Real Estate

The primary focus of my real estate practice is landlord tenant law, although I handle issues related to leases, easement and boundary disputes, nuisance neighbors, design and construction defects, purchase and sales contracts and brokerage representations. My clients include developers, builders, commercial and residential landlords, financial institutions, residential and commercial brokers and general contractors.

LANDLORD TENANT LAW

Although there is a multitude of constructive information pertaining to landlord/tenant law, which can viewed through various self-help legal guides or accessed through websites on the internet, the actual eviction process, known as an unlawful detainer, (abbrev. UD) can be overwhelming for a landlord as it moves through the court system and “takes on a life of its own”. It goes without saying that most procedures can be “made to sound simple” by just following the 1-2-3 steps, however, a successful eviction is not just a matter of “luck”; it requires the experience of an attorney who devotes a major portion of their practice to this area of law, has a thorough understanding of the notice, pleadings, service, and trial procedures AND follows through.

The number one question that I am asked by landlords in this area of law is, “Why can’t I just lock my tenant out of the premises and avoid going to court”? The short answer is because it is against the law, but a better explanation is that taking the law into your own hands, referred to as “self help”, can lead to further complications and many times post eviction lawsuits against you. For instance, in using your self help remedy, suppose that your emotional charge, fostered in part by your belligerent tenant who is three months behind in his rent and your lender who demands your mortgage payment now, leads you to making defamatory statements against your tenant, or even worse, into an altercation resulting in battery charges filed against you. The legal system provides a remedy for your circumstances and in following the law, you will find the legal process to far outweigh the liability you could face by taking the law into your own hands.

Having said this, the first point I will make is that the only lawful means of evicting a tenant is by bringing an “unlawful detainer” action. If you believe that you tenant may have moved out, but are not 100% certain, you can send your tenant a notice of belief of abandonment. California Civil Code Sec. 1951.3 sets forth the requirements which must be met by the landlord in order to use this notice. If the tenant responds to the notice informing the landlord that they do not intend to abandon the property and provides an address where they can be served by certified mail in any action for unlawful detainer of the property, then the landlord must proceed with an unlawful detainer action.

A unlawful detainer, or UD, as they are called, is a summary proceeding, which means that it moves rather quickly through the court system, as opposed to other civil actions. If at some point, possession of your property is no longer at issue, because your tenant does move out, then your lawsuit cannot continue as an unlawful detainer action and your matter will be transferred to a general civil calendar. This is because “unlawful detainers” are for possession and if possession is no longer an issue, then money owed to you for back rent must be obtained in a general civil suit or small claims action.

A second point that you should understand about unlawful detainer court proceedings is that they can be procedurally difficult for a layperson because they require proper notice, pleadings, and service of the notices and lawsuit. This aspect of the lawsuit is not only time consuming, but “time sensitive”. Given the summary nature of the proceeding, the time periods between document filing is shorter and unless you are familiar with the proceedings, you can miss a deadline…or worse yet, LOSE!

This should bring you to the final point where you ask yourself…

  1. Do I want this tenant out as soon as possible?
  2. Do I have enough legal knowledge to evict this tenant myself?
  3. Do I have the time to learn?

Common Pitfalls
Some of the most common pitfalls that I see in this area of law are:

  1. Rental Agreements – Landlords with oral rental agreements/leases or bartered agreements (landlords promising free rent in exchange for improvements to be made by the tenant, no rent in exchange for house-keeping services, no rent because the roommate was a significant other, etc.). I also find lease agreements without important provisions (an attorney fees clause being the most prevalent), incomplete rental agreements or unsigned rental agreements.
  2. Defective Notices – Quite frequently, at the first consultation, I learn that the notice served on the tenant for late rent (3 day notice to pay or quit) is defective because it included late fees, was an outdated notice, or was improperly served.
  3. Tenant Defenses – It is not uncommon to learn (usually when the tenant files a response) that the rental property was uninhabitable, and therefore precludes the landlord from obtaining possession, or that the landlord accepted the demanded rent within the 3 day time period, which also acts as a complete defense.
  4. Botched Legal Documents – Too often I see what I refer to as “botched pleadings”. These are documents that have been prepared by individuals who are “unauthorized to practice law” (unsupervised legal assistants, friends or someone who knows just enough law to be dangerous…).These documents can cause a major delay or “start-over” position because they are so poorly drafted or confusing that the court would find them unacceptable.

