Landlord/Tenant Relations

Purpose of Presentation

Introduce/review L/ T concepts. Why?

Housing and L/T issues often drive the

majority of code enforcement action.

L/T law & Civil Code are inextricably

intertwined with State Housing Law

Understanding the mutual duties &

obligations of L's & T's helps achieve

safe, occupied, productive housing.

Presenter

Leonard Powell, J.D.

Code Enforcement Manager, City of

Fremont

CACEO Boardmember, Region 2

Over 20 years of regulatory enforcement.

Over 10 years of Landlording

Never missed out on a day’s worth of

rent $

Judge for CAA Greater East Bay GEMM

Awards.

Expert witness for both L's and T's.

Disclaimer

The information provided and presented is this session is educational in nature, and not meant to be the kind of legal advice that you would pay a licensed attorney for

Always check with your agency’s legal counsel before taking any actions that can affect your agency’s liability or exposure to a lawsuit

Public employee actions should be driven by the agency’s counsel and management.

Issue

Housing is a major part of everybody’s

lives. Almost everybody is, was, or

will be a tenant

Quality of life

Budget and livlihood

Health and Safety

Major source of dispute

L/T disputes ripen into calls to us for

inspection services.

Questions:

What is, and why is there a relationship between H&S 17920.3 and CCC 1941.1?

Is the law moving more favorable to L's or T's?

What is the trend, and why? Does a lodger (rents room) have T’s rights? What is the difference between habitability

and tenantability? What are T’s remedies for L’s breach? What are L’s remedies for T’s breach? Differences between

Residential/Commercial?

Dichotomies

Contract vs. Conveyance

Residential vs. Commercial

Desire to provide habitable shelter vs

Desire to regulate evictions from

homes

Profit maximization vs. safe,

affordable housing.

Traditionally

L had minimal duties

Only needed to provided the right to possession, not actual possession

T's needed to oust trespassers

Duty to not interfere with possession

No duty to maintain, repair, or make safe

Generosity of the law to the landlord at common law resulted in great abuse by landlords.

Change in the law

Courts have a duty to reappraise old

doctrines in the light of the facts and

values of contemporary life. The

continued vitality of the common law .

. . Depends upon its ability to reflect

contemporary community values and

ethics.

Conveyance or contract?

Modernly, mix of property law, and contract law

Property law: (historical) Conveyance of land (estate). Fragmentation of ownership: present and future possessory interests, defeasible estates, future interests, reversions, Possibility of reverter, right of re-entry, accountability and contribution among co-tenants, ouster

Contract law: specific terms, mutual obligations, the breach of which triggers a remedy at law.

A housing lease is the purchase of space and services.

Javins v 1st National Realty Corp

D.C. Cir. 1970)

Issue: Do housing code violations that

arise during the term of a lease have

any effect on T’s obligation to pay

rent?

Javins v 1st National Realty Corp

F.2d 1071 D.C. Cir. 1970 Prior to decision, claims of uninhabitable

conditions were inadmissible when proffered as a defense to eviction for non-payment of rent.

Decision: reversed. “A warranty of habitability, measured by the standards set out by the Housing Regs. For D.C., is implied by operation of law into leases of urban dwelling units covered by those regs, and that breach of this warranty gives rise to the usual remedies for breach of contract”

Facts in Javins:

Three separate written leases in complex

L sued for eviction for non-payment of rent

T’s admitted non-payment, alleged violations of Housing Regulations as equitable defense, or

Claim of recoupment or set-off in an amount equal to rent claim.

Alleged 1500 violations affected T’s, directly or indirectly, establishing a course of conduct to violate Regs and damage T’s.

Rationale in Javins:

Old rule was based on certain factual

assumptions which are no longer true

Consumer protection cases require

the old rule be abandoned to bring

residential L/T law into harmony with

the principles of those cases

The nature of today’s urban housing

market dictates abandonment of the

old rule.

Rationale in Javins:

The old rule absolving lessor of all

obligation to repair is from the early

Middle Ages

Then, whatever small living structure

included in larger leaseholds, and

tenant farmers were capable or

making repairs themselves

Rent was still due even if the structure

was destroyed.

Rationale in Javins:

When American city dwellers, both rich and poor, seek “shelter” today, they seek a well known package of goods and services – a package which includes not merely walls and ceilings but also adequate heat, light and ventilation, serviceable plumbing facilities, secure windows and doors, roper sanitation, and proper maintenance . . .

Leases of urban dwelling units should be interpreted and constructed like any other contract.

Rationale in Javins:

A Buyer of goods and services in an industrialized society must rely on the skill and honest of the supplier

Courts protect the legitimate expectation of the buyer, and hold seller responsible for the quality of goods and services through the implied warranties of fitness and merchantability

No special agreement is needed to hold a merchant responsible for his goods being fit for the ordinary purposes for which they are used, and to be of at least fair and average quality.

