would be a question for the judge to decide, so the more evidence you can produce, the better, as it's basically your word against the tenants. | ||
| If your tenants are on a month-to-month tenancy, you always have the option of serving an appropriate written notice of termination of tenancy. | ||
| Smokers have hard time finding rentals - Sacramento Bee "Rental Savvy" by Helene Lesel | ||
| Saturday January 19, 2008 - Helene Lesel is a syndicated columnist and property manager. | ||
| Question: | I've had a tough time finding a rental because I smoke. I found a great place but was told it was a smoke-free building, in side and out. Don't I have a right to smoke wherever I want? | |
| Answer: The right to smoke depends on when and where you want to light up. | ||
| Smoking has become a huge source of conflict, especially in light of health concerns regarding secondhand smoke. | ||
| Fanning the flames are smokers who maintain that smoking is their right and should not be compromised. | ||
| The conflict has given rise to several laws and definitions regarding smokers' rights, usually outlined by local law. | ||
| In some cities, both residential and commercial buildings have been deemed nonsmoking in the common areas, the units themselves and everywhere in between. | ||
| The only exception to the no-smoking-allowed rule being enforced may be when a pre-existing lease is silent on the subject, leaving the lessee undisturbed until the lease period runs out. | ||
| Because those who smoke aren't considered a protected class, discrimination laws don't' apply. | ||
| As a result, disallowing smoking has become more commonplace. Besides rental properties and other private spaces, smoking bans in public and private places are more commonplace. | ||
| The American Nonsmokers' Rights Foundation, an advocacy group that tracks local ordinances, reports that "as of January 2, 2008, a total of 2,671 municipalities in the United States have local laws in effect that restrict where smoking is allowed." | ||
| Restrictions include 524 municipalities that enforce a 100 percent smoke-free workplace and 488 with a local law in effect that requires 100 percent smoke-free restaurants. | ||
| California, Delaware, New York, Connecticut, Maine, Massachusetts, New Jersey, Rhode Island, Vermont and Washington don't allows smoking in restaurants and bars. | ||
| Indoor smoking bans are expanding to the outdoors including more than 45 beaches and more than 220 parks nationwide. | ||
| "What we're seeing is the trend is going from the inside out," Cynthia Hallett, the foundation's executive director. | ||
| The no-smoking trend began in 1998 when California became the first state to introduce a complete smoking ban inside public buildings. | ||
| Several states have since followed suit, and cities have tightened definitions and applications, too. | ||
| What about smoking in our near rental units? In California, the city of Calabasas enacted a secondhand-smoke ordinance in March 2006. In addition to restricting smoking in public places, it includes places of employment and apartment-building common areas. | ||
| In December 2007, the Calabasas City Council introduced an ordinance requiring at least 80 percent of apartment buildings to be permanently designated nonsmoking units by January 1, 2012 | ||
| Leases for nonsmoking units will require a clause stating that smoking is prohibited in the unit and that it is "a material breach of the lease to violate the terms of the ordinance." | ||
| Similar to enforcement of noise laws, if tenants violate the lease by smoking in or near their units, they are subject to being bounced when the current lease expires or if a violation is clear. | ||
| If a landlord receives written complaints from two different people about a tenant smoking, the tenant "may be subject to eviction at the discretion of the landlord," the site explains. | ||
| Ignore the warnings? In Calabasas, violations can be pursued as a misdemeanor offense. | ||
| How does that affect you as a smoker? Be warned: What ever the outcome of pending law and case law, leases across the country may come to include smoking as cause for eviction. | ||
| Question: | A neighbor has just moved in below me and smokes constantly. I've complained to the management, but they claim there is nothing they can do. Do you have any suggestions. | |
| Answer: Unless there's a prevailing law in your area, common sense will have to prevail. Has management asked the smoking tenant to close windows whenever possible or consider a air purifier? | ||
| Is management receptive to the idea of prohibiting smoking in some areas? If so, a smoking ban in all public or common areas, such as elevators, hallways and laundry rooms, is a good place to start and can usually be done with out the grace of local law. | ||
