Rent Watch

Rent Watch is a column written by Project Sentinel addressing various landlord and tenant issues. It is published in major newspapers throughout California. Click on the question to get the answer.

Illegal Sublet

Question:
I have rented a three-bedroom unit in a large apartment community for the last two years. About eight months ago, I lost my job, which of course means I could no longer pay my rent. Rather than be evicted, I found a roommate on Craig’s List, who now pays half of the monthly rent. From the beginning, my roommate has written a separate check for his half of the monthly rent and I write my own check for the other half. I give both checks to the rental office at the community, which is the place designated for payment in my rental agreement. When I took the two checks to the office last week, the new resident manager told me that she would not accept the checks. She said I was in violation of my rental agreement. She showed me a copy of the agreement, which I must admit does prohibit subletting without management’s written permission. I am really stuck here, is there anything I can do?

Answer:
A landlord has the right to prohibit subletting totally or to require advance written consent. If the management wants to enforce this clause, you could be given a three-day notice to remove your roommate or face an unlawful detainer action for eviction. You have one potential defense to the assertion that you are in violation of the rental agreement. If you can show that the community’s management allowed the roommate to occupy your unit and did not take timely action to require the roommate to vacate, you can assert that management’s inaction constituted a “waiver” of its right to enforce the clause prohibiting sublets. Knowingly accepting a rent check from your roommate over a period of months is strong evidence of waiver. Even if you have a strong defense the consequences of being named in an unlawful detainer can be costly in terms of time and money. If the court rejects the defense you will have an eviction on your record, which will seriously limit your ability to rent in the future. As an alternative, you could contact your local mediation program to see if a resolution of the roommate’s status can be resolved. Management has an incentive to avoid losing a tenant, as well as the time and cost of eviction. For example, you and your roommate could reach an agreement to add the roommate to the rental agreement or you could negotiate an agreement allowing you or the roommate a reasonable time to vacate.

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Neighbor Makes Racial Slurs

Question:
My neighbor constantly makes derogatory statements to me about my race. The property owner lives in the complex but refuses to resolve this problem. Shouldn’t the owner take action against my neighbor?

Answer:
It is the property owner’s responsibility to provide a safe, discrimination-free living environment at your apartment complex. Race is a protected category under the federal fair housing laws, and the Fair Housing Act makes it unlawful to coerce, intimidate, threaten, or interfere with any person’s right under the Act (42 U.S.C. 3617). A housing provider who knows of an intimidating or threatening situation that violates the Fair Housing Act and does nothing to stop the harassing behavior can be found in violation of the Act. Failure to investigate, attempt resolution, or take any action to stop the harassing behavior may leave the landlord as equally open to a fair housing complaint as the person carrying out the harassment. You should contact Project Sentinel at 888-FAIR-HOUSING or your local fair housing agency immediately for more information and assistance. If the statements are so serious as to constitute a hate crime, such as an immediate threat of harm, the local law enforcement agency should also be notified.

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Potbelly Pig for Companion Animal

Question:
Due to a nervous condition, my doctor has approved me for a companion pet. The agency that supplies companion animals has a potbelly pig it needs to place and I would love to have it. My landlord agrees that I can get a small dog or cat, but has denied the pig. Does he have the right to designate the type of animal I get?

Answer:
A waiver of a “no pets” policy is a reasonable accommodation for a disabled person who needs an emotional support or companion animals to ease the disability. However, if you are still in the process of obtaining a companion animal and a particular kind of animal is not specifically necessary according to your doctor, it is reasonable for your landlord to establish the types of animals he will allow. Also, some cities have laws that may regulate or preclude the ownership of certain animals in your area. You will still be able to get the companion animal that you need, but not whichever one you want.

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Tenant Leaves Behind Furniture

Question:
Storage facilities are quite scarce in my area. A tenant who is about to depart has asked if she can leave her belongings in the apartment until her new unit is available. This is not going to be possible since I need to get the unit ready for the next tenant. What can I do if the tenant does leave personal items and furniture?

