Tag Archives: Landlord

Ensure Proper Notice When Filing an Unlawful Detainer

In the case of Long Beach Beach Brethren Manor, Inc. v. Leverett, LLBM appeals the judgment in its unlawful detainer action in favor of the tenant. Landlord contends the judgment should be reversed because the trial court erred in granting Tenant’s motion for summary judgment. Landlord originally filed its unlawful detainer on August 11, 2014, alleging defendant was a tenant, and that he failed to vacate the property after being given a 10-day notice to quit. The attached notice indicated it was served on defendant on July 29, 2014, based on an “incurable breach” of the United States Department of Housing and Urban Development (HUD) rental agreement. The notice required Tenant “to refrain from disturbing the rights and comforts of other tenants.”

The notice stated that the Tenant breached the portion of the agreement by hitting another tenant on the shoulder three times, and by engaging in a physical altercation with a different tenant. The complaint for unlawful detainer requested possession of the property, forfeiture of the rental agreement, and damages. Tenant filed an answer on August 13, 2014, generally denying the allegations with some affirmative defenses.

Tenant then filed a motion for summary judgment, which stated that there was no triable issue of material fact regarding whether the notice to quit gave Tenant enough notice. Tenant argued the agreement should be interpreted to require 30 days’ notice to quit, and since only 10 days of notice were provided, Landlord’s unlawful detainer action was premature and fatally defective because of the inadequate notice.

The initial one-year lease had expired, and the agreement had been renewed for successive one-month terms there afterwards. Tenant used paragraph 9(b)(1) of the Lease, which stated that the landlord may end the agreement effective at the end of any successive term, “based upon either material noncompliance with this Agreement, material failure to carry out obligations under any State landlord or tenant act, or other good cause. When termination of the tenancy is based on other good cause, the termination notice shall so state, at the end of a term and in accordance with the termination provisions of this Agreement, but in no case earlier than 30 days after receipt by the TENANT of the notice. Where the termination notice is based on material noncompliance with this Agreement or material failure to carry out obligations under a State landlord or tenant act, the time of service shall be in accordance with the previous sentence or State law, whichever is later.”

Defendant brought forth the basis for the termination was defendant’s alleged noncompliance with the section of the agreement. Defendant was thus entitled to 30 days of notice, because this amount of time provided for more time for termination than was set forth by State law, which is only 3 days of notice. Plaintiff filed an opposition to this, contending the motion should not be allowed due to the agreement being interpreted as requiring only the notice required by State law of 3 days of notice.

The court then granted the defendant’s summary judgment motion because it had determined there was no triable issue of fact with respect to the 30 days of notice being required under the agreement. The court rendered judgment in defendant’s favor. Court of Appeals also affirmed the judgment.

This case is important for landlords to note that they should comply with whatever the terms of the lease agreement allow. The terms of the lease agreement can sometimes even supersede State law, so it is important to review prior to serving any notices on tenants.

HOA Can Regulate Short Term Rentals

The California Court of Appeal recently found that a HOA can adopt reasonable rules and impose fees related to short term rentals of condominium units. Watts v. Oak Shores Community Association provides some guidance on an expanding area for landlords and property owners as to the proliferation of short term rentals, particularly in high demand vacation spots.

Oak Shores is a single family common interest development governed by a board of directors and regulated by its Covenants, Conditions, and Restrictions (CC&Rs). Oak Shores regulated short term rentals by prohibiting any rental period less than seven days, charging a $325 fee on homeowners who rent their units, prohibiting the number of automobiles, boats, and other watercraft that renters could bring into Oak Shores, and charging a mandatory garbage collection fee, boat and watercraft fees, building permit fees, and property transfer fees.

Oak Shores prohibited any homeowner from renting their property for less than seven days because various Board members and staff testified that short term renters brought a number of issues, including parking, noise and use violations, a lack of knowledge of the rules of the HOA and abuse of the facilities. The HOA also found that short term rents caused more issues and were more disruptive than other long term residents.

