Legal Corner: Legal Questions & Answers
QUESTION
Seems like every time I turn around, there is another state or federal program threatening to fine me into poverty in the event I don’t comply with some new requirement. The most recent seems to be this EPA rule regarding renovation repair and painting. I’m an owner of a fourplex, built in 1968, what does a guy like me have to do to stay solvent and out of jail?
ANSWER
The latest iteration of the EPA’s 2008 implementation of the Lead Safe Practices legislation requires that after April 22, 2010, property owners who renovate, repair or prepare surfaces for paining in pre-1978 housing or space rented by child care facilities must be certified and follow lead safe work practices required by the EPA’s Renovation, Repair and Remodeling rule. There is a form involved, training, and of course a fee, and yes penalties for non compliance are severe. Not all housing built prior to 1978 contain lead, in fact only 24% of homes built between 1960 and 1978 contain lead, 69% of homes built between 1940 and 1960, and 87% of homes built prior to 1940. The lead safe maintenance practices are required unless your property has been tested and certified to be lead free. For many owners, it may be less burdensome and more cost effective to hire a certified inspector or risk assessor to determine if the property has lead or lead hazards. After April 22, 2010 ensure that your contractors are certified in lead safe practices, and follow the lead safe procedures. Expect to pay a little more for prep, performance of any repairs, and clean up. As any disturbance of six square feet of interior space, twenty feet of exterior space, will invoke the practices requirements, it will be an issue that all owners and contractors must be very familiar with. You can get complete information at www.epa.gov/lead/pubs/renovation.
QUESTION
One of my residents is taking advantage of me. Lately he’s been deducting a portion of his rent because he claims to have fixed things in the apartment, and he thinks I should reimburse him for his efforts. I just saw his most recent rent check and it’s $118 short. Seems like he had to replace all of the faucet washers because one was apparently leaking and he doesn’t want to waste water. Not only did he charge me for the three washers, but he thinks he’s worth $85 an hour for his time. Had he told me, or my handyman, the problem could have been easily corrected in about twenty minutes. This is the third time he’s done it this year. Can he do this?
ANSWER
No. Your tenant is abusing a remedy that is provided to residential tenants in California. Under certain extreme circumstances, a tenant may make repairs and deduct those out of pocket expenses from his rent. The defect must be a serious dilapidation that renders the rental unit uninhabitable, and the tenant must provide the landlord notice of the dilapidation and a reasonable opportunity for the landlord to fix the problem. Generally thirty days is deemed a reasonable time, but some defects, such as a defective heater in winter, will require the landlord to respond quicker. If the defect is serious, and the landlord fails to correct it, the tenant may then “repair and deduct” the cost of repairs from the next rental installment. This remedy may only be invoked twice in any twelve-month period and may not exceed the monthly rent. Your tenant would not be entitled to deduct his costs for replacing the faucet washers under the repair and deduct theory because the defect isn’t a serious dilapidation and he failed to give you prior notice. As such, the resident is in default and you could serve him with a three-day notice to pay rent or move out for the amount improperly deducted.
QUESTION
I’ve been on the receiving end of several small claims actions recently claiming that I withheld more of the security deposit than I was rightfully entitled. After going to trial on a couple, it seems like there isn’t really one correct way to do it, seems like each judge that heard my cases had a different opinion as to how much I could rightfully deduct for certain items. Can you give me some guidance that will keep me “out of court?”
