March 11, 2005

Back to the Table of Contents Page

Back to the Voice Home Page

Classifieds

Publication Date: Friday, March 11, 2005

Rent Watch

A: California Civil Code Section 1950.5 states how a security deposit is to be settled. We believe it is very unlikely that your personal travel plans would be viewed as a valid excuse for you to miss the 21-day requirement, although ultimately that decision would be up to a small claims court judge.

To avoid possible legal action during this time that could result in a judgment of three times the amount of a deposit, you could hire a management firm to handle your rental affairs while you are out of the country. If you decide to do this, send each of your tenants a notice with the management company's name, address, telephone number, contact person, as well as the time period this arrangement will be in effect.

If you are not willing to hire a management firm, you should make other arrangements to meet your obligations under Section 1950.5, such as giving legal authority to a family member for that time period.

Q: My young son has been diagnosed with severe depression. His doctor has recommended that we get a small cat or dog as a companion for him. My rental agreement says pets are not allowed in the complex. I want to do the best for my son, but I'm unable to move. Can I get a pet anyway without being evicted?

A: Yes, provided you have a medical, psychological or social services provider who can verify that a companion animal is needed to assist your son with his depression. The "no pets" rule does not apply when an animal lives with a family for reasons supported by a health care professional.

You will, of course, be required to pick up after the animal as well as be responsible for any damage the animal may cause. Also, a leash for a dog is usually required. No additional fees or deposit can be charged for a service animal.

In order to exercise this right, you must request that the rule be waived as an accommodation for your son's disability. Your landlord can ask for verification that the companion animal is medically or psychologically necessary to allow your son equal access to housing -- in other words, having a companion animal will assist him in some way with the normal activities of life, like sleeping, walking, eating, etc.

The landlord cannot ask personal questions about the nature of your son's disability. He or she is not entitled to know that your son suffers from depression, if you do not wish to divulge that fact. The medical provider's statement is sufficient to require the landlord to make some "reasonable accommodation" for your son's disability by waiving the usual rules or policies.

Q: I'm selling a large apartment complex that I've owned for a long time. The new owners have told me that in three months they plan to move into the only four-bedroom unit in the complex. Am I legally obligated to tell the current tenants that they will be getting a notice to move?

A: There is no legal requirement for you to notify the tenants of any future plans the new owners may have. For all you know, the new owners' plans may change and they won't want this unit.

Civil Code Section 1950.5(h)(1) requires you to notify your tenants of the date the property transferred to the new owners along with either their or their agent's name, address and telephone number. This is required because the buyers take possession of the property subject to the existing rental agreements and leases. The form Notice of Sale of Real Property and of Transfer of Security Deposit Balance also includes an area to detail disposition or transfer of existing security deposits.

If the current occupants of the desired unit are on a lease, the new owners will have to wait until the lease expires to terminate this tenancy or honor the required advance notice time of non-renewal listed in the lease. The lease can be terminated early only if the lease itself contains a specific provision that terminates it upon the sale of the property.

Q: My brother visits my apartment on the weekends. The manager sent me a notice saying that she suspects my brother has a record of drug use and is not allowed on the property. The truth is he did have a drug problem but has been clean and sober for over seven years. Can the manager keep my brother from visiting me?

A: From the perspective of fair-housing laws, it may be discriminatory to prohibit your brother from visiting. If your landlord has actual, recent experience of your brother's negative behavior on the property, the landlord may be able to exclude your brother, especially if he obtains a protection order. However, it would be discriminatory for the manager to keep him from visiting because of an assumption that he is using drugs, based only on his past record.

The laws against disability discrimination in housing protect rehabilitated substance abusers from being treated differently than others. We suggest that you discuss this matter with your landlord to determine whether there is a non-discriminatory reason for excluding your brother.

If you are not satisfied, both you and your brother would have standing to bring a complaint for a fair-housing violation. You can file a complaint by calling your local fair housing agency, the U.S. Department of Housing and Urban Development (HUD) Fair Housing Enforcement Office, or the California Department of Fair Employment and Housing (DFEH).

Q: The new manager at my apartment complex called me to say that anyone who uses the computer room facilities must be at least six years old. He said my 4-year old daughter could no longer be in the room. My daughter has been using the computer room for about a year and sometimes I'm with her and sometimes I'm not. Can the new manager enforce this rule against my daughter?

A: State law prohibits discrimination in housing and housing-related services based on age alone, and both state and federal laws prohibit house rules that overly restrict children's behavior.

