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New California Law Regarding Bed Bugs

Recently California passed AB551 which addresses several issues about bed bugs.  Here is a brief summary of the new legal requirements:

  1.  Landlords cannot retaliate against a tenant for reporting bed bugs.  This is very similar to a tenant reporting any other type of maintenance–for example, you shouldn’t raise their rent because they report a problem.
  2. Landlords cannot show and rent units that they are aware have bed bugs.  This is self explanatory.
  3. Landlords will be required to include specific bed bug language in the lease for new tenants beginning July 2017 and for existing tenants January 2018.
  4. Landlords are required to give notice before entering a unit to inspect or treat bed bugs.  Tenants are required to cooperate.
  5. Landlords are required to notify the tenants of the result of a bed bug inspection that was conducted by a pest control company.  This has to be done within two days of the landlord receiving the report.

Bed bugs have become a challenging issue over the past few years.  Many people believe that they are the result of poor housekeeping by a tenant but that is not typically the base.  Bed bugs travel easily and are usually brought in from the outside, or travel from one unit to another attached unit.

Regardless of the source, the landlord is still responsible for eradicating the pests, which can take time and be a lot more costly than other pests.  If the landlord can prove that the tenant was the cause then the landlord can bill the tenant, but proving the source is a difficult task.  One of the most important things to remember with bed bugs is to act promptly if they are discovered to prevent further infestation.

Prejudgment Claims: What are they and when should they be used?

When an unlawful detainer lawsuit is filed in California, every adult residing in a property has the right to be heard in court. This is true even if the person is not a named resident, is not an authorized occupant, and even if the person is unknown to the landlord.

If an adult residing the premises was not named in the unlawful detainer lawsuit, that person can delay the lockout by filing a “third party claim of right to possession,” otherwise known as an Arrieta Claim, right before the lockout, causing a delay of at least two weeks.

If a prejudgment claim form is not served, and if an unknown occupant files a last minute third party claim right of possession, the lockout will not occur as scheduled. Instead, the court will set a hearing to determine whether the claimant should have been named as a party to the unlawful detainer action. Depending on the circumstances, the judge might require that the unlawful detainer process be started over again.

In the extremely unlikely event of an unlawful detainer, we always have our attorney, Kimball, Tirey, & St. John, file the pre judgment claim to avoid the potential issue of a third party claim.

If you are ever stuck with a tenant that needs to be evicted (unlawful detainer) be sure to use an attorney and to request that they file a pre judgement claim on your behalf. The additional time and money may save you from a lot of trouble later.

Can your tenant run a day care center in your rental home?

Short answer–Yes, provided they meet the legal requirements.

Long answer–
The availability of affordable child care has become a hot-button issue in San Diego, where the cost of living can make it difficult for families to get by unless both parents are working. For some families with children, the solution is to offer home-based child care for friends and neighbors who need it.

In California, the need for child care is considered so vital that state law gives renters the right to operate a family day-care business from the home regardless of whether their lease or rental agreement prohibits the “business use of property.” The law applies to all rentals, from single-family homes to apartments and condos.

Of course, renters who wish to run a day-care business out of their home must be sure they’re following the letter of the law and communicating the details with their landlord or property manager. For example, before anyone begins operating a child-care service, they must obtain a license through the California Child Care Licensing Program, which has a local office in Mission Valley. This license specifies the number of children the provider is allowed to watch.

Renters must provide 30 days’ advance notice to their landlord or property manager before they begin operating a child care service from the home. The state license application includes a form that renters can use to provide this notice.

It’s important to note that landlords are legally allowed to charge a higher security deposit to tenants who run a day-care business from the home. Landlords may want to charge a higher security deposit because of the higher risk that young children may damage the property. The California maximum limit on security deposits still applies (no more than double the monthly rent for an unfurnished unit, or triple the monthly rent for a furnished unit).

In addition to sharing licensing information with the landlord, the renter must also share evidence of financial responsibility. There are three ways to demonstrate financial responsibility: obtain liability insurance; secure a bond of at least $300,000; or get signed affidavits from each child’s parents acknowledging that they are aware of the lack of liability insurance or bond.

Beyond these key initial steps, child-care providers should be conscientious and respectful of their neighbors’ right to the quiet enjoyment of their own homes. Take steps to control or manage excessive noise, and be mindful of anything that could damage the property.

Can a Landlord Require a Tenant Speak English to Rent a Property?

Many landlords are concerned about having tenants who do not speak English.  Two issues I hear them express concern about are the lack of understanding of the rental agreement and the inability to communicate regarding necessary maintenance.

More than 25 million people in our country do not speak English fluently. HUD has clarified that although the inability to speak English is not a protected class, that it is closely aligned with national origin that is a protected class.

Housing providers are therefore prohibited from using limited English proficiency selectively or as an excuse for intentional housing discrimination.  The law also prohibits landlords from using limited English proficiency in a way that causes an unjustified discriminatory effect.

Discrimination lawsuits are a hot topic in the rental industry.  Recurring fair housing training is a great way to help protect yourself from a fair housing complaint or a discrimination lawsuit.

When do tenants forfeit their security deposit?

Over the years I have heard landlords say that since a tenant did something wrong that they are going to take their deposit. It doesn’t work that way in California.

