Real Estate

RentWatch

When the owner sells, is tenant's lease up?

Q About six months ago, I signed a one-year lease to rent a duplex unit in a condominium community. Now the owner tells me he is canceling my lease because he needs to sell the unit. Can he do this?

A A lease guarantees the existence of the rental relationship for both the landlord and tenant through the entire term of the lease period. As a matter of law, a lease is canceled only by a few extraordinary events such as destruction of the premises by an "act of God."

A decision by the owner to sell is not one of these extraordinary events. If the rental property is sold during the term of the lease, the new owner becomes the "successor in interest," obligated to continue to comply with all the terms of the existing lease unit it expires.

The only exception would be if the lease contains an explicit escape clause specifying that sale of the property terminates the lease.

You should check your lease to see if there is such an escape clause. Otherwise, the lease can be canceled due to sale only with your express permission, which means you could consider negotiating a termination agreement in exchange for some financial or other benefit.

You could also involve your local mediation program to help with these negotiations, if you should decide to explore that option.

Q I read a newspaper ad for an apartment community that I thought might be a good living situation for me. But when I followed up to obtain a rental application, I was told that I was too young! I have never been told that before. Refusing to consider me seems like discrimination based on my age. Do I have a claim for discrimination?

A The answer depends on obtaining some further information about the status of this specific property. Certain properties are exempt from the fair housing laws on age discrimination because they have been designated as senior housing.

Specifically, the following properties are exempt: 1) senior citizen housing complexes designed for residents that are age 62 years or older; 2) federal or state programs and complexes designed to be solely occupied by seniors; and 3) senior housing in which 80 percent of the units have been set aside for at least one tenant occupying each unit who is over the age of 55.

If the property that caught your attention is not participating in one of these programs, your treatment may have been discriminatory. Your local fair housing agency can look into whether or not this specific housing complex is entitled to an exception from the fair housing laws.

Q I was recently hired to manage a rental property with 32 units. Given all the current economic uncertainty, I want to review the financial records of current residents to decide which of them are financially stable and which ones can be expected to have trouble paying the rent. I want to be ready in case ownership decides to increase the rent in the future to make up for rent reductions they were forced to offer in the last couple of years.

Based on my knowledge of the industry, I feel that running a credit report for each resident will be the best way to check their ability to pay in the future, which is why we always obtain a credit report for rental applicants. Before I start this process, I just want to make sure I won't be violating any laws if I do run the credit reports.

A We recommend that you look at alternative methods to achieve your goal. First, you will need a written authorization from each tenant to obtain a report. We do not believe you can charge a current tenant for the cost of running the report.

A current tenant is not an applicant covered by Civil Code Section 1950.6(a), the statute that allows you to charge an applicant for the cost of a credit report connected to an application process. Under the Consumer Credit Reporting Agencies Act, California Civil Code Sections 1785.1-1785.35, if you take any adverse action based on your review of a tenant's credit report, Section 1786.40(a) of the Act requires you to give an immediate written notice to the tenant. That notice must include the contact information for the credit reporting agency that issued the report, a statement that your action was based in whole or in part on the credit report, and a statement telling the tenant that he or she has a right to a free copy of the report from the agency within 60 days of your notice. This notice entitles the tenant to access the report and dispute its accuracy.

Rather than impose these requirements on yourself, you should look to other sources. A credit report is only a report of recent general financial activity. You can obtain much more direct information about prior relevant financial activity by reviewing the rent payment histories for your current tenants. There are no reporting or disclosure obligations attached to your own internal review.

The rental payment history will directly indicate a tenant's level of reliability in meeting his or her rental obligations. That history should be more important than their record of dealing with other types of debt, such as consumer loans and credit cards that would be included in a credit report.

Q I know I did something stupid but now I am wondering if you can help me. I have rented a two-bedroom apartment in the same apartment complex for two years and I am very happy living there. About four months ago, a co-worker, who I will call "Fred," was laid off from our company. I felt sorry for Fred, so I offered to let him stay in my apartment until he could get back on his feet.

Well, four months later he doesn't seem to have any motivation to improve his situation. We aren't getting along and I feel I have lost the use of my own apartment because he spends all day lounging around the living room. Fred promised to leave several times but then didn't.

There is no written agreement between us and he has never paid any rent or any other expenses, so I don't think he is a tenant. Can I just call the police to have him removed?

A Unfortunately, many housing residents learn the hard way that a friend, or "special friend," or adult family member who has been allowed to live in a house or apartment for more than 30 days has established tenant status under California law. There is no requirement that there be a written agreement or an agreement to pay rent, verbal or written, in order to establish tenant status.

The only exception would be a genuine trespasser, someone living there without your express or implied permission. Assuming Fred has become a tenant, you have become his landlord. You cannot remove him by calling the police.

You will be required to utilize the same written notice of termination and unlawful detainer court process that any landlord is required to use.

There is more bad news for you. If your rental agreement limits the number of adults allowed to reside in your unit or there is a time limit on guests staying over, you may be in violation of your own rental agreement. If so, you must act to remove Fred as soon as possible.

Q I signed a one-year lease to rent a cottage. The lease has a provision that my rent has been lowered by $100 per month in exchange for my promise to "maintain the front and back yards." The provision states that my rent can be increased if I fail to perform this maintenance.

