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Palo Alto Weekly

Real Estate - July 23, 2010


Can a tenant take back a termination notice?

by Martin Eichner

Q I have been living in my current apartment for several years. I made an offer on a condo last month that I thought had been accepted, so I gave my 30-days written notice to my current apartment manager.

Now, three weeks later, I learned that I did not qualify to buy the condo, which means I don't want to leave my apartment. I told the manager that I wanted to withdraw my notice, but she said no. Since the apartment management hasn't given me her own termination notice, why can't I withdraw my notice?

A Unfortunately, a tenant's written notice of termination is just as binding as a termination notice served by a landlord. The tenant must vacate within the period of time stated in his or her notice, or be subject to an eviction suit, known as an unlawful detainer.

Furthermore, contrary to the common misconception, a tenant giving a notice of termination is still responsible for paying the rent for the days covered by the notice. A tenant cannot use his or her security deposit as a credit toward the rent due, unless the rental agreement specifically designates "last month's rent" as an amount collected separate from the security deposit.

Of course, you and your property manager could mutually agree to withdraw your termination notice, but that agreement would be subject to negotiation with the potential of making changes in the prior terms of the rental agreement. Right now you have indicated that the property manager was not willing to cancel your notice, but you could offer some type of inducement such as a higher rent, if remaining in the apartment is crucial to you.

If you are able to reach a mutual agreement to continue your tenancy, make sure it is documented in writing and signed and dated by both parties, prior to the end of your current notice to move.

Q I own a couple of houses that I rent out for extra income. Unfortunately, these houses are not in the best part of our town. I have a tenant living in one of the houses who must be dealing drugs or doing something else illegal because the police have arrested him several times.

Every time he is arrested he makes bail and returns to the house in a day or so. Even though he pays the rent on time, I realize that I can't continue to allow him to live in my house.

My plan is to change the locks the next time he is arrested, so that he can't come back into the house. I know that I need to protect his property inside the house if I do this, but my plan is to move his belongings into a storage locker.

I can't afford a lawyer to file an eviction case, so this is my only alternative. Will I be OK if I do this?

A Although your frustration and concern sounds very legitimate, your plan would almost certainly be viewed as a "constructive eviction" specifically prohibited by California Civil Code Section 789.3.

Changing the locks on a rental property along with other similar acts such as cutting off utilities, blocking physical access, or removing the doors are all acts prohibited by this statute, which imposes significant penalties for a violation. A landlord who engages in a constructive eviction may be liable to the tenant for a penalty of up to $100 for each day of the lockout, along with the tenant's actual damages such as replacement lodging and attorney's fees.

Regardless of the misbehavior or rental agreement violations on the part of a tenant, California law requires a landlord to utilize the unlawful detainer civil court action remedy to remove him. For landlords who do not have significant financial resources, this remedy may seem cumbersome and expensive, but this policy is firmly established.

If you can document this tenant's criminal activity with police reports, public court records or other evidence, you have the option of giving him an unconditional three-day notice to quit the property. If he does not voluntarily leave, the unlawful detainer can be filed on the fourth day, but the full court process must still be followed.

The only other possible option for you would occur in the event this tenant is actually sentenced to a significant period of incarceration. In that case, and if he stops paying the rent while in custody, you can treat the property as having been abandoned. Without pursuing the unlawful detainer process, you can give proper notice of abandonment, and retake actual possession of the house, as long as you follow the rules for protection of his personal property in the house.

Q I did a good deed about a year ago. I found out that a casual friend from my old job had been laid off and had become homeless. I let him move into my apartment's spare bedroom, free of charge.

Unfortunately, I cannot continue this act of charity because I want my privacy back. I have asked him to leave but he doesn't appear to be making any effort to do so.

A real estate agent says my friend is a trespasser, since we have no rental agreement or landlord-tenant relationship. She says I can call the police to have him removed or I can change the locks on a day when he is away from the unit.

I don't want to get in any trouble, so I am writing to ask your opinion about what my legal rights are here.

A Unfortunately, this is where we say that no good deed goes unpunished. You allowed this person to move into your property with your permission, so he is not a trespasser.

Actually, there is a specific term for an adult living in a rental property without paying rent or being party to a rental agreement, verbal or written. The term that applies is "tenant at will."

Since the law regards him as a tenant, he cannot be locked out or forcibly removed. Your only legal avenue is to give him a written notice of termination of tenancy. If he doesn't leave voluntarily after receiving written notice, you can file an eviction lawsuit, known as an unlawful detainer, in court.

Since he is a tenant at will, you need only give him a 30-day written notice to vacate, rather than the 60-day notice that would be applicable to a traditional month-to-month tenancy of more than a year. If an unlawful detainer action becomes necessary, you should seriously consider hiring an attorney who specializes in evictions. Although the result will be further expense for you, we have found that very few inexperienced "landlords" can successfully prosecute an unlawful detainer action without legal counsel. There are a number of technical requirements that must be carefully followed, and a mistake such as using the wrong language in the notice to terminate could result in a judgment in the tenant's favor.

Q I live in the apartment next to a very nice lady. I know she is blind and has a seeing-eye guide dog living with her.

I like this lady but I don't like her dog. He barks for what seems to be hours at a time, especially late at night. This barking is really upsetting for me because I am losing a lot of sleep. I complained to our manager but he says the lady is entitled to have a guide dog. He says he can't do anything about the dog's behavior because he would be sued for discrimination if he interfered with this lady's ability to have her guide dog.

Is there anything I can do? Don't I have any rights in this type of situation?

A Your manager correctly understands that the fair housing laws protect tenants who have disabilities and who need service animals such as guide dogs to reasonably accommodate their disabilities. Housing providers must allow disabled tenants to utilize service animals, even if they have a no-pets policy for their property.

However, any accommodation must be "reasonable." The accommodation cannot result in an unreasonable disruption of the housing provider's business. If the dog's behavior is causing a nuisance to other tenants such as you, the provider is not obligated to ignore that behavior.

We suggest that you contact your local fair housing or mediation program to seek assistance from an outside party to explain the application of the reasonable accommodation principles to the manager in this situation. An outside agency can also bring all the affected parties together to find a solution that works for everyone, such as obtaining behavior training for the dog.

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


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