Fall Real Estate 2009

Publication Date: Friday, October 9, 2009

Rent Watch
Do housing laws apply for random rentals?

Q- I own a one-bedroom cottage that I rent out on a weekly basis during the summer and winter months. Do any fair-housing laws apply for this type of random rental? 

A- A If the rental is limited to one week and there is no presumption that the occupant will return, the federal fair-housing laws and state fair-housing laws would not apply.

Federal fair-housing laws would apply to the one-week rental if there was a belief that the occupant might return in the future due to the nature of the housing, like a time share for example. Remember the fair-housing laws apply to residential property, but not commercial property like a hotel or vacation rental.

Time shares are covered by the federal fair-housing laws, because the individual owner has the right by ownership to return over time.

The California Department of Fair Employment and Housing uses a 30-day rule of continuous occupancy to determine if the state fair-housing laws apply. In any case, California public accommodations law would apply to this type of rental, and would prohibit any discriminatory practices.

Q- I recently participated in a mediation held by the local volunteer mediator program. The issue was $650 of my security deposit withheld by my landlord. The landlord and I met for two hours but could not reach an agreement on whether I was owed a larger refund, because we disagreed on whether I damaged the carpet.

I now plan to file a case in small claims court for the refund, but I saw the landlord taking notes during the mediation and wonder if he can use those notes in court. Also, I had photos that I used in the mediation to show the condition of the carpet. Can I use these photos in court?

I have these questions because I was told that the mediation was confidential.

A- A Mediation confidentiality in California is governed by California Evidence Code Sections 1115 through 1128. In summary, statements made during the mediation process by any party to the mediation cannot be used in court.

The "process" includes initial "case development" discussions with the mediation program staff as well as any statements made during the actual mediation. The same rule applies to written communication sent to the mediation staff, and notes prepared for mediation or taken during the mediation.

Also, the mediator cannot be called as a witness by any party to the mediation to testify about what happened during the mediation.

On the other hand, pre-existing documents, such as rental agreements or photos taken prior to the mediation, can be used in court even if they were discussed during the mediation, because they were not created specifically for the mediation.

If you had reached a written agreement during the mediation, you and the other party had a choice on whether it should be confidential. You and the other party could have elected to make the agreement nonconfidential, or even admissible in court, or else you could have elected to treat it as confidential.


Q- I am the resident manager for a 10-unit community. Two weeks ago, a tenant who occupies one of the units was taken away by the police. I have not seen him or heard from him since, nor has he paid the rent for this month.

I can't see much through the window, but it looks like his belongings are still in the unit. What should I do? Assuming he is in jail, do I have to hold the apartment for him until he is released? I am very worried about getting in trouble here.

A- Your question is covered by the statutes on "abandonment." Assuming your goal is to reclaim possession of this rental unit, the rules are set forth in California Civil Code Section 1951.2 and 1951.3. In order to proceed to reclaim the unit, you must meet several requirements.

The rent due from this tenant must be at least 14 days late, and you must have a "reasonable" belief that the tenant has physically abandoned the rental unit. The fact that you know he was arrested and that you have not seen anyone living in the unit since that time, is definitely relevant to establishing a reasonable belief. Other common-sense evidence might include other signs of disuse such as unclaimed mail, or a car in his parking space that is not being driven. You might check the local public court records to see if there is a criminal case file indicating the likelihood that this person will not return to the community soon.

The fact that this tenant's possessions remain in the unit does not prevent your right to assert abandonment if you have a reasonable belief of abandonment. In addition to these steps, you are also required to send the tenant a written Notice of Belief of Abandonment, in order to provide him an opportunity to pay the rent due and to prove that he has not in fact abandoned the property. The required content is set forth in Section 1951.3. The notice includes a method to dispose of the tenant's property left in the unit.

The notice must be personally delivered or mailed to the tenant at his last know address. You might check with your local sheriff to see if this tenant is in the local jail and if there is a method to deliver mail there. In many jurisdictions, the deputies will serve the notice on an inmate. If you can't locate this tenant in any jail, and there is no other address known to you, you can send the notice to the apartment, since that would become the "last known address."

Once you mail the notice, you must wait 18 days. If the tenant fails to respond, you can then re-take legal possession of the unit without going to court. Once you have a reasonable belief of abandonment, you can physically enter the unit pursuant to Civil Code Section 1954 to protect your rental property, before the 18 days have passed, but you risk liability if you turn out to be wrong.

As an alternative to this process, you can follow the normal eviction procedure, starting with a 3-day notice to pay rent or quit. That approach is safer since you don't have to prove abandonment or assume the risk of being wrong, but requires the time and expense of filing an eviction case in the court.

Q- I have been a month-to-month tenant in my current community for a little over two years. Last month I was surprised to receive a 60-day notice of termination from my landlord. I was hurt, but I knew he had the right to do this. Now he tells me that he will be having workers in my unit during the rest of my 60-day notice period to remodel the kitchen and bathroom. I know that ordinarily I would still need to pay rent through the entire 60-day period, but why should I pay rent if I am being disrupted by this construction?

A- Your understanding about the usual duty to pay rent through the end of the notice period is correct. A tenant who wants to avoid paying rent for the full duration a 60-day notice can always give a 30-day notice to move, limiting the further rent payment to 30 days instead of 60.

However, a tenant's duty to continue to pay rent is based on the ability to continue to occupy and utilize the rental premises. The law provides every tenant with a right to "quiet enjoyment" and "habitability." This means the right to fully utilize the premises, in peace and quiet and have full use of utilities and facilities. You cannot prevent the landlord from starting to remodel before your move, but if you will be subjected to substantial disruption due to the remodeling, your right to quiet enjoyment will be violated.