Answer:
Civil Code § 1984 allows you to send a Notice of Right to Reclaim Abandoned Property to a tenant who leaves belongings after they have moved. This notice gives a tenant 18 days to make arrangements to take possession of their belongings. During this time you can move the items to a safe area to protect them. After 18 days, if the items have not been removed and they have a collective value of less then $300, you can dispose of them in any manner you wish. However, if in your estimation, the value is more than $300 you must hold a public sale and, after deducting reasonable storage fees and sale costs, deposit the net proceeds with your county’s Department of Revenue. As you can see, the process can become burdensome so we recommend that you work closely with the tenant to resolve this matter without having to resort to these measures. Your local housing medication program can offer additional information for you.

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Differences Between Notice for Landlords and Tenants

Question:
Hopefully you can clear up some confusion about the new law on how to end a tenancy. Is it true that a landlord has to serve a 60-day notice to move while a tenant is only required to give a 30-day notice?

Answer:
The law requiring a 60-day notice from a landlord had been allowed to expire, but it has been re-instated. Effective January 1, 2007, Civil Code § 1946.1 requires a property owner to serve a written 60-Day Termination of Tenancy notice to month-to-month tenants who had resided in a rental property for one year or more, except in certain limited situations when the property is being sold. Tenants are only obligated to serve a 30-day written notice. This notice requirement does not apply to tenants who have leases. In the case of a lease, tenancies can be ended by the non-renewal of the lease by either party although most leases have a clause requiring an advance notice, usually 30 or 60 days, when a tenant or property owner does not intend to renew a lease. Even when rent is paid on a 2-week or 7-day period, the property owner is still obligated to give a 60-day notice, pursuant to Civil Code § 1946.1. For tenants of less than one year, a property owner can serve a 30-Day Termination of Tenancy notice.

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Tenant Wants Gender Changed

Question:
One of my tenants has asked me to change the gender listed on his rental application from ‘male’ to ‘female.’ Since the application was only used to qualify him as a tenant, I don’t see the need to make this change. His signed rental agreement does not refer to his gender. Do I have to make this change?

Answer:
It would be wise to allow the tenant to change the gender listed because under federal fair housing law, gender is a category protected from discrimination. This means that a person cannot be discriminated against solely based on the fact that they are male or female. Furthermore, under California law, sexual orientation is a protected category, which means that you cannot discriminate against someone because they are gay or straight, or because they are transgender. If you were to refuse to make this change for this tenant, but would agree to make another change – a change in marital status, for example – for another tenant, this tenant could potentially file a discrimination claim against you. Although the change seemingly has no impact on the tenant’s tenancy, housing providers need to be careful not to provide differential treatment based on any of the protected categories.

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Recommended Non-Discrimination Statement

Question:
Can you recommend a ‘non-discrimination’ statement I can add to my rental applications to show that all prospective tenants are welcome to apply?

Answer:
I would recommend putting the following statement on your application along with the equal housing logo, available online at: http://www.hud.gov/library/bookshelf11/hudgraphics/fheologo.cfm. “Federal and California state fair housing laws guarantee a right to housing free from discrimination based on race, color, national origin, religion, sex, familial status, disability, source of income, sexual orientation, age, marital status, or any other arbitrary characteristic. We welcome all applicants in accordance with these laws.”

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Co-Signer for Single Mother?

Question:
I am a single mother with two children. When I applied for a 2-bedroom apartment, the manager told me that my children’s father would have to co-sign my rental agreement. I have sufficient income to easily qualify on my own and don’t want or need a co-signer. What can I do?

Answer:
Under federal and state fair housing laws, it is illegal for a housing provider to treat you differently because you have children or are married. As long as you are independently qualified for the unit, you do not have to co-sign with anyone. Therefore, if the manager is requiring the co-signer specifically because of your children or because you are unmarried, then you should call your local fair housing agency and inform them of the situation. Fair housing agencies can explain to the manager that they cannot treat you differently because you are unmarried or because of your children, and they can also investigate to see whether all single mothers are receiving similarly discriminatory treatment.

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Dangerous Breed Sent Packing

Question:
I have lived in my apartment complex for 8 years on a month-to-month agreement. I have a large dog that is well behaved. Recently my landlord told me I couldn’t keep my dog because of the chance the dog may bite someone. I explained that the dog had never bitten anyone, but he refuses to let the dog stay and he gave me a 30-day notice to remove the dog. I paid a $200 pet deposit at move in and want to know if there is a law that protects tenants with pets?

