Palo Alto Weekly

Real Estate - August 26, 2011

RentWatch

Can a stalking victim be evicted?

by Martin Eichner

Q I am embarrassed to ask this question but I have no choice. I separated from my husband six months ago. Two months ago, I rented an apartment so that I could live in peace but my husband keeps stalking me and threatening me.

The police were called the first time and tried to calm down the situation, but when he showed up again a week later, I obtained a restraining order. I have been paying my rent on time, but the resident manager has told me I need to leave before the end of the month because the owner doesn't want to upset the other tenants with my domestic problems.

I cannot find another place before the end of the month. I am afraid I will wind up living on the street. What can I do?

A The situation you describe would define you as a victim of domestic violence within the meaning of a new state law, California Code of Civil Procedure Section 1161.3. This law prohibits terminating the tenancy of a victim of domestic violence, if the domestic violence has been documented in a police report within the last 180 days or has resulted in a restraining order.

"Domestic violence" covered by this statute includes "stalking." Since you have both a police report and a restraining order, you should be protected from eviction by this statute. You would also be protected if your husband was a tenant on the lease.

You should know that you have the right to request that your landlord change the locks to your unit to ensure your husband cannot get in. If your landlord does not change the locks as requested within 24 hours, you may change the locks yourself, as long as you do so in a "workmanlike" manner and give the landlord a copy of the new key.

The law does allow the landlord to evict you if you voluntarily allow your husband into your unit or if your husband is a genuine danger to the other tenants. However, if you continue to pay your rent, don't give permission to your husband to return, and otherwise comply with the rental agreement, the landlord cannot terminate your tenancy.

If an eviction action, known as an unlawful detainer is filed against you, you should file a written answer asserting this statute as defense to the eviction, and you should bring supporting evidence to show the judge on the day of trial.

Q I just purchased a small apartment building with four units. I have never been a landlord before so I need help with a problem I am having. The prior owner gave me a set of keys to each unit. When I tried to enter one of the units recently when the tenant wasn't home, the key did not work.

I suspect the tenant changed the lock without telling me or the prior owner. I was thinking about just having a locksmith come to the property and change the lock again. Would I be within my rights if I do so?

A A landlord has a right to access a rental unit, and has a right to a key to the unit in order to do so. For example, if there were an emergency such as a broken sewer or a toxic leak, the landlord has a duty to take immediate action and would need a key to do so.

It is a good practice to include a provision in your rental agreement requiring a tenant to provide a workable key to the rental unit. However, we believe you can enforce this right even without an explicit clause in the rental agreement.

The proper method to enforce your right is to serve a written three-day notice to "Perform Covenant or Quit," directing the tenant to provide a workable key. If the tenant fails to comply, you may proceed with an unlawful detainer action in the Superior Court to evict the tenant.

However, you don't have a right to unilaterally change the lock. Such an action would be viewed as a "forcible entry" prohibited by California Code of Civil Procedure Section 1159. You could also be subject to $100 per day damages.

By the way, you haven't indicated why you wanted to access the unit. As a new owner, you might not be aware that you have no general right to enter one of your rental units. Under Civil Code Section 1950.4, you are allowed to enter only for specific reasons, such as to make repairs or to respond to an emergency.

You must also give 24-hours advance written notice of your intent to enter unless there is a true emergency or a court order, and your actual entry should be restricted to normal business hours. If you comply with these requirements, you can enter whether or not the tenant is actually home, which is another reason why you are entitled to a workable key.

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 email mediate4us@housing.org.

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