Sonoma County Bankruptcy Lawyer Blog

SANTA ROSA (Sonoma County), CA -- The big news in landlord-tenant law is that President Obama has extended the Protecting Tenants at Foreclosure Act through 2014, This law gives tenants renting from landlords who are later foreclosed on 90 days (if they have a month to month lease) or the remainder of the lease (if there's a current written lease.)

The problem with the law has been that it talks about leases entered into before "foreclosure.' Well, in California (and probably many other states) there is no specific event called foreclosure. There are two events: there's the notice of default and the actual sale. Banks have argued that "foreclosure" begins at the notice of default, which I personally think is ridiculous, since, although it's required for foreclosure, it's a totally curable notice of a problem.

The new law now makes clear that "foreclosure" means foreclosure (sale), not notice.

Continue reading "Obama extends, clarifies protection for tenants in foreclosed homes" »

I'm about to file suit against a low-income housing complex in Healdsburg, CA on behalf of a tenant who was locked out by the property manager. Granted she was behind in her rent and the landlord had initiated unlawful detainer proceedings, but the law forbids self-help and my client was locked out while she was still in legal possession.

California law -- like most states -- imposes statutory penalties and attorneys fees for illegal landlord self-help, which is why, OwnerSecrets.com has an article detailing some of the troubles landlords have gotten themselves into.

The article points to a few cases from around the country. These examples have relatively low amounts, but the point is well-taken:

[In South Carolina], Hanna Abdulla engaged in self help eviction by changing the locks and removing William Spano's personal property from the premise to the sidewalk. Hanna Abdulla claimed that she thought the tenant had abandoned the premises. The court was not persuaded by her claim and awarded Spano $1,800 for the 3 months of rent expense he incurred to live elsewhere. The court further awarded $1,200 in punitive damages and attorneys fees.

[In Ohio] the landlord changed the locks just before the end of the month upon learning that the tenants had shut off the utilities and removed most of their belongings. The trial court awarded the tenants only $96.77 in actual damages (they had paid rent through the end of the month but were deprived of the use of the apartment, and this was the prorated amount). But the trial court further awarded $1,000.00 in punitive damages and $1,462.00 in attorneys fees.

The Chronicle reports that scam artists are moving into the fake-landlord business, finding abandoned homes (there are many) and renting them out. Eventually the realtor for the foreclosing bank comes around kicks them out.

"With a lot of foreclosures, the property sits empty for a long period of time," said Assemblywoman Fiona Ma, D-San Francisco. "What we're finding is that scam artists will come in, change the locks and advertise on Craigslist at a very enticing price. They tell people, if you want to get this deal you need to come back soon with cash for the deposit. People give them the money, sign a lease, get keys and a couple of days later the legitimate owner (an agent for the bank) comes and says, 'What are you doing here?' Then they're out whatever cash they've laid out."

Ma wants to make the crime a felony instead of a misdemeanor -- a good idea.

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.

8) 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!

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.

Here's one way to win a stay of execution. The San Jose Merc reports on a tenant who refused to leave when the sheriff showed up in Santa Cruz county.

The attempted eviction of a renter Tuesday led to an hours-long police standoff and closed roads before sheriff's deputies decided to leave the man inside the Vienna Drive home and seek an arrest warrant.

Sheriffs are expecting to see more tenant resistance to vacating from foreclosure sales, although not to the point of standoffs.

Most of the time they are amicable, but I think they need the proof of us actually showing up at the door to see it's really happening." Colleen O'Reilly, the civil process supervisor at the Sheriff's Office, said. "Reality becomes alive to them and they do go, but it seems, I think, lately that more people are hanging in there to the very end."

A San Francisco landlord tried to permanently evict longtime tenants after getting them removed temporarily in order to make serious repairs to their unit. The penalty? $1.2 million, a judgment that the California Court of Appeals just affirmed, SF Weekly reports.

The landlord used a city ordinance to give notice to the tenants that they had to vacate for three months to do repairs. When they didn't leave on time - they said they had no place to go unless he paid the relocation fees - he sued in unlawful detainer and won. Based on that case and a stipulation, they left and after three months expected to return. The landlord refused, saying they had "surrendered" possession.

They sued and won $1.2 million, the judge finding the remaining tenancy was 20 years and the rent amount was $381,825, the amount trebled under the city ordinance. The judge added another $300,000 in attorneys fees.

The case is Chacon v. Litke, 2010 Cal. App. Unpub. LEXIS 363

SF Weekly has a funny piece on some of the more extreme landlord-tenant disputes out there. This week, a landlord was so pissed off, he "wielded a large kitchen knife at the tenant and threatened to kill the tenant."

Illegal eviction? Yes, as well as constructive eviction, violation of the warranty of quiet enjoyment, illegal entry, assault and battery, and probably retaliation. Don't know what the tenant did, but in any case, this was not a good choice.

S.F. Tenants Union head Ted Gullickson also reports, among other stories:

A few weeks ago, a landlord set up a Webcam in a tenant's apartment. And when the tenant turned it off, the landlord came in the apartment and threatened the tenant physically.

Landlord-tenant law is actually a fairly technical area of law. In non-rent-controlled areas like Sonoma County, the law clearly and decidedly favors landlords. The law wants landlords to be able to regain possession of their property if a tenant isn't paying the rent or is otherwise abusing the agreement by which they are in possession. But the trade-off is that landlords are held to very specific requirements to obtain that eviction.

Specifically, eviction notices must follow specific rules, complaints must state facts in strict accordance with leases, court documents must be served properly, and so on. Here are a few notes on notices:

• 3-day, 30-day, 60-day notices. To evict a tenant for cause, a landlord must provide a three-day notice. The best cause is failure to pay rent ("Pay Rent or Quit" notice) but in general tenants can be evicted for violating most terms of the lease. In Sonoma County, if you're on a month-to-month lease (either by explicit arrangement, or because a term lease has expired) the landlord can evict you for no reason with 30 days notice (if you've lived there less than a year) or 60 days notice (more than a year).
• Option to cure First and foremost, the notice must give the tenant the option to cure the defect, if it is curable. Obviously, if a tenant is being evicted for failure to pay rent, payment of the back-due rent will "cure" the breach. If the problem isn't curable (tenant committed a crime on the premises), the landlord can simply order the tenant to vacate.
• Technical requirementsAccording to Code of Civil Procedure 1162, the notice has to give the name, address and phone number of the person to pay rent to, the days and hours rent can be paid if it's to be paid in person or the address if it's to be paid by mail.
• The rent demand. This is important. A "Pay Rent or Quit" notice can only demand the past rent due. It can't include late fees, interest, utilities, etc. It can only demand rent due. For this reason, the landlord must attach a copy of the lease to their complaint (which I'll discuss later) and the amount in the lease, complaint and notice need to be in agreement. If the landlord demands more than the proper rent, tenants will be able to demurrer to the complaint, dragging out the eviction process. For a tenant this can mean a chance to move out before an unlawful detainer action goes forward. For a landlord, it means that it will take another few weeks to get to a judgment against the tenant.