Answer:
It depends. Under certain circumstances, State of California Civil Code § 798.33 allows for pets in mobile home parks and in public housing (for tenants who are over age 60). Also, Civil Code § 54.1(b)(5) allows for pets if the pet is a designated ‘service animal.’ A service animal is a properly trained animal for the blind, deaf or physically or mentally handicapped. If your living arrangement is not one of the above, or your dog is not a service animal, there is no law that provides a tenant the right to keep a pet. A property owner has the discretion to either allow or disallow pets of any size, shape, or demeanor. Even if at one time a pet has been allowed, a landlord can change this condition with a properly served 30-Day Notice of Change of Terms of Tenancy. This change is only allowed for month-to-month tenants. To help your cause, you may want to offer your landlord an additional pet deposit. This deposit plus any pet or security/cleaning deposit already paid, cannot amount to more than two times the rent for an unfurnished unit or three times the rent for a furnished unit. Other suggestions are to offer to obtain a renter’s insurance policy to cover any potential liability that may arise from keeping your dog, or to offer to have your dog participate in an obedience program. Some local rent control ordinances limit landlord rights to impose pet prohibitions on tenants. If this is your situation, check with your local rent control agency or city housing department. Even if civil code or local ordinances allow pets, no pet may be kept in violation of humane or health laws.

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Broken Window Is Landlord’s Responsibility

Question:
When the landlord painted the inside of my apartment last year, he painted all the windows shut. Yesterday when I tried to open the living room window, the glass broke. The window has been repaired, but the landlord said I have to pay the bill. Am I responsible for repairing the broken window?

Answer:
California Civil Code § 1941.1 requires that property owners maintain rentals in a condition ‘fit for living.’ Besides requiring that roofs, walls, plumbing, hot and cold water, sewers, heaters, lights, floors, stairways, and sufficient number of trash containers be provided and maintained in good condition by the owner, this code requires that doors and windows be operable and unbroken. Unless you were reckless or careless in attempting to open the window, it would seem unreasonable for the landlord to require you to pay for the repair. Additionally, painting windows shut could be a violation of local fire code. Contact your local housing mediation program or your local code enforcement office for more information.

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Landlord Forcing New Agreement

Question:
Two months ago I signed a one-year lease that clearly states that the landlord pays for gas and water and I pay for garbage services. The landlord now says she made a mistake and I should be paying for electricity also. She wants me to sign a new lease that includes electricity. Can she do this?

Answer:
Unless you agree to allow the change, conditions of a lease cannot be changed during the period of the lease. If you don’t agree with this change, then the landlord must wait until your lease expires to make the change or else offer you some consideration in exchange for renegotiating these terms. The landlord also has the option of not renewing your lease when the time period expires. This is an excellent issue for mediation and we suggest you contact your local housing mediation program for assistance.

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Hostile Environment for Children

Question:
I have two pre-teen sons. I live in an apartment complex in which there is a large grassy courtyard. I am very concerned about t manager’s overly strict attitude toward the children who live in the complex. If there is a group of them playing in the courtyard, she yells at them, telling them that the courtyard is not a play area. Then she tells them to go to the park down the street if they want to play. There’s nothing in the lease that says that children can’t play in the courtyard, but now my children and most of the others are scared to go outside. Can the manager treat the children this way?

Answer:
Discrimination against families with children in housing can take many forms. What you have described seems to indicate that the manager is creating a hostile environment for children by restricting them from playing in the courtyard, and by enforcing this policy in an intimidating fashion. As long as there is adequate supervision, there is no legitimate business reason to restrict children from playing in the courtyard during the day. If individual children are damaging property or causing other problems, the manager should address the issues with their parents on a case-by-case basis. Any other rules that the manager may wish to enforce, such as restricting the use of bikes and scooters on the pathways for safety reasons, must be written and enforced in an age-neutral manner, so that both children and adults alike are restricted from the activity in question. Finally, the fact that there is a park down the street does not give the manager the right to prohibit children and their families from fully enjoying the property where they live and pay rent. For more information on this issue, you can speak to a Fair Housing Specialist at Project Sentinel by calling 888-FAIR-HOUSING.

