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Legal Q & A – by Ted Smith, Attorney – San Diego

Posted on 28. Jan, 2012 by in all, Magazine Articles

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Q: I find that no matter what I charge for a security deposit, there is the inevitable dispute over deductions from the deposit after the tenant moves out.  Why is that?
A: You have every right to deduct for damages above ordinary wear and tear, reasonable cleaning, and unpaid rent at the conclusion of the tenancy.  A possible motivation for disputes could be that tenants take it as a personal insult that you are deducting for things they claim they did not do, or that the apartment was left in better shape than when they got it.  That is why you need to carefully evaluate, and be able to prove, allowable deductions.  The more deductions, the more documentation you will need.  And remember, you must make sure you do the accounting within 21 days after the tenant’s departure, including all receipts for material and labor in the accounting package.  It is mailed by first class postage to the last known address.

Q: Can you comment on the passage of Senate Bill 337, which authorizes political signs at rental properties beginning 2012?
A: Beginning January 1, 2012, tenants can post signs specific to:

•    an election or legislative vote including an election of a candidate to public office
•    the initiative, referendum, or recall process
•    issues that are before a public commission, public board, or elected local body for a vote

If it is a single family dwelling, the sign can be placed in a window, on a door, or in the yard.  If it is an apartment building, then the sign can be placed on the window or door of the apartment.
There are limitations: no sign can violate local or federal law, if placing the sign would violate a clause in the CC&Rs of the condo development; or the sign is more than six square feet in size.
Although Senate Bill does not provide for removal, the sign must be removed within any local ordinance that may apply.  A reasonable period of time for posting could arguably be two to three months before the election, and removal within 15 days after the election.

Q: Are there rules governing how much rent a landlord can charge and when the rent is due?
A: There are no legal rules, but use your common sense.  Evaluate the market; make sure you are in line with like-kind units in the vicinity.  Otherwise, the sky is the limit, but do not make the unit unrentable.  As far as due dates are concerned, any date that is agreed to by the parties is acceptable.  It does not have to be the first of the month, although most large management companies prefer to be consistent and make rents due on the first.  That would involve taking a pro-rate on a midmonth move.  However, some management companies will take a first full month and prorate the second month’s rent.  After that, the rent would be due in advance on the first.

Q: As the apartment owner, I know what rules apply to me regarding legal notice to terminate tenancy.  What are the legal requirements for a tenant to properly terminate their agreement with me?
A: If the tenant is on a month-to-month tenancy, they are required to terminate with a written 30-day notice.  Verbal is not sufficient.  If they vacate without notice, they will be responsible for the rent, and you may use the deposit to cover that amount.  The 60-day notice rule for month-to-month tenancies longer than one year does not apply if the tenant initiates termination.  In other words, no matter how long they have lived there, they are still only required to give you a written 30-day notice.
As to leases, the tenant owes you a rental obligation for the full term of the lease.  If they vacate during the course of the lease, they will still be responsible for the balance of the lease term, subject only to successfully re-leasing the unit to a qualified replacement tenant.  If you receive a notice of termination from a tenant under a lease, it would be a good idea to respond confirming the existence of the lease and making clear you do not accept their notice as ending their responsibilities under the lease.

Q: I heard that the tenant can make repairs to the unit and deduct them from rent.  I do not want that to happen.  Can you please advise?
A: In California, there is a rule stating that the tenant can eventually make repairs to the unit and deduct the cost from the rent, but there are numerous requirements to this before they can exercise what is commonly referred to as the “repair and deduct” statute.  First, the repair needs to be an item of habitability, not cosmetic or aesthetic in nature – a serous condition in the premises.  Secondly, and most importantly, there needs to be written notice to the landlord that the tenant intends to exercise this right to give you an opportunity to take care of it first.  If you find it is a serious defect then you are going to want to take care of it.  It is not advisable to allow the resident to make any repairs to the property.  You want to maintain control and assure a workmanlike performance of the job so that in the end, the repair and deduct statute should never come into play, provided they give you the required written notice.

Q: What should I do if I find out that I have a registered sex offender living in my property?
A: For the moment, nothing.  California specifically prohibits discrimination in rental housing solely by virtue of the fact that he is designated a registered sex offender.  That said, should he violate his rental agreement by bothering females, stalking, touching, or any other prohibited behavior, then that not only violates his standing on the criminal side but it constitutes a violation of the lease agreement.

For over 25 years, Smith & Associates has exclusively represented San Diego County’s owners, property management companies, and apartment managers in the unlawful detainer process.  With a history of thousands of successful unlawful detainers, we speak with experience on every facet of the legal procedure.  See why San Diego County’s experienced property managers prefer Smith & Associates.  Call Ted Smith for a free consultation.  Smith & Associates, P.O. Box 80306, San Diego, CA 92138, Telephone: (619) 299-1761; Fax: (619) 297-9724 or ted@outyougo.com.