KTS Legal Questions Dec 2017

Posted: 8th December 2017 by Melissa in Rent Sense
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FBS operates Rental Properties for Independent Owners utilizing Industry Best Practices which creates direct benefits to our Rental Customers. We have provided Superior Housing Alternatives now in our 5th Decade. Our available rental inventory changes daily. www.fbs-pm.com

As professional managers we must stay on top of local, state and federal laws, regulations and housing codes that are imperative to our clients and rental customers. We review and update our contracts, policies, forms and routines with the help of KTS (Kimball, Tirey and St. John)
Ted Kimball, Esq. weighs in:
 Question: My tenant has some damage to the outside window to the house I rent to them. The tenant claims the damage was done by a burglary attempt but I suspect they locked themselves out and damaged the window when trying to get back in. Who is responsible for the repair?

Answer: Unless proved otherwise, damage to the premises caused by unknown third parties, acts of nature, or unexplainable are the responsibility of the landlord.

Question: In a co-signer situation what forms do you recommend that the co-signer sign along with the tenant?

Answer:  They  should  sign  a  separate  guarantee  agreement  that  has  been  reviewed  by competent counsel.

Question: As resident managers, we are dealing with several tenants in violation of pet rules. In retaliation, they have made false accusations of us entering their apartments without notice. They are now disturbing other tenants with this untruth and questioning our integrity. How can we protect or defend ourselves?

Answer: You can serve a three-day-notice to perform conditions and/or covenants or quit to permanently remove the unauthorized pets. If you can prove the pets are still there after the notice expires, you can file for unlawful detainer.

Question: In assessing a late charge in a lease, is there a law stating how many days after the due date must expire before a late charge can be imposed.

Answer: California law does not prohibit a landlord from charging the tenant a bona fide late charge after the rent is delinquent. The rent is not delinquent unless one business day has passed at the time the rent became due. If the rent is due on the first and the first is on a weekend, a late charge could not be imposed until after the first business day expires.

Question: What happens when the lease expires? Is it assumed that the agreement goes month-to-month? Or should a new agreement be signed.

Answer: If the lease does not speak to renewal or reversion to month-to-month and the tenant remains in the premises with the landlord’s consent, the law will presume a month-to-month agreement if the rent is paid and accepted by the landlord.  It then can be terminated by either side serving the other with a written thirty-day or sixty-day notice to quit.

Question: I have a lease with two male tenants. The lease specifies two occupants only. One of the tenants has a girlfriend who spends the night every day of the week for the last month.  How do you determine when a guest is an occupant.

Answer: Unless the tenant admits to having another person move into the rental unit, you need to prove that they are occupying the unit through circumstantial evidence.  Proof of facts such as receiving mail at the premises, coming to and from work on a daily basis, present on weekends, or making requests from management all could lead a trier of fact to conclude that the person is an occupant of the premises.

Question: Someone told me that a guest of a resident can file a fair housing complaint, is that true?

Answer: Yes. Guests have standing to bring a fair housing complaint or lawsuit if the guest receives discriminatory treatment while visiting a resident at your property. A common example would be refusing to allow a guest to bring his assistive animal with him when he visits your resident at the property.

Question: Is there a law for returning the security deposit within a certain time frame? If I missed the due date is there an automatic penalty? I overlooked accounting for a deposit and it has been 25 days

Answer: California law allows residential tenants and landlords to contract for up to 21 days for the accounting and, if applicable, return of all or a portion of the tenant’s security deposit. There is no automatic penalty for being late.

Question: When we have called attention to a violation of the lease or community rules, tenants frequently will say we are “picking” on them.  How can we protect ourselves? Answer: First, make sure you are enforcing the lease and community rules equally to all violators. The best way to avoid or minimize legal challenges is by documenting all incidents and responding in a consistent manners.

Question: When typing up a new lease, should we use the spelling of the tenant’s names as it appears on the application or on their driver’s license.

Answer: It is important to be consistent on how you spell their name in the event legal action is necessary. It is best to use the name exactly as it appears on their driver’s license and request that they fill out the application in a manner consistent with this request.

Question: If a one-year residential lease is broken, what becomes of the security deposit? Answer: Once the tenants have vacated the premises and the landlord has taken over possession, the time to account for the use of the security deposit (normally 21 days) begins. The deposit can be used for any monies owed the landlord including delinquent rent.

Question: I have single family homes that I have for lease. They have large, well- maintained gardens.  How do I best insure that they are kept up?

Answer: Your best bet is to hire a gardener yourself, build the cost into the rent and have the lease read that the gardener has permission to enter the property for gardening/landscaping/mowing etc. That way you have more control.

This article is for general information purposes only. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office. Ted Kimball is a partner with Kimball, Tirey & St. John LLP. Our primary practice areas are landlord/tenant, collections, fair housing and business and real estate, with offices throughout California. Property owner’s and manager’s with questions regarding the contents of this article, please call 800.338.6039.

 

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