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Landlord Delays Security Deposit Return

Question:
It’s been over 21 days since I moved from my apartment but the landlord has not returned my deposit. When I requested my refund, she said I will get a full refund but right now she doesn’t have the money to pay me. She says she is allowed an extension because of her financial situation. Is this true?

Answer:
The answer to your question is covered by Civil Code § 1950.5. This statute allows for additional time beyond 21 days for a landlord to return a deposit, but not for the reason your landlord, has given. In general, this code says a property owner must settle a deposit within 21-days after a tenant vacates with either a full or partial refund or a bill if the deposit amount is not sufficient to cover the damage charges. If the deductions exceed $125, adequate documentation such as repair invoices must be included. The property owner must still provide a statement to the tenant within the 21 days even if the deductions do not exceed $125.00. Financial hardship is never an excuse for a landlord to avoid the obligations required under California law. The only permissible extension for these obligations is when work or materials are being provided by outside vendors who have not provided the proper documentation to the landlord within the 21 days. In this case, the property owner may deduct a good faith estimate of the undocumented charges along with the name, address, and telephone number of the vendor, in order to meet the 21-day requirement. Within 14 calendar days of completing the repair or receiving the documentation, the landlord needs to send a final settlement statement along with the documentation and receipts to the tenant. Contact your local housing mediation program for more information.

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Tenant Requests Gardening Space

Question:
One of my tenants who follows a vegetarian diet for personal health reasons wants to use a portion of the common grounds to grow vegetables and herbs for herself. I’m concerned about an invasion of bugs, puddles of water, and starting a trend with the other tenants. The tenant cannot produce a doctor’s report that this diet is a medical necessity. Would I be discriminating against this tenant if I say ‘no?’

Answer:
No, it’s not discrimination to refuse as long as your tenant wants to grow vegetables and herbs for personal reasons and not because of medical reasons related to a disability. Furthermore, even if she were able to provide a doctor’s statement that says that she needs to be a vegetarian, you still would most likely be able to deny the request, since having a garden is not the only way to provide one’s self with a healthy vegetarian diet. A landlord only needs to grant an accommodation request to a tenant with a disability if the request is reasonable and if it is clearly connected to the person’s needs for residing at the premises.

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Gay Guests Harassed

Question:
I live in a 4-bedroom house in which the individual rooms are rented out to different tenants. The tenants, including myself, sometimes have overnight guests, some of whom are friends or family, and some of whom are known as ‘significant others.’ However, I am gay, and when my boyfriend occasionally stays the night, my landlord has told me “this is not a whore house and my boyfriend can’t stay the night.” He doesn’t say this to any of the other tenants about their guests. Isn’t this discrimination?

Answer:
Yes, it is considered discrimination when the landlord applies different terms and conditions to the tenants based on sexual orientation. The California Fair Employment and Housing Act and the Unruh Act prohibit discrimination based on a person’s sexual orientation. The landlord cannot deny you overnight guests, boyfriend or otherwise, if he allows overnight guests to other tenants. All rules must be applied equally to all tenants, regardless of a person’s sexual orientation. For further information, you can contact your local fair housing agency.

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Caregiver Needs Parking Space

Question:
My mother requires 24-hour nursing care. The caregiver who stays overnight also delivers medical supplies to shut-ins and has always parked her truck in the apartment’s visitor lot. My mother received a notice saying the truck can no longer be parked in the lot because it is a commercial vehicle. Since the vehicle belongs to a caregiver, does it really matter if it is a car or a commercial truck? Isn’t my mother entitled to have her caregivers use the visitor’s parking lot?

Answer:
In order to give a person with a disability equal opportunity to use and enjoy a dwelling unit or a common space, landlords are required to make reasonable accommodations to a property’s rules practices and procedures. In your mother’s case, the accommodation would be an adjustment to the rules that prohibit commercial vehicles from parking in the visitor lot, assuming there is a clear need to park there in order to provide effective care to your mother. Although a landlord is not obligated to bend every rule, he or she is expected to accommodate requests that do not pose an undue financial or administrative burden, and that do not fundamentally alter the way in which the business is run. Since the commercial truck is for a caregiver that your mother needs for her disability, it would be reasonable to request that the caregiver be allowed to use the visitor’s parking lot. If the manager still denies the request even after you have made it clear that you are requesting a reasonable accommodation, contact your local fair housing agency for further assistance.

