LEGAL CORNER
By
STEPHEN C. DURINGER, ESQ.
THE DURINGER LAW GROUP, PLC

I am a resident manager of a 16-unit complex. I received a telephone call from a person wanting to rent a unit in our small complex. I asked the prospective tenant if she had any children.

She got offended and told me, in no uncertain terms, that I could not ask that question. I replied by thanking her for her criticism and hung up the telephone. Is the prospective tenant correct that I cannot ask if she has any children?



Yes. Rather than ask how many children will reside in the unit, a more relevant question would be to ask how many occupants would reside in the unit. Most acts of discrimination in rental housing occur during the resident screening process.

For this reason, it is prudent to put your screening procedures in writing and to adhere to them strictly and impartially. All rental units must be available to families with children.

Furthermore, rules designed to discourage families from applying to rent may lead to the filing of discrimination complaints.

Minimize the pre-screening over the telephone; you never know if the caller is truly a prospective applicant or just a tester from Fair Housing hoping that you will say something actionable.

A young couple responded to a recent advertisement for a 2-bedroom apartment. The couple came over to the property and like always, I show everyone the very same unit. I really didn’t think these kids would fit in with my more mature residents, so I told them about the large apartment complex down the street.

I have recently attended a CHPP class put on by the local apartment association and I was told that my conduct was discriminatory. I was looking at the interest of the applicant; I truly didn’t think they would enjoy themselves. Was my conduct in violation of the anti-discriminatory laws?



Yes. You cannot steer certain prospective residents to another complex that you know they’d like better.

Do not attempt to discourage prospective residents by saying, “You would not like it here – it’s too noisy” or “There are mostly adults living here, so your children would not have anyone to play with”.

Additionally, be truthful about vacancies. Do not say that there are no units available when, in fact, there are units available. Clearly, this also applies to the sizes and types of units available.

Do not pretend that there are no available two-bedroom units, or no units with other desirable features, if there are.

Do not deliberately show certain prospective residents the least desirable vacancies on the property.

The key is fairness – it is illegal to show only the units that are dirty, damaged, or otherwise unattractive to prospective residents, while showing clean, attractive units to others.

I am the on-site manager for a 50-unit complex in Southern California. Recently, I had a single man enter the manager’s office and request an application to rent a unit. I have to admit that I had several vacancies, but the prospective tenant looked as if he had not bathed in a week.

Also, he rode a bike to the complex that had plastic bags on the handlebars stuffed with clothing and other odds-and-ends. Nevertheless, I don’t think he owns a vehicle.

Needless to say, the other residents would run me out of the complex if I let him in. I told him that we had no interest in renting to his kind. Was I correct in refusing to give him an application?



No. All prospective applicants who request an application must be provided one, no matter how unseemly the prospect may look or smell.

No matter how down and out the individual looks, he must be treated equally for the purposes of obtaining an application and qualifying for the rental.

Further, once the application is received, you are required to treat it as any other application that you receive. In order to prevent liability, do the right thing and treat each prospective resident equally and fairly.

You never know, that same disheveled “dead beat” may just be a part-time law student working at the local fair housing office.

Question
I live in my dad’s building, real close to the pier in Redondo. I guess you could call me the manager. When the surf is flat, I collect rent, make repairs, and generally keep an eye on the place.

Last month, I had to serve my first 3-Day Notice to Pay Rent or Quit. The February rent is $1200.00, and the tenant only came up with $400.00. So, I served him a 3-Day Notice for $800.00, for rent due from February 11 to February 29.

I figured the place is worth $40.00 a day and he had paid for 10 days worth of rent. I asked the manager of the building next door and he said that should be fine. But when I showed it to my dad, he freaked.

Does it really make any difference?

Answer
Yes. As a general rule, monthly rent is a sum due for a whole month of tenancy. The remaining balance of $800.00 is due for the entire month, not a prorated portion. Any payment received should not be accounted or prorated to specific days, but should be applied toward the total monthly installment due.

Thus, the remaining balance of $800.00 is for the period of February 1 through February 29. Some courts may find that by demanding $800 for the 19-day period from February 11 through February 29, you overstated the notice by $40, thereby voiding the notice. Additionally, it infers that the rent is not due until February 11.

Errors are commonplace when you try to prorate the rent on a Notice. For these reasons, any notice demanding a partial balance should be served for the entire month.

Question
One of my former tenants took me to small claims court over her security deposit. She claims that I was unreasonable in spending all of it, because she claims she had a cleaning crew come through the place before she moved out.

I don’t know if she used a cleaning crew or a wrecking crew, because the place was trashed. Anyway, the judge in the small claims court apparently liked her, and I guess I lost my temper at the hearing.

When all the smoke had settled, the judge ordered me to pay her! The little paper says that I have time to appeal this decision if I want to. I basically wanted to know what happens in the event of an appeal, and whether or not I could have a lawyer handle it.

Answer
A small claims appeal is a “trial de novo,” that is, a “new trial.” You essentially get another chance. By and large, the structure of the proceeding is essentially the same. However, on a small claims appeal, as opposed to the initial small claims proceeding, you may have an attorney represent you.

In your situation, if you’re afraid that you might lose your temper again, call a lawyer who will talk about the case with you. Of course, there are times when it’s simply more cost effective to “go it alone,” when the amount you’re fighting over is less than the cost of retaining counsel.

If this is the case for you, and you really feel that you were not treated fairly in the small claims court, then appeal the decision. Just remember to take a deep breath out in the hallway.

