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Palo Alto Weekly

Real Estate - March 1, 2013


Can a landlord refuse to rent to a convicted felon?

by edited Martin Eichner

Q I started drinking alcohol and using drugs when I was in high school, and I kept it up until recently. I didn't think I had a problem because I have maintained good grades in school and held a steady job. Last year, I was stopped by the police for driving under the influence. When the police searched my car, they found a pipe and a backpack with crack cocaine. I pled guilty to felony drug possession.

As part of my sentence, I completed a government-mandated drug-rehabilitation program, and I have been clean since then. The expenses from the case meant I needed to find a new, cheaper apartment. However, most of the property managers for communities where I apply tell me they can't rent to me because their policies prohibit them from renting to applicants with felony convictions. Is there anything I can do?

A The federal Fair Housing Act prohibits discrimination in housing on the basis of disability. A disability is defined as a physical or mental impairment that substantially limits one or more of person's "major life activities." This definition covers persons recovering from alcoholism or drug addiction.

Individuals like yourself who have successfully completed a drug-treatment program are protected under the disability provisions of the Fair Housing Act. This means that a potential landlord cannot refuse to rent to you solely because of a history of drug addiction, since you are currently in recovery. Your history of abusing drugs in the past may not be an accurate measure of your current ability to be a good tenant.

However, the law does not protect persons who are currently using illegal drugs or persons that cause a direct threat to the health and safety concerns for other residents. Your challenge is that you have a record of criminal activity associated with your prior drug use and that resulted in a criminal conviction. Landlords have a duty to provide peaceful enjoyment of their premises to their tenants and avoid illegal activity, particularly use of illegal drugs, on their property. From this perspective, your recent conviction raises a reasonable suspicion that you might engage in similar activities, which could permit landlords to deny your application even if they ignore your history of drug addiction.

One suggestion might be to live in an environment that won't currently screen you for a criminal record or in a residential setting established for recovering drug addicts. In that type of housing, you could establish a history of law-abiding behavior. Once sufficient time passes, you could ask housing providers to view your conviction as "ancient history" that shouldn't raise a concern about future violations.

Q I rented my townhouse for several years to the same tenant. At the beginning of this year, she gave notice that she was vacating. I knew I was required to deal with the security deposit I was holding for her, so I offered her a joint inspection on the day she vacated, which she accepted.

When we looked at the house, I saw that the carpets had not been cleaned and that there were holes in the walls, probably from pictures being hung. I decided to return half the deposit and kept the rest to compensate for the cost of cleaning and repairing the halls. I sent her an explanation within the 21-day period required by the security-deposit statute, and I provided her with receipts to justify the costs.

I thought I had done everything correctly, but now I have a letter from her threatening to sue me in small claims court because we didn't have a walk-through before she vacated. Did I do anything wrong?

A It sounds like your former tenant is asserting that you violated the "pre-departure" inspection requirements outlined in California Civil Code Section 1950.5(f). This procedure was added to the security-deposit statute eight years ago. Its purpose was to give tenants an opportunity to preserve their security deposits by correcting faulty conditions before they vacate.

Although it is also a good idea to have a joint inspection at the time of move-out, by that date the tenant no longer has an opportunity to make repairs or carry out additional cleaning. The pre-departure rules in subsection f required you to give your tenant written notification of her right to a joint pre-departure inspection approximately two weeks prior to the date she vacated. Unless the tenant waives the right to this inspection, you should have scheduled a mutually convenient date, or given 48-hours written notice of the date for the inspection, which you should have conducted regardless of whether the tenant was present.

At the conclusion of the inspection, you were required to give the tenant a written itemization of every defect that you were going to charge against the deposit, such as unclean carpets and holes in the wall. You were also required to give the tenant a copy of the actual language from Section 1950.5(f)(1) through (4), so that the tenant would know the exact procedures and understand her right to correct the defects prior to vacating.

The only exceptions to your duty to list all potential deductions would have been hidden damage, such as a hole in the carpet covered by a sofa, or subsequent damage such as a hole in the wall later made by the movers. The pre-departure rules do not apply to an eviction pursuant to a three-notice or some other departure not resulting from a normal termination of the tenancy.

Since you didn't comply with this procedure, your tenant has the right to argue in small claims that she could have fixed the deficiencies if she had been advised her security deposit was in danger. Rather than face the uncertainty of small claims, as well as the investment in time and energy, you might contact your local community mediation program to pursue a mediated settlement.

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


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