Richard C. Koman Attorney at Law
707.544.5354
1400 N. Dutton Ave, Ste. 21
Santa Rosa CA 95401
 |
Many renters live in uninhabitable circumstances. Here’s a quick view of what you need to protect your rights:
1. Determine if conditions are really uninhabitable. Think: water running into home, rat or insect infestation, mold, dangerous electrical, etc.
2. Be prepared to move out. If the situation is truly bad, you will call government officials and they may require you to move out.
3. Notify the landlord by phone and then in writing. The writing is crucially important – in a lawsuit you must be able to prove the landlord had knowledge of the conditions.
4. Give the landlord a “reasonable time” to respond. What is reasonable depends on the situation. A month is definitely reasonable but far less time is reasonable if the situation is actually dangerous.
5. If nothing is done, can you “repair and deduct?” You may be able to pay someone to fix the situation or fix it yourself and deduct the out of pocket costs from your rent.
6. When the rent is due, notify the landlord that you are withholding the rent. Put the rent money in an escrow account – a separate account that you won’t touch.
7. Wait for the landlord to sue you for nonpayment of rent. If you’ve followed these steps you should be in a good position to withstand an eviction. The judge will assess the fair market value of the premises given the defect and order you to pay the reduced rent (unless you have already paid more than that rent, in which case the landlord will owe you money.)
8. Most importantly, you’ll have preserved your rights to sue the landlord in superior court. If you think you have a case, please contact our offices at 707-544-5354.
From Eviction Defense Manual:
CCP 1174.21 provides that a landlord who brings an unlawful detainer action based on nonpayment of rent and who violates the habitability standards in CC 1924.4 must pay the tenants’ reasonable attorneys fees and costs.
Great article on iStock Analyst offering “12 Ways to Avoid Real Estate Lawsuits.” I love this article as an attorney who handles both sides, because the 12 steps boil down to a simple philosophy: Do right by your tenant, follow the law, be a professional! Here are some of the steps that prove that point:
5. DO NOT BE A SLUMLORD!
The better you care for your properties, the less likely you are to ever be sued. Neglecting one’s property to save a few bucks is just stupid. In the long run, you will pay more to restore it to shape, and it puts you at added risk for tenant lawsuits, as well as withholding of rent.
 Inspect your property on a regular basis for potential hazards.
Look for things like uneven pavement areas in the sidewalk or driveway, loose fixtures or ceiling fans, broken stairways and, of course, mold in any area of the home.
You cannot just rely on your tenant to report problems, as they may not be aware of things that could potentially harm someone. In fact, I have a separate form included in my lease that informs the tenant what they must do to prevent mold from forming in the home.
Hmm, I’ve never seen a landlord who gave tenants such a form. Good idea.
9) Do not allow your tenants to make their own repairs!
You may think that, by permitting a tenant to make simple repairs, you are saving a few bucks over hiring the local contractor or handyman.
But your tenant could fall off a ladder, shock themselves or even wrench their back, trying to fix those old rusty pipes or paint a wall.
Why do tenants make their own repairs? Either out of necessity, because the landlord is a slumlord who doesn’t take care of the place, or the landlord makes the tenant responsible for the first $25 or $50 of any repairs, and so they try to save that money.
To avoid this, I charge my tenants ZERO for repairs, unless it is obvious that they are to blame for the repair being needed (i.e., a hole in a wall, or a broken door or equipment). Then the money comes out of their security deposit.
But the last thing I want is a lawsuit because the tenant suffers an injury, just to save me $100!
I do take exception to this one, however:
3) Never hire a relative, friend or colleague to manage your property!
Putting your Aunt Betty in charge of managing your property because she lives three doors away is a great way to open yourself up to litigation when Aunt Betty unwittingly does something illegal.
In California, apartment buildings use nonprofessional, live-in property managers as a matter of course. I don’t know what kind of training some of these property managers get, but they are a key source of landlord misdeeds. And for single-family homeowners, Aunt Betty works, so long as you retain an attorney to set her straight.
The advice of this column is pound-wise, penny-foolish! Individual landlords would save themselves – and their tenants – a lot of heartache if they would retain a landlord-tenant attorney upfront to review leases, background check tenants, consult with as issues come up, and handle evictions when necessary. In the long run, it would be a lot cheaper!
How much pot can you possess courtesy of a medical marijuana card? The answer used to be straight-forward: eight ounces of dried pot, 6 mature or 12 immature plants.
No more. Last month the California Supreme Court ruled that those limits, approved by the Legislature in 2003, are unconstitutional. Every person can have a “reasonable” amount for their individual needs, the Court said. That could mean some people like Patrick Kelly, the plaintiff in the case, could have way more than the above limits. It also means that a whole bunch of people who have med-mar cards for nothing more serious than headaches or stress could be in violation for having less.