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Nearby Owner Harasses Blacks

Question:
I own and manage a mid-sized complex that has a diverse population of residents. There is a complex across the street that is owned by a man who seems to be a racist. He harasses many of my African-American tenants with racial slurs and threats. Several of these tenants have moved out because of the harassment. He even asked me to stop renting to black people because he claims they are bringing the property values down. The police won’t help me. What can I do about this?

Answer:
The fair housing laws have a much broader reach than most people realize. Not only can tenants make a complaint about a landlord who denies them a unit for discriminatory reasons, but people living in a neighborhood in which a fellow resident is creating a discriminatory environment may also have grounds to file a fair housing complaint. This means that you yourself could sue the man across the street. It also means that any current or past African-American tenants from the neighborhood could file a lawsuit as well, if they were harassed or intimidated by the other property owner. Please call your local fair housing agency for more information on how to pursue the different options available to you and your tenants.

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Co-Signing a Rental Agreement Often Not a Good Idea

Question:
My cousin has poor credit and he has asked me to sign a rental agreement with him. He wants me to move in for a few months and then move out leaving him as the only tenant. Is this okay to do?

Answer:
There could be a number of problems with this arrangement. Once you sign a rental agreement, you remain fully responsible for all legal obligations under that agreement. For example, even if your cousin also signs the agreement, if he then fails to pay rent or damages the premises, you are fully liable and the landlord can decide to pursue you for all of the unpaid rent and all of the damages. Regardless of whether you continue to reside in the rental unit, your responsibility continues as long as you remain a signatory on the agreement. If you wanted to unilaterally terminate your tenancy, for example by giving 30 days notice if you sign a month-to- month agreement, the landlord could then force your cousin to also vacate or else sign a new agreement. Contact your local housing mediation program for more information.

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Using Security Deposit for Last Month’s Rent

Question:
The troubled economic times are causing me to think about moving out of my apartment and back into my parent’s home. My security deposit is quite large and it would help me financially if the landlord allowed me to use all or part of it for my last month’s rent. What can the landlord do if I don’t pay the last month’s rent?

Answer:
Landlords are not obligated to use security deposit funds as last month’s rent. If your landlord does not agree to use your deposit for the last rent, he or she can serve a 3-Day Pay Rent or Quit Notice. To prevent possible legal action, known as an unlawful detainer, it is advisable to pay the rent within the required time period. Before you decide not to pay the rent, you may want to discuss the situation with the landlord. Depending on your relationship the two of you have and perhaps after viewing the condition of your unit, he or she may be willing to help you out. According to Civil Code 1950.5, security deposit funds can be used for damage caused by a tenant or their guests, any past due rent, or any necessary cleaning.

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Right to Install Satellite Dish

Question:
The cable television reception is poor in the apartment building where I live. I want to install a satellite dish but the building manager says they are not allowed. Is there any regulation that prohibits property owners from taking this position?

Answer:
The Federal Communications Commission (FCC) Over-the-Air Reception Devices Rule, 47 C.F.R. Section 1.4000 regulates the subject of satellite dishes. In general terms, landlords are prohibited from including any provision in any rental agreement or lease which would restrict a tenant’s right to install a satellite dish, as long as the dish is one meter or less in size, and as long as it is installed in an area for which the tenant has exclusive use and control, such as a balcony or patio. The principal exception to this right is if the installation would raise a legitimate safety concern, such as placement on a fire escape or close to a power line. There is no distinction between current or new tenants; a landlord cannot require any tenant to waive their federal right as part of a rental agreement. For more information, call the FCC toll-free at 1-888-225-5322 (TTY: 1-888-835-5322) or to obtain a copy of the FCC fact sheet go to the FCC website http://www.fcc.gov/mb/facts/otard.html.

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Right to Operate a Day Care Business in a Rental Unit

Question:
I own a house that I am trying to rent out. The previous owner rented to very large families, and the neighbors had voiced their complaints that there were always too many children running around. When I acquired the home, its interior was in really bad condition and had to be completely redone. So, I am determined to rent to a family that will take care of the property. Recently, a couple that runs a licensed home daycare applied to rent the house. I have concerns about using the house for a commercial purpose and the liability that comes with that. Also, I am worried about damage that may be caused by having too many children in the house. Can I deny them based on these concerns?