ANSWER
Disposition of security deposits upon move out is one of the most litigated issues in civil court. It is important that you understand what may rightfully be deducted from the deposit and what may not. Civil Code Section 1950.5 provides that a landlord may deduct unpaid rent, cleaning and necessary repair charges in excess of “ordinary wear and tear.” But the code does not adequately define “ordinary wear and tear,” which is the reason for the differing opinions from different judges. There are certain guidelines that most courts follow. Most courts agree that paint should last three years, and carpet should last seven. Any damage that is tenant caused that shortens these expected life spans would be chargeable to the tenant. Scratches, holes, or unauthorized painting of the walls would also be recoverable. Ordinary wear and tear following a one year tenancy would normally include a couple of picture nail holes in primary walls, vacuum scrapes along certain baseboards, minor dust build up in out of the way areas, and minor traffic wear in the carpet. These would generally not be allowable as deductions. But ordinary wear and tear would not include repair or removal of numerous lag or anchor bolts, grease spots or stains in the carpets, or scratches or holes in the walls. An accurate move-in and move out checklist plus pictures will definitely improve your chances of prevailing in court. If you are claiming carpet replacement, cut out and save a sample of the damaged carpet as evidence at trial. Remember, if you are deducting more than $125 for damage and cleaning, you must include copies of your receipts and each receipt must state the name address and telephone number of the vendor who provided the service.
QUESTION
I’m getting conflicting advice about whether or not I must rent to some one that does not have a valid social security number, nor an official picture ID. Seems like all the Fair Housing guys say I ‘cannot discriminate’ and that I must rent to all, regardless of whether or not the prospect can prove who he is, or verify his tenancy history, or his ability to pay the rent. I have been following that advice for years, and now have a building full of undocumented people, that I could never find in a million years if I ever had to collect from them. I want to take my building back, and only rent to persons that qualify, that have verifiable identities and credit, and are good credit risks. What are my rights?
ANSWER
Our industry has passively allowed this erosion to occur over many years. Many landlords have looked the other way, in favor of the quick rental, the cash payments, the full building, the reduced confrontation, we’ve taken the easy way out. Landlords have been wary of lawsuits claiming discrimination, and have believed the bullying taunts and threats from the tenant and immigrant rights activists, that we have just taken the easier and less confrontational course of allowing it to happen. We blame our government for not addressing the illegal immigration issue; republicans, conservatives and business want cheap labor; while democrats, and liberals want cheap votes. We blame employers for hiring, and our ‘welfare state’ for creating the magnet that keeps drawing. Landlords are part of the problem as well. By succumbing to the short term temptation of the quick rental to the unverified, the undocumented, we are contributing to the problem. Many landlords are realizing that rather than just complaining, they can be a part of the solution. Landlords have absolutely no obligation whatsoever to rent to an individual who is unable to independently verify his identity, his past tenant history, and his ability to comply with the terms of the rental agreement, including his financial ability to pay the rent. Our system of society is built around a numeric social security or tax identification number. Our life history, good and bad, is reported more often than not, into a data base that is organized by, and sorted by the social security or a tax identification number.
QUESTION: Can you remind me of my obligations regarding renting to a prospective tenant that is also a registered sex offender?
ANSWER
Your tenant screening criteria should be applied consistently to all applicants. In general your screening criteria should review and verify 1) the prospect’s financial ability to honor their tenancy obligations, 2) that the prospect has a positive prior tenancy and credit history, 3) that the prospect has not been evicted previously, and 4) that the prospect will not place other persons, or the owner’s property, at risk of harm. When evaluating a prospect with a criminal history, determine the nature and extent of the conviction, by requesting an explanation from the prospect, or by requesting a criminal data base report. A conviction for a violent crime against a person or property is a serious offense that would enable an owner to decline a prospect. An applicant who falsifies the application by stating that he was not convicted, when he actually was, can be declined for providing false information on the application, provided all applicants who falsify information are treated the same. In this age of violent criminals in our midst, and astronomically high recidivism rates, it is more important than ever that we know who our residents are, and keep the ne‘er do wells out of our communities.
The foregoing is intended to provide general information, not specific legal advice. You should direct specific inquiries to your attorney. Stephen C. Duringer, Esq. is an attorney specializing in landlord tenant law, evictions, judgment enforcement, and asset preservation planning. His firm, the Duringer Law Group, PLC, with offices in Anaheim Hills and Lake Arrowhead, is one of California’s largest and most successful landlord tenant law firms, representing landlords exclusively throughout Southern California. The firm may be reached at 714.279.1100 or 800.829.6994 or 877.387.4643. Visit www.DuringerLaw.com for more information.
