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Legal Q & A New Laws for 2015 – by Franco Simone, Esq.

Posted on 01. Jan, 2015 by in all, Magazine Articles

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Q:  My tenant prefers to communicate via email. He is moving out in a month and would like for me to email him the security deposit itemization directly. Am I allowed to send him the itemization by email?  

No, you may not send the itemization electronically.  If you and your tenant prefer to communicate by email or sign documents electronically, then you may sign an agreement with your tenant authorizing electronic communications and signatures.   

Previously, state law only allowed for electronic signatures on lease and rental agreements.  Beginning January 1, 2015, certain security deposit documents may be communicated electronically, including the Notice of Tenant’s Right to Inspection, given to the tenant two weeks prior to vacating. However, this new law does not change your obligation to deliver an itemization of the security deposit, either personally or via first class mail, within 21 days after the tenant vacates. Failing to provide your tenant with the itemization and/or refund within the allotted time period may result in losing the right to retain any of the deposit.

 

Q:  My tenant recently approached me asking if she could start growing fruit trees and vegetables at the property for her family. I’m concerned that she will not maintain the garden and that it will begin to attract vermin. What is the current law on allowing your tenant to utilize the property for personal agriculture?  

As of January 1, 2015, the law requires that landlords allow their tenants to cultivate edible plants in portable containers, such as pots and planter boxes, in any outdoor space or yard that is intended for exclusive use by the tenant.  The rationale behind this new law is to promote healthier lifestyles and diets, lower the costs of food, and increase the community’s access to fresh fruits and vegetables.  Thus, you cannot restrict your tenant from growing food in pots in the tenant’s outdoor space, including front and side lawns.  However, your tenant must obtain your approval before selecting and placing them. In addition, there are several other conditions that must be met by your tenant before they may begin growing fruits and vegetables: 1) the tenant must remove any dead plants and weeds on a regular basis, unless you have an agreement with your tenant to the contrary; 2) the agriculture may not restrict the ability to maintain the property; 3) portable containers may not be positioned in any place that obstructs the tenant’s parking space; 4) portable containers cannot be placed in walkways, block entrances or exits, or create health or safety hazards; 5) any agriculture that is not contained in portable containers must be approved by the landlord; 6) synthetic chemical products used to grow plants may be prohibited by the landlord; 7) the landlord may require that the tenant enter into a written agreement regarding the extra water usage and waste collection costs as a result of the agriculture; 8) after giving proper notice, the landlord has the right to periodically inspect the space where the agriculture is located.  Also keep in mind that your lease or rental agreement may require that the tenant maintain the front and side yards in a specific manner.  While these provisions remain enforceable, you must allow your tenant to use these areas according to this new law.  Further, while you may wish to increase your tenant’s security deposit to account for any problems that the garden may cause, remember that the maximum deposit is capped at two times the monthly rent and you may not increase the deposit if your tenants are currently in a lease.   

Q:  My tenant is concerned about the drought and has reduced the amount of water they are using to water their front lawn at my rental property. I received a notice from my HOA that if my lawn is not watered more frequently to keep the grass green, that they will fine me. Can they fine me for not watering the lawn enough, even if we are in a drought?  

The HOA can no longer fine you for your tenant not watering their front lawn as specified. In the past, the HOA was permitted to penalize homeowners for failing to properly maintain their property as indicated in the association rules for that particular neighborhood.  Currently, the HOA is strictly prohibited from enforcing penalties on homeowners for not taking care of their yard in accordance with the HOA guidelines. This is a result of the state of emergency declared by our Governor due to the severe drought we are currently encountering. In fact, the only penalty or fine you could potentially face would be triggered by using excessive amounts of water for activities considered unreasonable at this time. These activities can include watering your lawn and allowing excess water runoff, washing your car with a hose that is not equipped with a shut-off nozzle, or operating an ornamental fountain that does not re-circulate. Noncompliance with these regulations can result in a violation from the city and fines of up to $500 for each day the activity takes place.  

Attorney Franco Simone, of the Landlords Legal Center and has been doing evictions for 20 years.  He is also an adjunct law professor at the University of San Diego.  Mr. Simone’s office is open Monday- Friday from 9:00 AM to 5:00 PM, Tel: 619-235-6180, website: www.landlordslegalcenter.com or email info@landlordslegalcenter.com