The $325 fee was charged to homeowners who rented their homes on a short term or long term basis; however, fees for watercraft use were only charged to short term rentals. The HOA testified that short term renters were only 8% of people entering the HOA but brought in 37% of the boats.

The trial court agreed with the HOA that it could reasonably restrict short term rentals. The Court of Appeals agreed because the HOA had reasonably restricted short term rentals by studying the use of facilities by short term renters. The Court of Appeals also found that the $325 fee charged to homeowners who rented their homes was reasonable in light of Civil Code Section 1366.1, which requires a reasonably close relationship between the contested fee and and the cost it is intended to offset.

This case has important implications for HOAs looking to regulate short term rentals and homeowners looking to rent their units on a short term basis. Please contact Attorney Anthony Marinaccio at 818-839-5220 for more information.

Tenants in Single Family Homes in Los Angeles

Steve Lopez from the L.A. Times had recently wrote about a family in Echo Park being displaced as a result of a new development being built on their property. The family who had lived there for 31 years is being “asked” to leave. I quoted “asked” because if they are not out by a certain date, the landlord can start an unlawful detainer, or eviction, against them. The article is “After 31 Years in Echo Park, victims of displacement by gentrification.”

The Los Angeles Rent Stabilization Ordinance, the formal name of Los Angeles’ rent control ordinance, is aimed to protect renters living in rent-controlled apartments. However, the issue with the Echo Park family in the article is that the Los Angeles Housing and Community Investment Department has determined that the family lived in a single family home. Single family homes do not fall within the protections of the Los Angeles Rent Stabilization Ordinance. This means that tenants in a single family home in Los Angeles can lawfully receive a 30 or 60 Day Notice to Quit and they can have their raised at any time (within California law).

The landlord for the property made an offer for the family to move out and provided $12,500 in “relocation.” However, a tenant in a single family home is not entitled to any relocation under the Los Angeles Rent Stabilization Ordinance. Often times developers and landlords offer tenants in single family homes to pay some “relocation” in order to avoid the eviction process; however, they are not required to pay it.

For both landlords and tenants, it is always important to know whether your property in Los Angeles is rent controlled or not. A call to the Los Angeles Housing Department may be able to answer that question quickly.

Why a Landlord Should Act Quickly

Recently, a Santa Monica landlord learned that a landlord should quickly move to evict a tenant who has violated a term of a rental agreement or lease. By waiting too long to file an unlawful detainer, a tenant has a better defense that the landlord waived the breach or is “estopped” from pursuing the eviction.

In this case, the landlord filed an unlawful detainer, or eviction lawsuit, against a tenant for improvements that the tenant had made in the 1990s. The rental agreement prohibited a tenant from altering the premises without the landlord’s permission. These provisions that prohibit alterations without prior landlord approval are very common and I find them in nearly every rental agreement I see. Perhaps the landlord wanted the tenant evicted because his rent controlled apartment was only rented for $800/month when the fair market value is approximately $1,700/month. However, the ulterior reasons for the evictions should be irrelevant. Rather, the eviction was based upon a Three Day Notice to Perform or Quit.

The jury after hearing the unlawful detainer trial found that the landlord had waived her rights to file an unlawful detainer because the improvements had been performed over twenty years ago. A waiver is a voluntary relinquishment of some known right or privilege. Here, the landlord relinquished her right to require her approval for a tenant’s improvement because she had allowed the improvement for over twenty years previously.

This story provides a warning to landlords who wait too long to enforce a right under a contract. If a landlord waits years before actually enforcing a contract, then arguably the landlord has waived that right.

The full story can be found at the Santa Monica Mirror’s website here.

Are you discriminating against Section 8 Tenants?

