NEW 2004 TENANCY LAWS
By: Roman P. Mosqueda, Esq.
Effective January 1, 2004, landlord-tenant statutes have been amended and modified in the areas of landlord entry, liability for untenantability of rental unit, attorney’s fees, punitive damages of, pre-vacancy inspections and security deposits, among other changes.
This commentary discusses the statutory changes that may affect your rights and obligations as a landlord and/or as a tenant in California.
Entry Of Dwelling
Unit By Landlord:
Section 1954(a) of the California Civil Code provides the instances when a landlord can enter the rented dwelling unit as follows:
“1. In case of emergency.
2. To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers or contractors or to make an inspection pursuant to subdivision(f) of Section 1950.5 (on pre-vacancy inspection).
3. When the tenant has abandoned or surrendered the premises.
4. Pursuant to court order”.
Section 1954(d) thereof regulates the times of such landlord entry, as follows: “…the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours.”
The exception is “in cases of emergency or when the tenant has abandoned or surrendered the premises…unless the tenant consents to an entry during other than normal business hours at the time of entry,” pursuant to Section 1954(b) thereof.
Notice Of Entry:
Effective January 1, 2004, the Notice Of Entry “shall include the date, approximate time and purpose of the entry.” The notice may be personally delivered to the tenant, left with someone of a suitable age, and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice, as provided by Section 1954(d)(1) thereof.
It also provides that “(t)wenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary.” And the “notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.”
“If the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice to enter may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose.”
Under the amendment effective January 1, 2004, “(t)he notice shall include the date, approximate time, and purpose of the entry.” See Section 1950.5(d)(2) thereof.
Oral Agreement
Of Entry:
Likewise effective January 1, 2004, “(t)he tenant and the landlord may agree orally to an entry to make agreed repairs or supply agreed services. The agreement shall include the date and approximate time of the entry, which shall be within one week of the agreement. In this case, the landlord is not required to provide the tenant a written notice.” See Section 1954(d)(3) thereof.
And no notice of entry is required: (1) To respond to an emergency.
(2) If the tenant is present and consents to the entry at the time of entry.
(3) After the tenant has abandoned or surrendered the unit.” See Section 1954(e) thereof.
Increased Landlord Liability
For Untenantable Dwelling:
Effective January 1, 2004, the statutory penalty of up to $1,000.00, plus reasonable attorney’s fees and costs of suit, in Section 1942.4 of the Civil Code for demanding or collecting rent for a untenantable dwelling, has been increased to $5,000, plus actual damages sustained by tenant and special damages of not less than one hundred dollars.
A dwelling is deemed untenatable, if it substantially lacks effective water-proofing and weather protection, good working plumbing or gas facilities, hot and cold running water, good working heating facilities, good working electrical lighting, clear and sanitary building, grounds and appurtenances, clean receptacles for garbage and rubbish in good repair, and floors, stairways and railings in good repair. See Section 1941.1 thereof.
Four conditions are required before the landlord can be held liable for the penalties for collection of rent for untenantable dwelling:
(1) The dwelling substantially lacks the affirmative standard characteristics listed in Section 1941.1.
(2) Failure of the landlord to abate the nuisance or repair the substandard conditions, after inspection of the premises by a housing official and notification thereof given to the landlord or agent in writing.
(3) Continuance of the untenantable conditions after thirty-five days (reduced from 60 days) from date of service of the notice (from the housing official) and the delay is without just cause.
(4) The conditions were not caused by an act or omission of the tenant.
Unlawful Acts of and
Punitive Damages Against
Landlords:
Effective January 1, 2004, it is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling:
“(1) Engage in conduct that violates subdivision (a) Section 484 of the Penal Code (acts constituting theft).
(2) Engage in conduct that violates Sections 518 of the Penal Code (crime of extortion: obtaining of property from another, with his consent, induced by wrongful use of force or fear).
(3) Use, or threaten to use, force, willful threats, or menacing conduct that interferes with the tenant’s quiet enjoyment of the premises in violation of Section 1927 (warranty of quiet possession) that would create an apprehension of harm in a reasonable person.
(4) Commit a significant and intentional violation of Section 1954 (landlord’s entry of rental dwelling unit requirements).” See Section 1940.2 thereof.
A tenant who prevails in a civil action to enforce his or her rights is entitled to a civil penalty not exceeding two thousand dollars for each violation. See Section 1940.2(b) thereof.
And the amount of punitive damages against a landlord, who retaliates against a tenant for exercise of his or her legal rights, has been increased from up to $1,000 to $2,000 for each act, in Section 1942.5(f)(2) thereof.
Pre-Vacancy Inspection and
Security Deposit:
Under Section 1950.5(f) of the Civil Code, a landlord is required to notify the tenant in writing of the tenant’s right to request and be present at a pre-vacancy inspection of the rental dwelling unit, within a reasonable time after notification of either party’s intention to terminate the tenancy, or before the end of the lease term.
According to Section 1950.5(f)(1) thereof, “(t)he purpose of the initial inspection shall be to allow the tenant an opportunity to remedy identified deficiencies… in order to avoid deductions from the security.”
And “(b)ased on the inspection, the landlord shall give the tenant an itemized statement specifying the repairs or cleaning that are proposed to be the basis of any deductions from the security the landlord intends to make… This statement shall also include the texts of subdivision (d) (on holding of the security by landlord and priority of claim of the tenant thereto) and paragraphs (1) to (4) of subdivision (b) (on reimbursement of landlord from security for tenant’s default in rent payment, repair of damages exclusive of ordinary wear and tear, cleaning of premises to the same level at inception of tenancy, and restoration, replacement or return of personal property, if authorized).” See Section 1950.5(f)(2) thereof.
Effective January 1, 2004, the pre-vacancy inspection requirements are not applicable when the tenancy is terminated by default in the payment of rent, failure to perform other conditions of the lease or rental agreement, (such as violation of no assignment or subletting), committing waste or nuisance (includes selling a controlled substance) upon the rental unit. See Section 1950.5(f)(1) thereof.
And effective January 1, 2004, in addition to providing the tenant, within 21 calendar days of the tenant’s vacancy, with an itemized statement indicating the basis for, and the amount of, any security received and the disposition of the security, the landlord must include copies of documents showing charges incurred and deducted by the landlord to repair or clean the premises. See Section 1950.5(g) thereof.
But if the repair cannot reasonable be completed within 21 calendar days after the tenant’s vacancy, the landlord may deduct the amount of a good faith estimate of the charges that will be incurred. See Section 1950.5(g)(3) thereof.
And within 14 calendar days of completing the repair or receiving the documentation, the landlord shall provide the tenant with the updated itemized statement, supporting documentation and the remainder of the security deposit.
A landlord need not comply with the requirements to supply documentation on charges incurred and deduction and updated itemized statement, if the deductions for repairs and cleaning together do not exceed $125, or if the tenant has waived in writing his or her rights thereof. See Section 1950.5 (g)(4) thereof.
Landlord-tenant disputes can be complex and may require fast action.
(The Author, Roman P. Mosqueda, is a real estate broker and attorney, who has personally handled landlord-tenant cases for over 20 years).