Green v. Superior Court, (1974)

Supreme Ct of CA, 10 Cal.3d

616

Overruled common law practices that established a landlord had no obligation to maintain residential premises

L/T relationship includes an implied warrant of habitability

Rental dwellings must be within "substantial compliance" of local housing and building codes, must be maintained in a condition that meets "basic living requirements," but need not be attractive or perfect.

Breach of warranty may be a defense to unlawful detainer action.

Under certain circumstances the tenant has the right to quit the lease or continue in the lease with an adjustment of rent, sometimes down to zero, if the landlord is found to have committed a gross breach of warranty.

Decision in Green:

“In our judgment, the old no-repair rule

cannot coexist with obligations

imposed on the L by a typical model

housing code, and must be

abandoned in favor of an implied

warranty of habitability”

Holdings in Green:

The housing code must be read into housing contracts

Duties imposed by the Housing Regulations may not be waived or shifted by agreement for the duties specifically placed on the lessor.

Criminal penalties are provided if the duties are ignored.

The Housing Regulations imply a warranty of habitability, measured by the standards which they set out, into leases of all housing that they cover.

Green - Habitability; defined:

Must be fit for occupation by humans

Substantially comply with state/local

building and health codes that

materially affect T’s health and safety.

Minor violations, which standing alone

do not affect habitability, are not a

breach of IWH.

Relationship between the Green

Decision and the Housing

Codes:

The Housing code altered the

common law rule and imposed a duty

to repair upon the L

A right of action accrued to a T injured

by the L’s breach of this duty.

Requirements of Tenantability

A dwelling shall be deemed tenantable for purposes of CCC 1941 if it substantially lacks any of the following:

Effective waterproofing/weather protection

Plumbing/gas facilities (that conformed to applicable law in effect at the time of installation, maintained in good working order)

Water supply capable of producing hot and cold running water to appropriate fixtures, connected to a sewage disposal system.

Requirements of Tenantability

Heating facilities Electrical lighting, with wiring and

electrical equipment Building, grounds, and appurtenances at

the time of rental agreement, that is Clean, sanitary, and free from all

accumulations of debris, filth, rubbish, garbage, rodents, and vermin.

Adequate trash/garbage receptacles Floors, stairways, and railings in good

repair. Locking mail receptacle for each unit.

Additional State

Requirements May be substandard due to:

Lead hazards that endanger

occupants or the public

Structural hazards

Inadequate sanitation

Nuisance that substantially endangers

health, life, safety, property, or welfare

of occupants or public. (CC 1941.1,

H&S 17920.3, 17920.10).

Additional State

Requirements A working toilet, wash basin, tub or

shower, and a ventilated room which has privacy

A non-absorbent kitchen sink

Natural lighting in every habitable room, with windows that open halfway, or other vent

Exits leading to street or hallway

Garages/storage areas free from combustibles.

Additional State

Requirements: Operable dead bold lock on main

entry door, and operable locks/devices

on windows

Working smoke/CO detectors

Locking mailbox for each unit, USPS

standards

GFCI for pools, anti-suction devices

for wading pools

At least one inside phone jack.

Additional State

Requirements: Presence of mold conditions that

affects livability or H&S

Contamination from meth after being

notified by local health officer.

Landlord's Obligations

To deliver possession

To not interfere with right of exclusive use and possession (To protect quiet enjoyment)

To deliver it habitable, make timely repairs and keep safe (IWH)

To timely notify prior to entering

Honor lease obligations

Emerging issues: lead and mold.

T’s rights

Exclusive use and possession of the unit

Limits on required security deposit

Limits on L’s right to enter

Refund on security deposit, or accounting

To sue for L’s violation of lease or law

To repair serious defects and deduct costs

To withhold rent

Elements of IWH

Protection against retaliatory eviction

Tenant’s remedies

Repair and deduct

Abandonment: must substantially

breach IWH

Rent withholding

Lawsuit for Damages.

Tenant’s duties Pay thy rent

Perform all lease obligations

Keep clean and not commit waste (preserve premises)

Use gas, elec, plumbing fixtures properly

Inform L of any defects

Allow L opportunity to correct

Honor lease obligations

Take reasonable care of unit and common area

Repair damage from neglect or abuse

Repair damage from damage cause by owner family, guests, pets

Limit use of rooms for intended purposes.

Landlord’s remedies

Charge per lease agreement

Sue for damages

Eviction.

3 Day Notice

T failed to pay rent

T violates any provision of lease or

agreement

T materially damages property

T substantially interferes with other T’s

Domestic violence/sexual assault on

premises

Use premises for unlawful purpose.