The Law Office of Deborah F. Bayus provides professional, successful representation to residential and commercial property owners. Unlike many other firms, the entire eviction process is handled personally by Ms Bayus to be assured that documentation is comprehensive, well drafted, and in compliance with current CA law. Legal Fees may vary depending upon the circumstances of your individual case. Court Filing Fees can be viewed on-line at http://www.sdcourt.ca.gov/.

Legal services include, but are not limited to:

  • Free initial legal consultation
  • Review of legal documents including leases and rental agreements
  • Preparation of Legal Notices
  • Service of Legal Notices
  • Legal document preparation up to judgment for possession and/or money damages.
  • Prompt and current status reports
  • Trial
  • Collection, including post judgment proceedings, abstract preparation, filing and recording the judgment, and enforcement.
  • Small Claims guidance for landlords
  • Representation in Small Claims Appeals

The Law
A tenancy is created by a rental agreement. The rental agreement may be either oral or in writing, for a fixed term or on a periodic basis, such as a month to month or week to week. To be a lease, the agreement has to specify some time or event when it ends, such as a given date or specified period of time, like a year. If it is a fixed term of more than one year, the lease must be in writing.

A written rental or lease agreement should identify the parties to the agreement (landlord and tenant (s) by name, the address of the property, the rental period (start and end date), the date the rent is due, the day the rent is considered late, the amount of late charges, and it must be dated and signed by the landlord (landlord’s agent) and the tenant (s).

The terms of a periodic tenancy (e.g., month to month, bi-monthly, week to week, etc.) may be changed by the landlord by written notice delivered at least as long before it takes effect as the term of the hiring itself. Such a notice may be delivered by personal delivery, substituted service and mailing, or posting and mailing depending on whether the tenant is at the residence or his usual place of business at the time. {Civil Code Sec. 827}

Certain provisions are prohibited in leases. To view these prohibited provisions see {Civil Code Sec. 1953}

Landlords can charge no more than two months’ rent for an unfurnished apartment as a security deposit, and three months for a fully furnished unit. {Civil Code Sec. 1950.5}

A tenant security deposit can be used for security, cleaning, last month’s rent, pets, keys, waterbed, etc. California law only recognizes a unitary security deposit which is defined as any advance payment to the landlord to be used to remedy defaults in rent payments, repair of damage to the premises exclusive of normal wear and tear, cleaning when the tenant vacates, or to restore damage to the specified landlord personal property in the custody of the tenant where the rental agreement so provides. Landlords may not charge any non-refundable deposits or “fees”. {Civil Code Sec. 1950.5}

The law prohibits landlords from taking certain actions for the purpose of influencing a tenant to vacate a dwelling. The prohibited actions are set forth at {Civil Code Sec. 1940.2} An unlawful detainer action is the legal action taken by the owner of real property against the tenant to restore possession of the property to the owner.

If a landlord has an apartment building with 16 or more units, the landlord is required to hire an on-site manager for the building {Cal. Code of Regulations, Title, Sec. 42}

Tenants have the right to move without any notice if the rental unit is uninhabitable in any respect. {Civil Code 1942}

If a landlord of a residential dwelling unit has a contract for periodic pest control services with a registered structural pest control company, the landlord must provide the tenant that occupies the unit with a copy of the notice. {Civil Code Sec. 1940.8} and {Business and Professions Code Sec. 8538}

Commercial landlords have a duty to inspect the premises after the landlord has obtained a judgment for possession, but prior to the actual recovery of possession which occurs at the time of the eviction. {Stone v Center Trust (2007) 146, CA4th 1435}

A landlord who terminates a tenancy agreement with a tenant receiving financial assistance through the Section 8 program (Section 8 tenant) is required under Civil Code Sec. 1954.535 to give the tenant 90 days’ notice whether or not the property is subject to a local rent control ordinance.

When a lease obligation is “altered in any respect” without the consent of the cosigner, the cosigner is exonerated. {California Civil Code Sec. 2819}

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