A violation of this right should entitle you to a rebate of your rent payments either in whole or in part, depending on how extensive the remodeling will be. This situation is an excellent subject for mediation because you could explore a mutual resolution. For example, you might agree to allow your landlord to conduct the remodeling in exchange for an agreement to allow you to move early without paying rent, or perhaps you could reach an agreement on hotel or other alternative accommodations during the remodeling.


Q- I am the mom of a disabled teenager. My son uses crutches and other mobility aids. I'm looking to relocate somewhere closer to his school, but I'm having trouble finding a handicap-accessible unit that meets our needs. Are there any laws that require landlords to create handicap-accessible units for disabled tenants?

A- Under the fair-housing laws, multi-family complexes with four or more units that were built for first occupancy after March 13, 1991 must meet certain accessibility guidelines. For example, units must have reinforced walls for grab bars and doors must be accessible and usable by individuals with disabilities.

Tenants seeking accessible units can find help from a website maintained by the National Apartment Association (NA), which tenants can use to search for accessible housing. The website is www.accessibleapartments.org and is free for both tenants and landlords wishing to list their units.

Alternatively, you can make modifications to any unit yourself with proof of your son's disability, but at your own expense and you could be required to remove the modifications when you vacate, if the landlord requires removal.


Q- I have been searching for available apartments online and with my budget, it looks like I can only afford to rent an apartment with a roommate. However, I've been seeing a lot of ads for roommates that state "male roommate preferred." Is this legal? 

A- Yes, this is legal. Federal fair-housing laws prohibit discriminatory advertising in all housing regardless of the size of the property. However, in shared living situations or roommate situations where tenants will be sharing bathrooms and kitchens as a common area, expressing a preference based on gender in order to maintain a same-sex household is allowed.

Furthermore, in California, the decision made by a housing provider in a roommate situation is not covered by fair- housing law. This means that persons looking for roommates can state their gender preference, and make their rental decision on any criteria they desire to use.


Q-I am a landlord who currently rents to older adults in a very quiet neighborhood. Right now, I have a vacancy listed. I have had a few prospects for potential tenants but so far the people that have come to see the unit are much younger families with young children.

I am concerned that they will disrupt the atmosphere since it is a much older population that lives here and I just want to keep everyone happy. I also don't think that this place would suit families with children as well since there are not many kids in the neighborhood. Do I have to rent to families with children?

A- Generally, a landlord cannot refuse to rent to an applicant because there are children in the family. Moreover, the requirements for rental and the terms and conditions must be the same for families with children as for any other applicant or tenant.

For example, a landlord cannot decide to rent units on only one side of a complex to families with children in order to avoid tensions with other tenants who desire quiet. Additionally, a landlord cannot deny second- or third-floor apartments to families with young children, even when their intention is to prevent possible injury.

The one exception to this rule involves housing that has been specifically designated as housing for senior citizens (persons 55 and older under some statutes or 62 and older under others). To qualify as "senior housing", a housing provider must meet specific requirements that may include a minimum number of units, age-based residency limits and design features.


Q- The management at the senior citizens apartment community where I live is trying to prevent my 47-year-old son from staying with me. They said they have a rule that no resident can be under 48 years old, which seems very suspicious to me. My son is disabled and I can no longer continue paying for the assisted-living center where he is currently staying. His caregivers and I both believe it would be in his best interests if he were to stay with me.

Management also has said that a couple of my neighbors have complained that he engaged in offensive acts while visiting. The allegations are simply not true and his medical providers agree with me that he would not have committed these alleged offenses. Is there any way I can require management to allow my son to stay with me?

A- Part of the answer depends on which type of senior housing you have. If the center is authorized for those aged 62 and older, then all the residents in the facility must be at least that age or older. If the senior complex is authorized for seniors who are 55 or older, only one of the residents in each unit need meet the age requirement. If your facility is a 55+ complex, and your son's doctors and caretakers believe it is in his best interests to live with you, then you are entitled to have him stay with you as long as his behavior does not interfere with the rights of other tenants.

To not allow him to live with you in that case would be considered discrimination based on his age. If the allegations against your son are not reasonably founded, then complaints from a couple of neighbors should not prevent him from staying. Management can restrict his access if he has a criminal history relevant to his behavior in the community, or there is firm evidence that while visiting he has engaged in behavior that is criminal.

If his behavior has unreasonably interfered with the quiet enjoyment of the other tenants, known as a "nuisance," or has violated community rules, then management also has a right to limit his access, unless you can agree on conditions that will protect the rights of the other tenants. You might contact your local mediation program so that you and your son and management can mutually agree to basic behavior ground rules for your son.


Q- Our landlord has recently stopped depositing our rent checks. For the past five months she has received the checks, verbally acknowledged she had them, but said she was too busy to deposit them. When we ask for a receipt after noticing that the checks were not deposited, she ignored us. What is the best way to deal with this situation without antagonizing the landlord?

A- Legally, your only responsibility is to "tender" the rent payment. Some rental agreements specify how payment is to be made and you need to document that you followed that procedure. If no procedure is specified, you can use any reasonable method.

If you mail the payment, request a "proof of mailing" from the post office, which will cost you about 95 cents. Certified mail is not necessary unless required by the rental agreement, but it does document that you tried to tender the rent.

If you hand the check to the landlord personally, it would be a good idea to create a simple receipt form and ask her to sign at the same time you hand her the check. Once you have properly tendered the rent, your obligation ends and you should not be responsible for the consequences of her failure to deposit the money.











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@projsen.org.