Landlord’s liability

If T breaches in some minor way, L is

still responsible for correction

If T has substantially caused an

unsafe condition to occur, or has

substantially interfered with L’s ability

to repair, L does not need to repair the

condition.

If T has not performed required duties,

he can’t withhold rent or take action

against L for breach of IWH.

Required Repairs

T should notify LL by call AND letter

Specifically describe damage/defects

Date the letter and keep a copy

Best to either send certified with return

receipt, or deliver by personal service,

and ask for written receipt of delivery

(may ask party to sign/date T’s copy

as proof).

Agreements for Repairs

T may agree to maintain/repair for lower rent. Must me in good faith, have real reduction, T must have real ability, and should have a cap. L still liable for meeting code requirements

T may agree to maintain/repair amenities such as refrigerator, washer/dryer, pool, or other amenities that are not required by code. Enforceable under contract law; no L code liability for non-required items.

Tenant’s Remedy: Repair &

Deduct “Repair and deduct” limited to 1 mos.

rent (limited to substantial breach of IWH) T must not has caused/contributed T must have given notice T must give L reasonable time 30 days is normally reasonable, but it

depends T must keep receipts, should give L

written justification, and will be liable for non-payment if defect was not a significant breach.

T’s Remedy: Abandonment

T moves out of defective unit (limited to substantial breach of IWH) Repair cost need not exceed 1 mos. rent Notification and allowance periods req’d T excused from future rent payments T must not has caused/contributed Give written reason for moving out, and

completely move out, turn in keys Keep copy of notice and proof of service,

pics, and local agency inspector's report for defense.

T’s Remedy: Rent

Withholding Some or all of the rent for L’s failure to

correct serious defects that violate the IWH

Defects must be more serious than justification for other remedies, an actual threat to H&S. Examples:

Collapse/non-repair of ceiling

Continued rats, mice, cockroaches

Lack of heat

exposed faulty wiring

Illegally installed and dangerous stove

Rent Withholding: Continued

T need evidence for proof of breach

T must not has caused/contributed

Notification and allowance periods req’d

If no repairs, T may withhold some/all of rent, and continue until repairs are made

No set law on how much to withhold

Maybe % of usability, or diff. between what is provided, and fair market value in the defective condition.

T must save rent and not spend, expect to repay

Place unpaid rent in escrow, notify L, explain.

Rent Withholding: Risks

If found to not be justified, T faces

three-day notice to pay rent, or

eviction notice

At hearing, T will lose case if he can’t

prove L violated the IWH

If no lease, L may attempt retaliatory

eviction.

T’s Remedy: Lawsuit for

Damages Small claims court jurisdiction: up to

$7,500

May be remedy of first choice

T may be awarded actual damage,

plus “special damages” from $100 -

$5000 for costs incurred, such as

motel rooms, plus reasonable

attorney’s fees

Judge may order L to abate and

repair.

When can Landlord enter?

Emergency

After move-out or abandonment

To make necessary or agreed-upon repairs

To show to prospective T’s/purchasers

To conduct initial inspection before move out

Upon a court order

Initial & periodic waterbed installations.

How much notice is required?

Reasonable advance notice: 24 hours.

May only enter during reasonable

business hours

Notice must state date, time, &

purpose

Special rules to show to purchaser.

Landlord’s Method of Service of

Intent to Enter Personal delivery

Leaving with person of suitable

age/discretion

Leaving on or under entry door

Mail (At least 6 days before entry is

presumed reasonable if mailed).

Form of Notice

Personal service

Leaving with person of suitable

age/discretion

Leaving on or under usual entry door

U.S. Mail

(Test: Must be reasonable calculated,

under the circumstances, to provide

actual notice)

Exceptions to the notice

requirement Emergency

After move-out or abandonment

T is present and consents to entry

Oral agreement between L/T to make

repairs or supply services, must

include approx. date/time; expires

after one week.

Landlord’s Notice to Move

Out 60 days if tenancy has exceeded 1 yr

30 days of < 1 yr,

30 days if L has contracted to person

who intends to occupy, with conditions

L not required to state reason for

notice

Good cause may be required for rent

control cities or Section 8 vouchers.

Security Deposit

May hold for unpaid rent, justified cleaning or repairs, restoring/replacing personal prop

Hold amounts reasonably necessary

L must refund within 21 days or less

If asks for “Initial Inspection” before move out, L must inspect, ID defects, and give T opportunity to cure. L cannot do “Initial Inspection” without T’s request.

L must give T written notice of “Initial Inspection” opportunity.

The Rental Agreement

Recommended to be in writing, required for term exceeding one year

Where terms differ from statutes, terms of Agreement control, except waivers of:

Rights/remedies under 1950.5 or 1954

Right to assert future cause of action

Right to notice or hearing under law

Procedural rights in litigation

Other violations of public policy.