I have been careful to comply with this requirement during the four months I have been living in the cottage. I have mowed the lawns, watered the plants and trimmed the bushes. Now the landlord has given me a letter stating that I have violated this provision and that he is now going to hire a professional gardener and charge me the $100 per month that the gardener will be charging for his services.

The lease does not specify the exact maintenance work I am supposed to perform; it just says that I will maintain the front and back yards. Is it legal to charge me for the gardening service?

A This story illustrates the danger of using language in rental agreements that does not clearly describe the rights and responsibilities undertaken by the party. Obviously, your definition of "maintenance" does not match the understanding that the landlord had in mind when you both signed the lease.

The way to avoid this dispute would have been a clear itemization of the types of maintenance duties you were undertaking as well as timeframes and some standards for judging performance.

For example, a better agreement would have been that "tenant agrees to mow all lawns once a week and to trim the grass to a height of 1/2 inch."

One solution would be to now sit down with your landlord to mutually agree to a specific list of duties and standards for complying with them. Your local mediation program can help you arrange this type of meeting.

With the general language currently in the lease, a court would be forced to make a judgment about the reasonable intentions of the parties if you and the landlord can't agree on more definite language. The outcome would be difficult to predict in advance.

Meanwhile if the landlord insists on raising your rent to the full amount by eliminating the discount, you would risk eviction for failing to pay the full rent if you don't pay the full sum. The safer but more cumbersome alternative would be to pay the full rent and file a claim in small claims for a refund based on your documentation of performing reasonable maintenance.

Q I just received a 30-day notice terminating my tenancy. I am OK with moving, but I wonder how to count my 30-day period to make sure I am out of the apartment on time. A friend told me that weekends and holidays don't count toward the 30 days. Is that correct?

A The rules for counting the time period of all rental notices are the same, regardless of whether the specific notice is a 3-day "perform or quit," or 30- or 60- or 90-day termination. You do not count the day the notice is served. You start counting the next day until the applicable number of days have passed.

Weekends and holidays are included within the time period, except that the last day for compliance cannot occur on a weekend or holiday, so the last day is extended to the next regular business day. For example, a 3-day notice served on Dec. 1 expires on Dec. 4, unless the 4th falls on a Saturday, Sunday or holiday, in which case it expires on the next business day. A 30-day notice served on Dec. 1 expires on Dec. 31, if the 31st is a business weekday.

These rules apply when the notice has been personally served, or when service has been accomplished by "nail and mail," which means one copy is posted on the door of the rental unit and another copy is placed in the mail on the same day.

Q I am actually writing about my brother, who does not live a traditional lifestyle. He has lived in a local motel for the last three months. My brother pays his rent on time, but every 29 days, the motel owner makes him move to a different unit in the motel. Now the owner is threatening to call the police to remove him.

The owner says he doesn't have to give my brother any advance notice; he can just call the police to physically eject him as an "unwanted guest."

My brother lives on disability but he always pays his room charge on time. Does he have any rights here?

A Contrary to the belief of some motel operators, California Civil Code Section 1940 provides that a resident living in the same motel for more than 30 days becomes a tenant. It sounds like the motel operator already knows about this law, which is why he is moving your brother just prior to each 30-day period.

The only exception to this tenancy status is when the hotel or motel is a "full service" facility offering such amenities as room service and maid service. We assume this motel does not offer these services.

Moving your brother from room to room does not remove his tenant status. Civil Code Section 1940.1 specifically precludes the motel operator from requiring a motel occupant to change rooms every 29 days in order to defeat the protections of Civil Code 1940.

Assuming your brother has become a lawful tenant, the motel owner can only remove him through the same written notice and unlawful detainer process that would be necessary to evict any other tenant. If the motel operator tries to utilize the local police for a summary ejection, your brother should explain these protections to them and if necessary give them a copy of the civil code sections, just in case the specific police officers have not been fully trained on these rules.

Q I recently answered an ad for a vacant apartment. I have a pet Chihuahua so I was only interested in a community with a pet-friendly policy. When we toured the property, the rental agent would only show me available units on the first floor. When I asked about units on the second and third floor, he told me that pets were only allowed on the first floor. Isn't it discriminatory to restrict pets to only one part of a building?

A Landlords have broad discretion to allow or prohibit pets in a rental complex, including the right to limit tenants with pets to certain units with the overall community. Landlords can also impose reasonable rules on pet owners including limiting the size or type or number of pets allowed without being in violation of any laws against discrimination.

The answer is different if your pet is a companion, service or support animal prescribed by a treating physician. A service animal performs a task or tasks for the disabled tenant to help the tenant perform normal living activities. A companion/support animal provides emotional support for a tenant with a psychological disability. Under the fair housing laws, a companion, service or support animal is not a pet.

A landlord would not be able to limit the location of a companion, service or support animal to certain units in the complex, such as the first floor. If a potential tenant meets the applicant financial screening criteria, the landlord must allow the companion, service or support animal as a reasonable accommodation to the tenant's disability, if the tenant makes a written reasonable accommodation request.

The formal written reasonable accommodation request should be accompanied by a support letter from a treating physician. The treating physician does not have to disclose the actual disability, but must certify that he/she is a physician, is treating the tenant for an eligible disability, and that part of that treatment plan includes the services of either a companion, service or support animal. Landlords cannot charge a pet deposit for the companion, service or support animal but can impose reasonable rules to assure proper supervision of the animal's activities.

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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