| Meanwhile, the existing smoker probably has the right to enjoy the inside of the unit as far as the lease allows. | ||
| Think you have legal rights? Don't hold your breath. Lawsuits have been filed on secondhand-smoke issues but are not complete on this evolving legal question. | ||
| For details, consult a legal professional. | ||
| Tenant responsible for dog's mess - Steven R. Kellman is director of the Tenant's Legal Center and J | ||
| James McKinley is principal in a law firm representing landlords, They can be reached at rgriswold.inman@retodayradio.com - Sacramento Bee, Saturday, January 26, 2008 | ||
| Question: | My husband and I, along with our two small children and dog, recently moved out of a townhouse that we live in for two-and-a-half years. | |
| The property manager told us that because of the use of a store-bought steam vacuum cleaner to clean up where the dog had an accident, the carpet in the entire house has to be replaced. | ||
| He said it will cost between $1,400 and $1,800. We put down $600 for a deposit and $400 for th pet deposit. Is he able to do this? | ||
| Landlord attorney James McKinley replies: You're responsible for any damage done to the rental property by pets, guests, children or you. | ||
| In most cases, a security deposit can be used for three things: to remedy defaults in payment of rent, for cleaning and to repair damages beyond normal wear and tear. | ||
| Even if a pre-move-out inspection isn't legally required in your area, it would have been helpful if your landlord had done one with you. | ||
| At that time, you could have been given a list of any cleaning or repairs necessary in order for your security deposit to be returned. | ||
| Assuming you were notified that the pet damage had to be remedied, you were well within your rights to use any type of carpet cleaner to attempt to remedy the situation. I don't see how a store-bought steam cleaner could made the situation any worse. | ||
| If you couldn't properly clean the carpets, the manager could have the carpet professionally cleaned and deduct those cleaning costs from your security deposit. | ||
| If you dog caused so much damage that the carpets couldn't be cleaned, you would be responsible for the replacement cost of the carpet. | ||
| However, your landlord should prorate the cost of deduction for the replacement carpet, based on the age of the carpet. | ||
| In other words, if carpet in a rental unit should last 10 years, and the carpets was tow-and-a-half years old, your landlord should deduct only 75 percent of the cost of the replacement carpet from your security deposit and mail you an accounting and receipts as legally required after you vacated the rental unit. | ||
| That said, it is probably unreasonable for the landlord to charge for replacing carpet in the entire house. | ||
| Tenant attorney Steven Kellman replies: In my experience, carpets in rentals generally have a useful life of 10 years in normal use. | ||
| Changing them after only two-and-a-half years is very unusual. You should not assume the carpets were new when you moved in. Although many landlords may not agree with this logic, I would suggest you propose a more modest charge to the owner, and I will give you some ideas on negotiating strategy. | ||
| Because you were there two-and-a-half years, you could prorate the cost of replacement at one-tenth of the cost per year by adding the prior years of carpet life to the time you lived there. | ||
| For example, if the carpet was three-and-a-half years old when you moved in, adding your two-and-a-half years makes it six years old. | ||
| This means your responsibility would be limited to the balance of carpets life- four years-- or only 40 percent of the replacement cost. | ||
| It may have been 10 years old when you moved in, meaning the carpet used up its life when you began living there. | ||
| If it was in" overtime," past 10 years, then it essentially had no value left, and you would not be responsible for any damages, whether caused by normal use or not. Therefore, it becomes important to know when that carpets was installed. | ||
| Using a store-bought carpet cleaner should pose no problem except that you must take care to extract the water those machines put down. | ||
| They are called steam cleaners, but they generally don't use real steam and have been known to cause damage if used improperly. | ||
| They use warm water to clean, which, if not extracted, can cause damage or mold. The deposits you have to the landlord can be used for cleaning and damages including replacing a damaged carpets. | ||
| If you don't agree with the landlord's assessment of the carpet, you can have a carpet-cleaning professional take a look at the situation. | ||
| Often a professional can clean a carpet the landlord believes is ruined. | ||