The decision does raise a lot of questions for law enforcement. Cops don’t want to arrest, nor the DA prosecute, cases where the person has a right to the pot under state law. Doing so is obviously bad for the person arrested and the jail and court system. Some kind of guidelines could be issued for the normal case, while recognizing that each case must be decided individually. Obviously, cops aren’t qualified to say how much is reasonable for each individual. I think the end result is that arrestees must clearly hire counsel to argue the facts of how much they’re entitled to.
Sebastopol, California passed a “social host” law this week, the Press Democrat reports, which could expose parents who allow drinking – or should reasonably have known drinking is happening on the premises – to criminal prosecution.
“This legislation would endanger the lives of my friends. Right now teenagers are drinking in bedrooms and garages, in back yards and guest houses. If there were a solution, that would be great. That solution, however, isn’t to kick the intoxicated teens out of their houses,” said Gordon Allen, an Analy High School junior.
“Pass this legislation and you cling to a naive misunderstanding of the Sebastopol teenager telling yourselves that if we don’t give them a haven, they won’t drink,” Allen said.
Above: The Soviet-style hulk that is the Hall of Justice
The Press Democrat reports that a new $240 million criminal courthouse is in the works, to be built either on the site of the current downtown Post Office or on Administration Drive, near the “overcrowded and unsafe” white elephant called the Hall of Justice.
It seems the ultimate decision belongs to the state courts administrator but city officials were taken aback that a downtown location is in the works. The article says construction will begin in 2012 and be complete by 2014.
Gary Nadler, presiding judge of Sonoma County courts, said court staff and the public can’t afford to delay.
“The way things presently stand, we’re more likely to suffer a shooting, stabbing or some other traumatic event because of our inability to provide the level of security that is required,” he said. “The safety of the public, courthouse staff and the judiciary must come first.”
The state court is relying on feedback from a Public Advisory Group made up of 11 officials, including Jose Obregon, director of the county’s Department of General Services; Jocelyn Lundgren, Santa Rosa’s redevelopment manager; Court Executive Officer Jose Guillen; and Deputy Court Executive Officer Cindia Martinez. Nadler and two other Superior Court judges — Rene Chouteau and Robert Boyd — are on the panel, as are four private attorneys: Chris Andrian, Harry Allen, John DeMeo and Patrick Broderick, who is dean of the Empire Law School.
A downtown location for the criminal court is hands-down the best possible choice. With lawyers, jurors and those attending court coming downtown, local eateries and shopping places could see a jump in business. More importantly, the decision to move the courthouse out of Courthouse Square back in the 1960s was exactly the kind of decision that sucked the life out of downtown Santa Rosa. Only the decision to slice downtown in half with US 101 and creation of the the Santa Rosa Marketplace, were more damaging to the city’s life force.
I recently had an appearance in Ukiah, and I have to say, while the interior of the old courthouse is no great shakes, there is a lot to say for a city with a downtown courthouse. Coffee shops, restaurants and pubs are all within a block of the court, there is plenty of sidewalk traffic. Bringing the legal process to downtown Santa Rosa would be a great choice!
Bankruptcy filings in January 2010 were up a whopping 21% over last January, according to an automated review of court records, Bloomberg reported.
The number one state for personal bankruptcy: Nevada, followed by Georgia, Tennessee, Alabama, and Michigan.
Personal bankruptcy makes the most sense when done at the beginning of financial difficulties, not at the bitter end, as several attorneys tell the Kalamazoo News.
“Most people, being honest and decent, exhaust every possible resource and it’s only when they’re at the bitter end they come in” said Paul Davidoff, a Kalamazoo bankruptcy attorney. “Only when they are down to a couple of thousand left, and they can see the writing on the wall, do they think about bankruptcy.”
If people would realize that bankruptcy is a way to protect assets so that you can make a fresh start, rather than just calling uncle when they’re already down and out, they would be a lot better off.
“We have been traditionally taught in America two things. The first thing we have been taught is that if you work hard, if you work harder than others … you will succeed. The second thing we have been taught, taught throughout past generations, is that the future will be better than the past,” attorney Steve Rayman said. “The difficulty that we have today is that neither of those two premises are true.”
As with so many things, a consultation with a lawyer when a problem first appears leaves so many more options – including bankruptcy – available.
Former clients of mind posted this nice comment on Avvo.com. This was a breach of contract matter where a small business had been forced to close up shop in the recession, thus breaching a long-term commercial lease. Here’s what they said.
Our business was forced to close its doors during the economic downturn, and Mr. Koman assisted us in a breach of contract action filed by the commercial landlord. Throughout our dealings with him, Mr. Koman was calm, knowledgeable, and did a good job of keeping us informed of the case. We felt he had our best interests in mind, and would recommend him to anyone facing a similar legal action.
Read more client reviews on Avvo.
I posted another legal guide at Avvo.com. There are so many people I talk to who have suffered serious problems but they failed to create a paper trail of providing proper notice. This makes it very difficult to take their cases, so I am urging tenants to get some kind of counsel, from your Legal Aid or the SF Tenants Union, before taking action or failing to take action. Check it out on Avvo.
|
Disclaimer The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.
|