Security deposits may be used to offset expenses the tenant incurred such as unpaid rent or damage to the property. However, even if they have breached a part of the lease, you can only charge the cost to correct the breach and if the tenant disputes those charges then the landlord must be able to substantiate the charges or the landlord will likely be liable not only for the amount of the deposit but also for bad faith withholding, also referred to punitive damages.

Remember to keep it business and do not use charges to the deposit to try to punish your tenant.  If you ever have a question on what to charge you can give me a call at American Heritage Properties.

Bill Ausen

Broer

It isn’t personal–it’s business

As a landlord, you may encounter tenants with some really sad stories. Be understanding, but above all, be firm and unwavering when it comes to sticking with your policies. They are there to protect you and your property. In addition, you should only have these types of discussions with people who are named on the lease. Family members or significant others may want to get involved, and while you should be respectful, only discuss details with the tenant.

When you live in your house it is your home, when you rent it out then it is your business. Keeping it “business” is not easy to do but a key to being a successful landlord.

What happens when a tenant won’t cooperating in showing after notice has been given?

Most rental agreements allow for entry for the purpose of showing the property to new prospective tenants.  So what do you do if the tenant does not cooperate?  Legally you can serve a 3-day notice to perform and force them to show.  However, if they still do not cooperate then your legal recourse is to start an eviction.   This might be the route that an attorney would recommend, but as a property manager, my recommendation is to wait until the tenant moves out to show.  Yes, you do lose some marketing time, but I feel that the drawbacks exceed the benefits.

I could go into detail with the drawbacks, but I don’t want to write a book here–if you are interested in hearing more, just give me a call at American Heritage Properties.

Bill Ausen

858-695-9400 x178

Time to end state funding for eviction defenses!

The California Apartment Association has urged the state Legislature to stop providing funding for defense attorneys to help evicted tenants drag out the unlawful-detainer process.

The practice has occured for several years under a state law that CAA believes should expire in 2017.

Under the Sargent Shriver Civil Counsel Act, defense attorneys receive money from the state to represent low-income Californians in a variety of legal areas, from evictions to custody disputes. Since 2011, the Legislature has spent $9.5 million annually on the program in seven areas across the state.

While the concept is laudable, it’s rife with abuse when it comes to fighting evictions.

With money provided under the Sargent Shriver Civil Counsel Act, some lawyers make false claims about property owners who are simply trying to regain possession of their properties from tenants who’ve failed to pay rent.

The most common tactic: Answer an eviction complaint by claiming the unit is substandard. Despite having no proof, tenants often stay put until trial.

Most landlords end up settling because they cannot afford the delays or legal fees associated with such a claim.

Unless the Sargent Shriver Civil Counsel Act is revamped to stop abuses in eviction cases, the California Apartment Association will continue to oppose refunding it next year.

***HUD Changes Rules with Criminal Background Checks***

HUD issued fair housing guidance this week in another effort to expand housing protection to individuals convicted of crimes.  On April 4, HUD issued a guidance document that could extend protections for individuals with criminal histories. This guidance builds on similar policies issued by HUD last year that only applied to public and federal-assisted housing.

The new guidance may prohibit the use of arrest records to deny residency.  Housing denials based on convictions may have to consider the nature and severity of the incident and often this will be based on a case by case basis. The guidance seeks to end blanket exclusions of prospective residents based on criminal history in favor of an approach that is more narrowly tailored to achieve property safety and security goals of neighbors and maintenance staff.

Those with criminal histories are not a protected class under the Fair Housing Act (FHA), HUD has crafted this policy using disparate impact theory. Disparate impact allows fair housing complaints to proceed where actions have a discriminatory result even if there was no intent to discriminate.

Who is responsible for carpet cleaning when a tenant moves out?

I think everyone agrees that the carpet should be cleaned before a tenant moves in. But who is responsible for cleaning the carpet when they move out? There are two different thoughts on this–the first is that tenants should leave it in the same condition as when they moved in, which is just cleaned. The second thought is that they are only responsible for wear on the carpet that exceeds normal and that normal use of the carpet, just like the walls, is normal wear.

The typical arena for resolving matters like this is small claims court–well, you are out of luck there because I have had cases where the judges have ruled that the tenant is responsible and then cases where they rule the homeowner is responsible.

At American Heritage, we started using a one year time limit as the determining factor and we have never had a legal problem enforcing this rule. If a tenant resides for less than a year then they are responsible for cleaning the carpet, but if they are there for more than a year then the owner is responsible.

This system of one year is more practical for the landlord. Once a tenant moves out there will be turnover work necessary. If the carpet is cleaned by the outgoing tenant, and before the turnover work is completed, then it will likely be walked on by maintenance people and get dirty again. Then when the new tenant moves in the carpet does not appear clean.

If the tenant is there for less than a year then there will likely be very limited turnover work necessary so it is less likely to get dirty again so it makes it more practical to have the outgoing tenant clean the carpet

There is now law that specifically says a landlord has to clean the carpet, but they do have to keep it in good and sanitary condition. But it is customary and expected that it be cleaned and in good condition for every new tenant moving in.

If you have any questions or thoughts about this, please let me know.

Bill Ausen
Broker
American Heritage Properties

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