Answer:
No. As a general rule, a landlord can prohibit business activities in a rental unit if that prohibition is an explicit condition in the rental agreement. In addition, some type of business activities might violate local zoning ordinances or other local laws. However, state law creates an exception for the operation of a licensed day care business in a rental property, home or apartment. The law requires landlords to allow this type of business. California has a licensing system for operators of family child care homes. Operators of family child care businesses can be licensed to provide child care in their own homes, including rental units, for up to 14 children. It is the public policy of this state to provide children in a family care home the same home environment as provided in a traditional home setting. The applicable laws require the provider to either carry liability insurance, post an equivalent bond, or have the parents sign an affidavit acknowledging their understanding that the provider does not have insurance. You can certainly urge the provider to protect everyone by choosing to carry insurance and to place your name on the policy as an additional insured.

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Do Tenants Pretend to Be Disabled?

Question:
I manage an apartment building that has a ‘no pets’ policy. In the past, I have allowed disabled tenants to move pets in because their doctors have prescribed the pets as a treatment for the tenants’ disabilities. Recently, however, I have noticed tenants who are not disabled that are moving in their pets without permission. When these tenants get caught, they tell me that they are disabled and that they have been prescribed the animal by their doctor. I know that it is the law to adapt my building’s policies to accommodate the needs of persons with disabilities, but I would like to know how to prevent tenants from pretending to be disabled in order to use this exception.

Answer:
Under fair housing laws, housing providers cannot discriminate against a tenant based on his or her disability. The scope of the term ‘disability’ is broadly construed to include any physical or mental impairment that substantially limits one or more of life’s daily activities. Therefore, people with disabilities are oftentimes perceived as not disabled since the definition is broad enough to include diagnoses not detectable to untrained eyes. It is possible, then, that the tenants in your building are not lying about their disabilities but are instead perceived as non-disabled.

It is true, as your question points out, that housing providers must accommodate tenants with disabilities by creating exceptions in policies that would otherwise apply. These exceptions need only be granted, however, when the tenant’s disability creates a need that an exception in renting policies will remedy. Additionally, the exception must not be unduly burdensome to the housing provider in financial or administrative terms. In deciding whether or not to grant an accommodation to a person with a disability, the housing provider may request that the tenant provide proof of their medical provider’s advisement.

Authorities considering reasonable accommodation requests have pointed out that there is no single way to pose a request to housing providers. Therefore, it is common that tenants with disabilities, who are prescribed service or companion animals, may not initiate making a formal request until after they have been approached by the housing provider. With this, as long as a tenant who is claiming to be disabled can provide you with his or her medical provider’s advisement, it is likely that they are not abusing this exception by pretending to be disabled. If you have additional questions or need further assistance, please contact Project Sentinel at 888-FAIR-HOU (888-324-7468) or your local fair housing agency.

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Negotiating a Lease in Another Language

Question:
My friend is a monolingual Spanish-speaker and communicates with her landlord in Spanish only. The landlord recently demanded that my friend sign a new lease agreement or be evicted. She told him that she could not read the new lease agreement because it was in English, and that she did not want to sign anything he could not understand. What are her rights?

Answer:
According to CA Civil Code Section 1632(b), if the landlord negotiates for the rental, lease, or sublease of a rental unit with a tenant primarily in any of the following five languages, Spanish, Chinese, Tagalog, Vietnamese or Korean, then it is the responsibility of the landlord to provide a written translation of the lease or rental agreement in the language used in the negotiation. This applies whether the negotiations are oral or in writing. The exception to this rule is if the rental agreement is for less than one month, or if the tenant provides their own translator who reads, speaks fluently, and writes in any of the five languages, is not a minor, and not employed by the landlord. Otherwise, whether the tenant requests a translation or not, it must be provided in any of the five languages previously listed. For more information about translation requirements in rental agreements, visit the California Consumer Affairs Landlord Tenant Handbook website: http://www.dca.ca.gov/publications/landlordbook.

