Duringer-Legal Corner | November 23, 2010
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22 November 2010
A couple issues arose. First, the buyer is doing his inspections of the units and we gave all of the residents plenty of notice of when the buyer and his inspection people would visit each unit. My manager served written notices to all and provided well over the required 24-hour notice; most got at least three days prior notice.
Well, Mr. Thinks-He-Knows-It-All in one of the apartments just sent me a letter warning me that if anyone enters “his” apartment he will sue everyone. He says he used to go to law school; that he knows his rights; says I can’t go in. Needless to say, this was unexpected.
I have the inspectors, appraisers and the buyer scheduled to visit at the same time. The buyer is very hands-on and says he must personally inspect each unit. If the resident doesn’t let me in, it may jeopardize the sale. What do I do?
A: Mr. Thinks-He-Knows-It-All is mistaken. California law provides that residents must allow access to and entry for appraisers and prospective purchasers, among others, upon service of at least 24 hours notice. His failure to allow access violates California law and is a breach of your rental agreement.
Your resident needs a little “prompting.” Prepare a Three-Day Notice to Perform Condition or Covenant directing him to comply with California law and the terms of your agreement by allowing access at the already noticed date and time. Alternatively, provided his tenancy is a periodic tenancy, and your property is not subject to rent control, a notice of termination of tenancy can be a great motivator.
Prepare a Notice of Termination, and instruct your manager to serve it at the same time as the Notice to Perform or Quit. Let the resident know that provided he allows access as scheduled, you will rescind the notice of termination. But if he doesn’t, he should start packing. Given the alternatives, compliance almost always occurs.
In the unlikely event he continues in his refusal, you have several options. Typically escrow instructions will preclude your evicting a tenant without the buyer’s consent once escrow is opened. Check your escrow instructions to see if this applies. Most buyers would have no problem and will consent to his removal.
The buyer and lender can be appeased by agreeing to a hold back in escrow of sufficient money to effect any needed repairs to the unit and/or to cover eviction costs. Escrow instructions can be amended to allow for reimbursement for repairs and costs or a return of the retained money to you.
