Palo Alto Weekly

Real Estate - October 22, 2010

RentWatch

Checking up or peeping Tom?

by Martin Eichner

Q I am a single female. I agreed to rent a single-family home mainly because the house had a large back yard. Ever since I moved in three months ago, I have had a problem with my landlord showing up unannounced. More than once, I have opened the back door to go out into the yard and found him there. When I have asked him what he is doing, he will tell me something like "I am just checking up to make sure everything is OK."

Finding him on the property is making me very uncomfortable. Is he allowed to just show up like this?

A Under California law, a tenant has contracted for "possession" of the rental property, which means its exclusive use and enjoyment. Many inexperienced or non-professional landlords don't understand this concept and think that they are still entitled to treat the rental property as theirs to use as they see fit and to enter when they wish.

California Civil Code Section 1954 lists the very narrow grounds upon which a landlord is legally permitted to enter the rental property. In theory, if the landlord does not observe these limits, he is a trespasser when he enters the rental property.

Section 1954 allows a landlord to enter to perform necessary or agreed repairs, or pursuant to a court order, or to exhibit the premises to potential renters or purchasers or to perform a "pre-departure" inspection two weeks before the current tenant vacates.

Even if the landlord is entering for one of these permissible purposes, he must first give you 24 hours written notice and only enter during "normal business hours." Section 1954 also allows entry at any hour after proper notice if the landlord believes the property has been abandoned and it allows entry without notice at any hour in the case of an emergency or when the tenant has given permission, at the time entry is requested.

Assuming your landlord is innocently misunderstanding these rules you could give him a copy of Section 1954 or ask your local mediation program to explain these rules to him. Of course if the activity continues, you may need to pursue a civil or criminal claim for trespass.

Q My one-year lease will expire soon. I have been negotiating with the property manager to continue, but I would prefer to go month-to-month instead of locking myself into a new lease. The property manager says that he will only sign a month-to-month agreement if our new agreement allows him to terminate the tenancy on 30 days written notice. I was told that I have a right to a 60-day notice if I become a month-to-month tenant. Is that true, and if it is true, should I agree to waive that right?

A You are correct that you should be entitled to a 60-day notice under California Civil Code Section 1946.1(b). This statue requires a 60-day notice to terminate a month-to-month tenant occupying the property more than one year. Once you continue renting as a month-to-month tenant after your one-year lease expires, you will have met the requirements of this statute.

Civil Code Section 1953(a) states that a waiver of certain protections, such as the landlord's duty to maintain a habitable premise, is void. The right to a 60-day notice codified in Section 1946.1(b) is not one of the rights specified in Section 1953(a). However, Section 1953(b) voids a waiver of any other basic tenant right, unless that waiver was presented to the tenant before the tenant initialy occupies the premises. That request for a waiver prior to your initial rental didn't occur, which means the waiver cannot be added to your rental agreement at this subsequent stage.

Remember that Section 1946.1(b) only applies to month-to-month tenancies, so if you and your landlord decide to revert to a lease, the length of notice to terminate when the new lease expires is totally a matter of negotiation between you two.

Martin Eichner edits RentWatch for Project Sentinel, an organization founded in 1974 that provides landlord tenant dispute resolution and fair housing services in Northern California and administers rental-housing mediation programs in Palo Alto, Los Altos and Mountain View. Call 650-856-4062 for dispute resolution or 650-321-6291 for fair housing or e-mail mediate4us@housing.org.

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