Your friend can ask her landlord to provide a Spanish translation of the new lease agreement, as he is legally obligated to. Should her landlord refuse to provide the translated lease agreement, or should your friend feel discriminated against because of her language or origin, please contact Project Sentinel at 888-FAIR-HOU (888-324-7468).

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Lease Contains Waiver of Tenant Rights

Question:
I now realize that when I signed my lease three months ago, I didn’t read all the “fine print” because my landlord has come into the unit several times around 10 o’clock at night. She says she wants to check on whether I am keeping the place clean. I did a little research and told her that I didn’t think she had the right to unilaterally make these late night inspections, but she pointed to a clause in the lease. When I looked at the clause, I realized it specifically gives her the right to enter the rental premises at any time to inspect its condition. Since I signed a lease with this clause, am I out of luck?

Answer:
The very specific rules regulating a landlord’s right to enter a rental unit are set forth in California Civil Code Section 1954. Among other provisions, this statute requires a landlord to give you 24 hours written notice before entering. Even with notice, the statute provides that a landlord can only enter during normal business hours and only for certain specific reasons, such as to make repairs, unless you explicitly give permission otherwise. Checking your cleanliness habits is not one of the approved reasons listed in Section 1954. Some rental agreements, particularly those that are out-of-date or obtained from questionable sources, contain the type of clause you describe in your question, which essentially purports to waive your statutory rights. California law, in Civil Code Section 1953, declares any such waiver unenforceable. Thus the clause in your lease is null and void. Technically, your landlord is trespassing if she enters your unit without meeting the requirements of Section 1954, but you might consider talking with your local mediation program to arrange an understanding between you and your landlord that would meet her concerns while protecting your rights.

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Removing Elderly Mother’s Caretaker

Question:
I am the family trustee for my elderly mother. She is eighty years old, sharp as a tack, and insists on continuing to live in the family house. However, she has advanced arthritis, which means she needs some kind of live-in care. I hired a caretaker two months ago who was recommended by a family friend. I am now unhappy with the care she is giving my mother and want to remove her, but I don’t want to get sued if I tell her to leave immediately. What are the rules in this situation?

Answer:
As a general rule, an adult who lives in a house or apartment with the permission of the owner for more than 30 days becomes a tenant. As a tenant, that person can only be removed pursuant to proper notice of termination of tenancy, and an unlawful detainer action in court if there is no voluntary departure. However, caretakers are one of the exceptions. Unless the caretaker has a separate, written rental agreement, he or she is an employee not a tenant and can be discharged without notice. However, there is still a dilemma if the caretaker fails to leave voluntarily after being discharged. Technically, this person becomes a trespasser by remaining after being discharged, and if you find yourself in this situation you should check with your local police department to see if they will remove him or her. Some local police don’t like to become involved in what they consider to be a “civil” matter, in which case you will have to take further action. If there is credible evidence that the caretaker has been abusing your mother, you can apply to the local superior court for an Elder Abuse Restraining Order, commonly called a “kick-out” order. Many counties in California have restraining order clinics or self-help centers that will help you with the paperwork if you have an appropriate case. Every county also has an Adult Protective Services agency that would respond to an abuse complaint. If none of these remedies work for you, your last resort may be to retain an eviction attorney to file an unlawful detainer lawsuit. Even if the caretaker is not truly a tenant, if she is unlawfully remaining in the premises, this lawsuit is the only remaining option to remove her.

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Victim of Domestic Violence Can Cancel a Lease

Question:
I am a victim of domestic violence and the police have been involved a couple of times. I have obtained a restraining order against my boyfriend but my landlord gave a notice to vacate my unit. Are there any fair housing laws that protect domestic violence victims?

Answer:
Fair Housing laws have been interpreted to protect women from “gender discrimination,” including being evicted solely because they have been victims of domestic abuse. A landlord may want to evict a person who has been a victim of domestic violence to ensure there is no further disturbance on the property that could disrupt the neighbors or be a financial liability. But recent fair housing cases have held that if the tenant can show that the violence will not recur (for example, by obtaining a restraining order or other legal protection), then the landlord should no longer fear a recurrence of the violence, and should not evict the tenant. To do so would have a negative impact on women – the most common victims of domestic violence. A California law, Civil Code Section 1946.7 provides you with additional protection as a victim of domestic violence, by giving you the ability to cancel a rental agreement based on a documented restraining order or police report. Your only obligation, if it becomes necessary for you to leave, is to pay an additional 30 days of rent.