I follow a blog for real estate investors, Biggerpockets.com. Today, it had an article 8 Myths about Section 8, Corrected: Here’s the Profitable Truth. Landlords often have many questions about renting to tenants who received Section 8 subsidies. The basics of a Section 8 tenancy are that a tenant and the landlord enter into a rental agreement, and the local housing authority pays the landlord a certain amount of subsidy for that rent directly to the landlord. Thus, there are actually two contracts: (1) the rental agreement between the landlord and tenant and (2) the agreement between the housing authority and the landlord.

Can a Landlord Intentionally State “I do not accept Section 8 tenants?”

The basic answer to this question is yes. A landlord is not required to accept a tenant who receives a Section 8 subsidy. Donald Sterling of the Los Angeles Clippers fame brought this issue to the California Court of Appeals. In Sabi v. Sterlingthe California Court of Appeals found that a landlord could intentionally refuse to rent to tenants who received Section 8 subsidies. Sabi v. Sterling (2010) 183 Cal. App. 4th 916. This case found that a landlord does not violate the Fair Employment and Housing Act or the Unruh Civil Rights Act by refusing to rent to a tenant who has a Section 8 voucher.

Although this is the legal reasoning behind refusing to rent to Section 8 tenancies, a landlord still cannot refuse to rent to a tenant for a discriminatory reason. Further, a landlord may want to read the article from Biggerpockets to see some of the reasons you may want to rent to Section 8 tenants.

Can I use my deposit for last month’s rent?

I get asked this question a lot, and the Los Angeles Times recently posted the same question on its website. No, a tenant cannot use a security deposit for last month’s rent. If a tenant proposes to use the security deposit as last month’s rent, a landlord has the right to serve a Three Day Notice to Pay Rent or Quit for the last month’s rent.

It is important to note for a landlord that rent is late the day after it is due. For example, if on November 20, a tenant tells a landlord that he will not pay December’s rent and provides written notice that he will be out on December 31st, a landlord cannot serve a 3 Day Notice to Pay Rent or Quit until December 2nd if rent is due on the first of the month.

In fact, if a tenant makes such a proposal to pay last month’s rent using a security deposit, a landlord should not agree and serve a 3 Day Notice to Pay Rent or Quit after rent has become due. This is beneficial for several purposes because it prevents a tenant from not actually moving out after providing a 30 Day Notice. It also allows a landlord to use a tenant’s security deposit for actual damages to the unit.

Use the Web for Rent Payments? Landlords Beware

In a recent Los Angeles County Appellate Division decision, the Court found that a landlord must put a physical address for a tenant to pay rent on a 3 Day Notice to Pay Rent or Quit. Foster v. Williams provides some insight into how a landlord must comply with the Code of Civil Procedure when filling out a Three Day Notice to Pay Rent or Quit.

Plaintiff, Landlord, filed an unlawful detainer action based upon a 3 Day Notice to Pay Rent or Quit. The Notice was served on Defendant, Tenant. The 3 Day Notice to Pay Rent or Quit stated that rent was to be paid on a website and provide instructions on how to make a payment on the website. At trial, Tenant argued that the Three Day Notice was defective because it did not comply with Code of Civil Procedure Section 1161(2), which requires an “address.” Landlord argued that  a web address falls within the term “address” while Tenant argued that “web address” did not fall within “address” because a physical address was required. Tenant had been paying rent for about one year online through the website.

At trial, the Court agreed with Landlord, so Tenant appealed. On appeal, the Court found that a web address does not constitute an address for a 3 Day Notice. Section 1161(2) did not intend to include web addresses because an address is listed in order for a tenant to pay rent physically to a person, not via a website.

Although 1161(2) allows for electronic payments or payments made directly to an account, it does not account for web payments. Further, 1161(2) also allows for mailing of rent payments if physical delivery is not available. Again, it does not provide any criteria for web payments.

A web payment is not an electronic payment under Section 1161(2) because the 3 Day Notice did not provide for the language that states an electronic procedure has already been established. Without that statement, a web payment option would be invalid in a 3 Day Notice.