Everyone is subject to basic health and safety rules regardless of age. The age discrimination prohibition is intended to allow everyone over the age of 18 to have equal access to housing opportunities.

A staff member of the California Department of Fair Employment and Housing (DFEH) has offered the opinion that the age discrimination provisions do not protect you and your young computer user. The "familial status" protections under the law require scrutiny of rules, which specifically target children.

Generally, they must be based on health and safety codes (such as pool rules which require supervision for children under 14). The 6-year old age minimum for computer use appears to be justified because management has a right to assume that a younger child might not be able to use the computer safely.

Project Sentinel suggests that you have a discussion with your new manager about your daughter's ability to use the computer. If the manager is concerned about your 4-year-old being left in the computer room, perhaps you could offer assurances that you or a designated baby-sitter will always be with her. This may or may not satisfy the manager's concerns. If not, your daughter may have to find somewhere else to use a computer until she's 6.

Q: There are several vacancies in the apartment complex I own, and I am having a short-term cash flow problem. I asked my tenants to pay the rent early but some have refused. Don't I have the right to ask for early payment for a short time?

A: Unless a tenant agrees voluntarily to honor your verbal request, there is no state law that allows for changing the rent due date on an uneven or unpredictable basis. The only way you can change the date is with a written 30-Day Change of Terms Notice that details the new due date. The effort of pro-rating the current month's rent to a lesser amount and waiting 30 days to enact the new due date may not be worth the effort for a short-term problem.

Q: The property owner of the complex I manage wants me to keep current personal information for the tenants. She wants to know each time a tenant changes employment, telephone number, salary, etc. Some tenants are not cooperating. Do you have any suggestions on what I should do?

A: Once a perspective tenant's application is accepted and a month-to-month agreement or lease is signed, tenants who meet their rental obligations are not obligated to reveal continuing changes to their personal information.

Continually asking for personal information may be excessive and could be considered an invasion of privacy. Telephone numbers and employment can change often. As long as a tenant does not create a problem or violate a condition of their tenancy, there is little use for this administrative effort.

On the flip side, Civil Code §1962 does require a tenant to be informed of either the property owner's name, address and telephone number or that of their agent. This information must be included in the rental/lease agreement or posted at a conspicuous place in the building. This information is also used to declare who is authorized to receive legal notices for the owner.

Q: My mother has had surgery for a broken hip. She requires a full-time caregiver for four months in order to recover from this condition.

The resident manager of the apartment complex where she lives says that no other occupant, other than my mother, is allowed to stay overnight in the apartment. Can the manager refuse to allow the caregiver?

A: No. Even if this is a valid rule -- and there is a big question about whether it is legal for the manager to restrict guests from visiting overnight -- your mother's situation is special.

In this case, the manager is required to recognize her needs. Under California fair housing laws, persons with disabilities, even temporary ones, have some special rights. These special rights cover your mother's temporary disability. She can request a "reasonable accommodation" for her disability and the manager should waive the rule.

The manager may ask for a medical provider's statement to verify that a full-time caregiver is needed for a certain amount of time. Once this verification is obtained, the manager must allow the caregiver to stay overnight, or provide evidence that this would somehow be overly burdensome to the housing provider.

Providing reasonable accommodation for your mother does not mean the manager will be required to waive the rules for other tenants. Only persons with disabilities are entitled to special treatment, and only as needed for their medical reasons.

Q: The house I recently rented has a fireplace. There is a lot of black soot covering the brick facade, and I think the chimney needs cleaning. The fireplace is our only source of heat but when I requested the landlord to schedule a cleaning, he said no. What can I do?

A: California law requires a landlord to provide habitable premises. That requirement includes adequate heat.

According to Section 701 (a) of the Uniform Housing Code for the State of California, heating facilities must be capable of maintaining a room temperature of 70 degrees at a point three feet above the floor in all habitable rooms. Therefore, it would seem that a fireplace couldn't be the only source of heat.

If by chance the fireplace meets this heating requirement and can be designated as a valid heat source, then Civil Code Section1941.1 may require the fireplace be cleaned. This statute addresses a number of items that are required for a property to be considered habitable including safety factors.

Here are your options: 1) contact your landlord, in writing, and request a cleaning based on 1941.1, or 2) contact your local housing inspector or officer to determine the correct status of the fireplace.