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When Locks Must be Changed

Question:
I manage a very large apartment complex. There are several new tenants who have requested that the door locks either be replaced or rekeyed. The property owner does not want to comply due to the high cost. Do I have to honor these requests or can the property owner refuse to replace or rekey the locks?

Answer:
In California there is no legal requirement for landlords to automatically replace or rekey locks for new tenants. However, as part of a landlord’s habitability obligation, Civil Code Section 1941.1 requires that all doors and windows be secured with proper locks. Locks should be rekeyed if failing to do so would raise a safety issue. For example, a new tenant may be at risk if the prior tenants damaged the existing lock or did not turn in all the keys. Since there is no way to verify prior tenants turned in all the keys, replacing the locks would insure only the new tenants have keys. This action would generate goodwill and encourage the tenants to continue living at the complex. Contact your local housing mediation program if you need more information.

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Permissible Late Fees

Question:
Unfortunately I made a mistake when depositing my payroll check into my checking account. As a result, my rent check bounced. The manager sent me a bill for bank fees of $100.00 along with a copy of my agreement, which allows for the fees. I think this is too high since the error was a mistake and not intentional?

Answer:
In short, Civil Code Section 1719 allows for a fee not to exceed $25.00 for the first check passed on insufficient funds and an amount not to exceed $35.00 on each subsequent check passed on insufficient funds. Therefore, if this were the first insufficient rent check the landlord has received from you, then the $100.00 could be considered excessive. Besides the allowed fees of either $25.00 or $35.00, your rental agreement may also contain language stating other miscellaneous fees. To be enforceable, these miscellaneous fees must be reasonably related to any actual inconvenience or damage to the landlord, rather than a penalty. All of these fees can become cumbersome and difficult to collect by a landlord. If you value the tenancy you may voluntarily offer to pay the bank fees to avoid a 3-Day Notice to Pay Rent or Quit. For your information, no fees are allowed by Civil Code Section 1719 if an account had insufficient funds as a result of a delay in the regularly scheduled transfer of, or the posting of, a direct deposit of a Social Security or government benefit assistance payment.

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Requesting Immigration Status

Question:
I am a landlord who tries to be careful about my process in selecting tenants for my property. I would like to ask prospective tenants to provide me with evidence of their legal immigration status as part of my application process. Do I have the right to include such as question on my application form?

Answer:
Prior to the beginning of this new year, there was continuing confusion about the right to inquire about immigration status, but the question has now been clarified by the California State Legislature, at least for purposes of state law. As of January 1, 2008, Section 1940.3 has been added to the California Civil Code. This statute prohibits a landlord from making any inquiry about the immigration or citizenship status of a tenant or prospective tenant or occupant of residential rental property. The statute also prohibits any local government from enacting any contrary ordinance. The statute states that landlords continue to have the right to request information to document the financial qualifications of a prospective tenant through any other means. The statute also indicates that landlord remains free to comply with any federal law, but in our view there is no federal law requiring a landlord to investigate a tenant’s immigration status.

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Cashing a Disputed Check

Question:
In the memo section of the security deposit refund check I received the landlord has written ‘payment in full.’ I disagree with some of the deductions. Can I cash the check and still continue to disagree with the amount?

Answer:
Unless you have agreed to accept whatever the landlord refunds to you as full and final payment, the notation in the check memo section is not valid. Civil Code Section 1526(a) states “Where a claim is disputed or unliquidated and a check or draft is tendered by the debtor in settlement thereof in full discharge of the claim, and the words ‘payment in full’ or other words of similar meaning are notated on the check or draft, the acceptance of the check or draft does not constitute an accord and satisfaction if the creditor protests again accepting the tender in full payment by striking out or otherwise deleting that notice or if the acceptance of the check or draft was inadvertent or without knowledge of the notation.’ In your situation, you are the creditor and the landlord is the debtor. Since you did not agree to accept the amount refunded to you, the notation should be lined out and initialed. You can then safely cash the check. Additionally if you wish, you can add your own notation such as ‘balance in dispute.’ Contact your local housing mediation program if you need more information.

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