Palo Alto Weekly

Real Estate - October 29, 2010

RentWatch

Renter just wants to be able to open the window

by Martin Eichner

Q I have neighbors who smoke outside of the window of my apartment. I suffer from chronic asthma and need fresh air in my apartment. Sometimes I want to be able to open my window to let fresh air in, but instead I get cigarette smoke.

I have talked to these neighbors about smoking in a different place so I can open my windows, but they refuse. What can I do?

A Chronic asthma that impacts your basic life activities is a disability protected under the Fair Housing Act. As a result of that protection, you may be able to request a reasonable accommodation from your landlord to move to another unit where your neighbors are non-smokers.

You would need a letter from you physician verifying your disability and your need to relocate. Present the letter to your landlord and request to be allowed to move to the next available unit that is not located next to smokers.

A fair housing agency will assist you in requesting and obtaining this reasonable accommodation request. If the majority of tenants at the complex are non-smokers, you could also consider asking them to circulate and sign a petition requesting that the property owner establish a smoke-free policy for the building.

If the owner supports the creation of a non-smoking community, implementation of the new policy would require a notice of change of terms if the tenants have month-to-month agreements. If there are smokers renting pursuant to a lease, the change could not be implemented until their leases expire, unless they consent to an earlier modification.

For more information about this issue visit the Technical Assistance Legal Center at www.phlpnet.org/talc, which provides free assistance to agencies, services and individuals on tobacco-control policy issues.

Q For many years, I have been living with my sister and her husband in an apartment they rent. The property manager knows I live there, but I pay rent to my sister who pays the property manager.

Much to my surprise I learned the hard way that my sister had stopped paying the rent and that an eviction case had been filed against her and her husband. I only found out when I came home one day and found a sheriff's notice on the front door stating that we would be physically evicted in five days.

I never received any court papers and when I asked my sister for the court papers, I saw that I was never named as a defendant in the court case. I didn't do anything wrong here and I wonder if I can continue to live in this apartment.

A A landlord seeking to pursue an eviction, known as an unlawful detainer, must name and serve every adult known to be living in the rental unit with the unlawful detainer summons and complaint. An adult such as you who was not named is not subject to the judgment for possession that the landlord apparently obtained against your sister and husband, which in turn generated the writ for the sheriff's notice.

The only exception is if you were separately served with another paper known as a "prejudgment claim of possession" form, which requires you to immediately take certain actions to protect your rights. However, you are asserting here that you weren't served with any papers.

To be sure, you should probably go to the office of the clerk of the superior court that issued the judgment and writ to make sure there is no declaration of service listing you as a recipient of these documents. If there is no claim you were previously served, you can file a post-judgment claim of possession in the same superior court, pursuant to California Code of Civil Procedure Section 1174.3. There is a specific court form for this purpose.

You will be required to pay a court filing fee or else obtain a fee waiver under the "indigency" standards. Once you file the claim, the sheriff cannot proceed with the physical eviction against you until the court has resolved your status.

A hearing on your claim will be set quickly, although the time will be extended if you also deposit the equivalent of 15 days of rent for the unit. Without explaining the legal technicalities, we can tell you that the landlord will eventually be entitled to remedy the mistake of failing to name you and to proceed with the eviction.

However, filing the claim may give you some leverage to negotiate a resolution with the landlord either on your own or through your local mediation program, for example to allow you time to vacate or to allow you to become an acknowledged tenant pursuant to a new rental agreement.

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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