If the landlord continues to decline the cleaning request after a reasonable period of time, not to exceed 30 days, notify the landlord that you will pay for the cleaning and deduct the cost from the next month's rent as long as the cost does not exceed one month's rent.

In this case, the landlord may disagree with you and serve a 3-day pay rent or quit notice that could result in the negative experience of defending yourself against an unlawful detainer lawsuit. A better option for you is to discuss the matter with the housing mediation program for your area.

Q: What is the rule about notifying prospective tenants when a previous occupant dies in a unit? The manager of the apartment complex I own is not sure what he is obligated to tell applicants.

A: California Civil Code Section 1710.2 covers your question. In general, the code states that an owner of real property or his or her agent, is not obligated to disclose a death, or the manner of death, of a previous occupant if the death occurred more than three years prior to the date the prospective tenant offers to rent the unit.

If the death occurred less than three years to the prospective tenant's application, the death must be disclosed, unless it was due to AIDS. Under no circumstances, regardless of the time period, can a property owner or their agent misrepresent the fact that a death, or manner of death, occurred if directly asked by a prospective tenant. This even includes if the manner of death was from AIDS.

Q: My 17-year old daughter has a full-time job and also goes to a school located in another county. The school does not allow students to stay on the weekends, so she comes home each Friday evening after her work.

The drive is getting to be too much for her. She wants to get an apartment near school, but several landlords have refused her application saying she is too young. Since she completely supports herself on her income, she could afford the rent. Is it legal for landlords to refuse her applications based on age?

A: Most likely the answer is yes. Age discrimination in housing transactions is prohibited in California, but it only applies to persons over the age of 18.

In general, persons under 18 do not have the legal capacity to sign a contract. The law does not recognize them as being bound by the terms of a contract in the same way as an adult, so a landlord is not required to enter into a contract with someone under 18.

If your daughter were legally emancipated (through a court order stating that she was no longer under your guardianship, and was capable of supporting herself), the court might declare her to be competent to sign a lease or rental agreement. In this case, landlords could not use her age alone as a reason to deny her application. They would have to apply the same credit, reference and income guidelines, which they apply to adult applicants.

The other possibility is that you might convince a landlord to allow you to sign your daughter's lease or rental agreement, and be legally obligated under its terms. If your daughter didn't pay the rent, the landlord could hold you liable for payment. Additionally, if your daughter were evicted through the court process for any reason, the eviction would appear on your credit record as well as hers. If you are willing to accept these consequences, you could pursue the option of being a co-signer for your daughter.

Q: My roommate and I have separate rental agreements for the apartment we rent, but we share the utilities and rent equally. My roommate wants to move her boyfriend into the apartment. The landlord has agreed to add him to her rental agreement, but I don't want the boyfriend living here. Can the landlord allow anyone to move into my apartment without my consent?

A: The key phrase in your question is "separate rental agreements." If you both were named on the same rental agreement, each of you would have equal rights. For example, neither of you could compel the other to move or force any changes of the tenancy without the approval of the other.

However, since each of you has a separate rental agreement, each of you is free to make changes to your personal tenancy, such as bring in a new occupant. It is unusual for roommates to have separate agreements much like a boarding house.

Q: The city in which I live in has an ordinance that allows three pets (of any combination) per household. I currently have two dogs and want to get a cat. The manager of my apartment building says I'm not allowed to have more than the limit of two pets stated in my rental agreement. I disagree and say the number allowed by the city ordinance should be honored. Am I right?

A: The resident manager is within his or her right to restrict the number of pets to the number listed in your rental agreement. Except for service animals (such as seeing-eye dogs) or medically required companion animals, the number of animals permitted on either private or rental property is at the discretion of the property owner.

Q: I manage a large apartment building. About 10 families in the building want to join the citywide garage sale and hold their own sale in the common area of the complex. The property owner says no because she feels there are safety issues. The tenants disagree. They say, "If the city allows garage sales, why can't they have one?"

A: Even though your city allows residents to conduct public garage sales, your property owner is not obligated to allow a similar activity on his private property. Perhaps you could help the tenants put together a plan that would eliminate any safety or health concerns the property owner may have.

Your local mediation program is an ideal resource to work out these concerns. If this is not successful, the tenants could contact the organizer of the city garage sale to get names of private property neighbors who may agree to let them join them. Also, nearby churches may be willing to lend their parking lot to you, perhaps for a donation from the sale proceeds.
Question for Rent Watch? Call Project Sentinel at (408) 720-9888

E-mail a friend a link to this story.