Question
I recently rented out a single-family home in Laguna Beach. When the two gentlemen residents took possession, I acknowledged that the premises needed some repairs.

However, the stuff that needed fixing was mostly cosmetic, nothing serious. Just a little painting, new doors and a minor repair to the dishwasher.

They made me a proposition. They offered to fix the items on their own, and then deduct it from the rent, to which I agreed.

After they finished, I reviewed their work, which I feel was not completed in a satisfactory manner. On the other hand, the tenants claim that the work was professionally completed, and that they should be allowed to deduct the cost of the repair from the rent.

Have I opened a can of worms by allowing the tenants to deduct the rent?

Answer
Yes. Keep tenants as tenants, and hire maintenance personnel to perform repairs. You have provided your residents a reason not to pay the rent in full.

Although this is a terrible management practice, it is all too common for many owners. Ideally, you would have documented your agreement in writing, kept it separate and distinct from the tenancy, requiring the tenants to pay their rent in full without deduction or offset.

Agree on a scope of work, and determine when payment would be due. When the work is performed, write your tenants a check, rather than allowing a deduction. Not only is it good business practice, but it also prevents many legal issues from arising.

If you blur the relationship as you have done here, you have expanded your tenant’s potential defenses as to why they should not pay the rent.

On the other hand, if the rent is treated as a separate transaction, there can be no excuses that the tenant is entitled to a reduction or a credit for work performed but not paid.

Also, if you have problems with the tenant’s work product, you can hash out those work-related issues while the tenant continues to pay rent.

Question
A couple moved into my rental unit behind our home a few months ago. Both tenants signed the rental agreement. The couple was polite and quiet, and never had a late payment.

Last week, all hell broke loose and it seemed like the entire police force was here. When the dust settled, the girlfriend was arrested because she attacked her boyfriend with a knife.

Apparently, the boyfriend had refused to fold his laundry immediately after taking it out of the dryer, and she went ballistic.

The next day, he asked me to change the locks and not to give a key to the girlfriend. The girlfriend is now apparently being held for psychiatric observation, and will probably not be released for some time.

Under these circumstances, can I change the locks and give him the only key?

Answer
No. As both signed your lease as co-tenants, they have equal rights of possession. You cannot deny one access without a court order.

If the couple is unable to work out their differences, you may want to legally terminate their tenancy. If one of the tenants acquires a restraining order preventing the other from entering the premises at any time, then you may change the locks.

As this is a very complex area of the law, and your rights and obligations may be affected by a single word, or lack thereof, on the Court Order, it is advised that you discuss this specific issue with your attorney.

Question
With the recent heavy rains, my apartments have experienced some roof leaks. Most of the leaks are minor, but there is a pretty big leak in one apartment.

This is of great concern to me, because the roof is less than five years old, and has never leaked before. I even had it inspected prior to the rainy season by a competent roof inspector.

The trouble is that the water leaked into one of my units, and apparently caused a substantial amount of damage. The resident claimed that his stereo equipment, television, computer, furniture, and clothing were ruined.

He even has pictures of the water dripping from the ceiling onto his stereo and television set. The resident is threatening to sue me if I don’t reimburse him for his losses.

What should I do? Am I responsible for the resident’s personal property losses?

Answer
An owner is not generally liable for damage caused to the personal property of a tenant, absent negligence on the part of the owner or his agents. Provided a licensed roofing contractor performed the roof installation, you maintained the roof adequately, had it inspected on a regular basis, and were not on notice of any prior problems, you should not be responsible for damage to the residents personal property.

Additionally, the tenant has an obligation to mitigate his damages when faced with a leaking roof. This basically means that if the leak was coming slowly through the roof, and the tenant knew about it, then he should have taken some measures to minimize the damage to his personal property.

The fact that the resident had time to grab a camera and take pictures of the dripping water, while letting his television set, stereo and other belongings get soaked suggest the resident failed to mitigate his damages.

In simple terms, the tenant should have moved his stuff, and grabbed a bucket, rather than watch it drip.

Question
I am a resident manager of a pretty big complex in Southern California. Lately, we have encountered problems with tenants hanging towels over the balcony to dry.

The water drips down on to other residents’ balconies, as well as the parked cars. Also, and I know it may seem trite, but I think it gives the complex a tacky look.

I think we should serve the tenant with some sort or warning, but I’m afraid that a judge would laugh at us if we tried to evict someone for hanging towels on the balcony. Is there anything I can do?

Answer
Yes. Depending on your tenancy documents, you have several options as to how you may wish to handle this situation.

Most communities will have rules and regulations prohibiting the hanging of towels on the railings, they are not only an eyesore; the moisture damages the wooden railings.

A warning letter with a copy of the rules and regulations sent to the resident generally solves the problem. Make sure that all communication you have with your tenant is in writing, and that you keep a record of all correspondence you send.

If the resident still doesn’t get it, provided your tenancy agreement prohibits hanging towels, you can serve a three-day notice to perform or quit, instructing the resident to permanently remove the offending towels.

If the tenant fails to comply with the Notice, then you may proceed with an unlawful detainer. Failure to follow up on your Notice sends the wrong message to the offending tenant.

The foregoing is presented in a general nature to address general legal issues. Specific inquiries regarding a particular situation should be directed to your attorney. The Duringer Law Group, PLC is one of the largest and most experienced landlord tenant law firms specializing in evictions and in the collection of debt, representing landlords exclusively. The firm may be reached at 714.279.1100 or 800.826.6994 or 877.387.4643. Visit our website at www.DuringerLaw.com for more information.