Since the Court found that the 3 Day Notice to Pay Rent or Quit was defective, tenant ultimately won the case. This case provides important reasons why a 3 Day Notice must be properly drafted and served because if it is found to be defective, the entire unlawful detainer is defective.

Further, within the City of Los Angeles, a landlord cannot require a tenant to pay rent electronically or online. A landlord must provide an alternative option to paying rent online or electronically.



City of Los Angeles Warning Airbnb Hosts of Their Obligation to Pay City Taxes

The Los Angeles Times reports that the City of Los Angeles is preparing to send Airbnb hosts warning that they must pay the City’s hotel tax.

This is an interesting issue as Airbnb initially started as a way for homeowners to rent a room in their home or to rent their home while they were on vacation. However, there have been some landlords, particularly in the City’s Westside and beach communities that are using entire units or homes solely for Airbnb rentals.

Although you may not consider an Airbnb rental to be a “hotel” in the traditional sense, the City of Los Angeles likens it to a short term rental, which is basically a hotel.

The Los Angeles Times article, “L.A. to Warn Airbnb hosts to start paying hotel-type taxes” provides more detail on this issue.

Los Angeles Considering Expedited Process to Legalize “Illegal Apartments”

A huge issue facing landlords within the City of Los Angeles is renting units that may not have a certificate of occupancy. Often these units are garage conversions, converted apartments, or makeshit homes. Under the Los Angeles Rent Stabilization Ordinance, a landlord can only rent a unit that is lawfully registered with the City. This means that it has a certificate of occupancy from the Department of Building and Safety and it is properly registered with the Los Angeles Housing Department.

The Los Angeles Times reports that tenants and landlords may be working together to attempt to provide “amnesty” for illegal units. The issue that often arises is that “illegal units” provide affordable housing, but once discovered by the City of Los Angeles, these units must be vacated.

In order to vacate units, landlords are often required to pay relocation assistance. However, tenants are unable to find equivalent affordable housing. This interesting unity of landlord and tenant groups may be what Los Angeles needs to address unlawful units within the City.

“Landlords, tenants unite on amnesty plan for illegal apartments” provides more detail on this issue.

What is the Ellis Act?

The Ellis Act is a California law that allows landlords to get out of the rental business by taking their rental units off the market. The Ellis Act prohibits local governments from requiring a landlord to continue to rent apartment units, although local governments could enact regulations to control how landlords do so. Generally, the Ellis Act is invoked when a rental property will be sold as individual condominiums (condo conversions) or if the rental property will be destroyed and built into a new development.

It is important to note that a landlord who invokes the Ellis Act to evict tenants must do so genuinely. A landlord would be subject to civil liability, including punitive damages, if he attempts to evict low paying tenants under the Ellis Act and then rerent the property.

The City of Los Angeles provides a framework for landlords and developers to invoke the Ellis Act in order to evict tenants. It is a long process that can take longer than one year to complete. Landlords and developers interested in starting an eviction under the Ellis Act must do so as early as possible.

The process begins by filing a Notice of Intent to Withdraw Units from Rental Housing with the Los Angeles Housing Department. Then, a landlord must file with the County Recorder a document summarizing the non-confidential provisions of the Notice of Intent. Within five days of filing the Notice of Intent, a landlord must serve all tenants the Notice of Pending Withdrawal. 

Tenants are entitled a 120 Day Notice from the date the Notice of Intent was filed with the Los Angeles Housing Department. However, senior citizen tenants (age 62+) and disabled tenants are allowed to remain in a unit under the same terms for up to one year.

This summary provides a very brief introduction to the Ellis Act within the City of Los Angeles as the procedures can sometimes be a little more complicated and time consuming.

The City of Los Angeles Housing Department has a bulletin that provides information regarding Ellis Act evictions that can be found here, Procedures for Withdrawing Occupied Units from the Rental Housing Market.

Please contact Attorney Anthony Marinaccio if you have questions regarding an eviction under the Ellis Act or if you are interested in pursuing such an eviction at (818) 839-5220.