The Rental Agreement

Conditions of tenancy, rents, and agreements

Oral or written. Writing required for >1 yr

Fixed term or periodic

ID the parties

Provide L’s (or designee’s) name/address

Describe property

Specify rent

State rental period, due dates, late charges

Signed by all parties.

Security Deposit

Max 2 month’s rent

Must be refundable

Must be refunded unless leaving unit

less clean than when moved in,

damaged beyond normal wear and

tear, or fail to restore personal

property (L’s keys or furniture).

Rent Increases

If notice served by 1st class mail, add

5 days to timing

If LESS than 10% (compared to

cumulative last 12 months) 30 day

notice required

If MORE than 10% (compared to

cumulative last 12 months) 60 day

notice required.

Conclusion of Lease

If T remains and pays rent, it creates a

legal presumption of periodic month-

to-month tenancy, with all other terms

remaining intact

If T remains and doesn’t pay, L may

bring eviction proceedings.

Subleases/Assignments

Sublease is a separate rental agreement between original and new T's. Old T's remains with the sub-T. Owner not in privity with new T.

Assignment it a transfer of all T's rights to someone else. Is a contract between the original T who completely moves out and does not return, and the new T assumes all rights/obligations. Owner is in privity with both old and new.

Most rental agreements prohibit both. Original T remains liable in both situations.

Hotel/Motel Guests

Hotel/motel guests have T’s rights.

Exceptions:

Living in lodging facility for 30 days or

less, and room subject to TOT

Living in above for more than 30 days,

but have not paid all charges owing by

30th day.

Non-Tenants

Live in hotel/motel where mgr has right of access/control, and all of these are true:

Facility allows occupants for les than 7 days

All of the following are provided to all T’s:

Fireproof safe for T’s use

Central phone system

Maid, mail, and room service

Food service provided on or next to facility, if service is provided in conjunction with facility.

Non-Tenants, Continued

Transitional housing residents

Mobilehome Residency Law

Recreational Vehicle Park Occupancy

Law

Exception: normal eviction procedures

apply to certain mobilehome residents,

inc. a person who leases the unit from

its owner, where owner has leased

site directly from park.

Single Lodger in a Private

Residence Most lodgers have same rights as T’s

Except: if only 1 lodger, owner can

evict without eviction proceedings

Amount of notice must be same as

period of rent payment

Lodgers who remain past notice

period are trespassers.

Overcrowding

CA adopts UHC requirements, (at least 1 room that is at least 120 sf, other habitable rooms at least 70 sf, any room used for sleeping must increase 50 sf for each person in excess of 2) (UHC 503(b), H&S 17958.1)

L can establish reasonable standard for # of people per sf, but cannot use overcrowding as a pretext for refusing T’s with kids, if he would rent to same # of adults

Nolo recommends: 2 persons/BR + 1 additional; anything more restrictive is discriminatory.

Unlawful Discrimination

CA FEHA and Unruh Civil Rights Act, unlawful to discriminate on basis of persons:

Race, color, religion, sex (inc pregnancy, childbirth or related conditions), gender, perception of gender, sexual orientation, marital status, national origin, ancestry, familial status, source of income, disability, medical conditions, age

Except: Can lawfully discriminate when renting to one roommate, but can’t advertise preferences, and can’t exclude due to age or medical.

Remedies for Unlawful

Discrimination Recovery of out-of-pocket expenses

Injunction prohibiting unlawful practice

Access to the denied housing

Damages for emotional distress

Civil penalties or punitive damages

Attorney’s fees

Other specific action.

Statutory Remedies/Penalties:

Agency Dependent

FTB disallowance of deductions (cite)

LL may not collect rent for

substandard conditions that continue

past 45 days

Mandatory relocation orders

May be useful inform L's of potential

consequences up front.

CA Department of Employment

and Fair Housing

The DFEH's statutory mandate is to

protect the people of California from

employment, housing and public

accommodations discrimination and

hate violence pursuant to the

California Fair Employment and

Housing Act (FEHA), Unruh Civil

Rights Act, Disabled Persons Act, and

Ralph Civil Rights Act

HUD

Enforces federal fair housing law

HUD has played a lead role in

administering the Fair Housing Act

since its adoption in 1968.

Resources

www.dfeh.ca.gov www.hud.gov www.NationalFairHousing.org Legal aid organizations, see yellow

pages, or www.lawhelpcalifornia.org/CA/StateDirectory.cfm and

www.calegaladvocates.org .

Local level

Fremont Fair Housing

City contracts with Project Sentinel for L/T

Services, including:

Rent increase dispute mediation

L/T counseling

T referrals to legal assistance

Investigations of unfair discrimination.