Legal Corner

Bed Bugs, EFT, Gyms

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Q. I understand that there is a new requirement that Housing Providers must follow certain procedures and provide a notice to our residents regarding bed bugs. Also, are we required to include new language in all of our leases as well? What do I need to do to comply?

A.
Bed bugs are very much in the news today. There has been a huge increase in their presence and a dramatic increase in litigation filed by tenants who have experienced bed bugs first hand. Because of this, the California legislature has responded with the following new statutory requirements:

Civil Code §1954.602 prohibits a landlord from showing, renting or leasing a unit that the landlord knows has bed bugs. It does not require a landlord to inspect for bed bugs, but if a bed bug infestation is apparent, the landlord is considered to have knowledge of bed bugs in the unit. To protect themselves from future bed bug lawsuits, landlords should have infested vacant units treated and have an approved pest control company issue a bed bug clearance and maintain it on file for all such units.

Civil Code §1954.603 requires that a specific bed bug notice be given to new tenants on and after July 1, 2017 (with specific language listed under “Information about Bed Bug Laws” in at least 10 point font) and to existing tenants by January 1, 2018. Landlords must notify tenants about the procedure for reporting suspected infestations to the landlord. The following is the required language:

“Information about Bed Bug Appearance: Bed bugs have six legs. Adult bed bugs have flat bodies about ¼ of an inch in length. Their color can vary from red and brown to copper colored. Young bed bugs are very small. Their bodies are about 1/16 of an inch in length. They have almost no color. When a bed bug feeds, its body swells, may lengthen, and becomes bright red, sometimes making it appear to be a different insect. Bed bugs do not fly. They can either crawl or be carried from place to place on objects, people, or animals. Bed bugs can be hard to find and identify because they are tiny and try to stay hidden. Life Cycle and Reproduction: An average bed bug lives for about 10 months. Female bed bugs lay one to five eggs per day. Bed bugs grow to full adulthood in about 21 days. Bed bugs can survive for months without feeding. Bed bug bites: Because bed bugs usually feed at night, most people are bitten in their sleep and do not realize they were bitten. A person’s reaction to insect bites is an immune response and so varies from person to person. Sometimes the red welts caused by the bites will not be noticed until many days after a person was bitten, if at all.

Common signs and symptoms of a possible bed bug infestation:

  • Small red to reddish brown fecal spots on mattresses, box springs, bed frames, linens, upholstery, or walls.
  • Molted bed bug skins, white, sticky eggs, or empty eggshells.
  • Very heavily infested areas may have a characteristically sweet odor.
  • Red, itchy bite marks, especially on the legs, arms, and other body parts exposed while sleeping.

However, some people do not show bed bug lesions on their bodies even though bed bugs may have fed on them.

For more information, see the Internet Websites of the United States Environmental Protection Agency and the National Pest Management Association.” Civil Code §1954.604 requires landlords to conduct follow up treatment not only of infected units, but all surroundings until bed bugs are eliminated.

Civil Code §1954.605 bed bug laws require landlords to notify tenants within two business days of receiving the pest control operator’s findings after an inspection. When infestations are found in common areas, the landlord must provide the notice to all tenants. This means that if a landlord finds bed bugs in a common area, then all residents in the building must be notified of such a finding.

Q. I encourage my tenants to pay rent by electronic funds transfer. I use the apartment association’s lease, which states “If Resident fails to pay the rent in full by the end of the 3rd day after it is due, Resident shall pay a late charge of $100.00 as additional rent...” One tenant seems to initiate the EFT later than the 1st day of the month, but I can’t be certain of what day it is, and if that day is a week-end or holiday, I see no sign of her pay ment in my bank until the following bank business day. That can mean I see the payment on the 5th or 6th day of the month. Is her rent late? When is rent legally considered paid? If my tenant gives me a check on the 3rd day of the month, and that day is a Saturday and I deposit it that day, I can see a pending transaction immediately, but the funds are not available to use until the next bank busi ness day. With a check, I know when the trans action is initiated and completed. With an EFT, I only know when the transaction is completed.

A.
When rent is paid by EFT, it is considered received by you when it is credited to your account. It is immaterial when the tenant initiated the transfer, the date which the funds actually are credited to your account is controlling. In the case of a check or draft delivered to you, it is the date which you actually receive the actual check or draft. You have control over the funds/payment instrument upon deposit of funds or receipt of the actual check. Of course the specific terms of your lease control. Most leases require that the resident “deliver” the rent to you on or before the first. This eliminates the old “check is in the mail” excuse. However, some “creative” landlords insist on writing their own “special” terms on their leases, and if those special terms require the tenant to “mail the check to a PO Box” or put it in a “drop box,” then these terms may alter the date of payment, and in some cases may shift the risk of loss in the mail to you the landlord rather than the resident. Additionally, if the account number provided for the resident to make his EFT to is incorrect and the delay is caused by the landlord’s incorrect instructions, then the resident will be provided additional time. For these and many other reasons, it is very important not to alter the language provided to you in your apartment association forms, they typically anticipate these types of situations.

Q. I have an apartment building with a small workout area, kind of like a mini gym. There are a few exercise machines, a treadmill and some exercise mats. I’ve been worried about somebody hurting themselves and then suing me, claiming I was somehow negligent in maintaining the exercise equipment. I’m thinking about just turning it into a storage room. Is there any way I can keep the exercise room, the tenants really enjoy it, but eliminate the risk of being sued for negligence?

A.
Until just a few years ago, the answer was no. Landlords, by statute, could not add exculpatory language to their leases prohibiting residents from suing them for negligence relating to the rental property. A couple of appellate court rulings just might effectively change that. The courts have ruled that the prohibition should only relate to the core rental unit, and does not necessarily extend to a non-core amenity, such as workout gyms, a recreation room or other entertainment amenity. A release and waiver of liability for injury suffered in the apartment itself, the garage or parking area, a walkway or corridor would be ineffective, however, a properly drafted release and waiver of claims for injury suffered in a gym, recreation room or entertainment facility, or other non-core amenity would be effective.


This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 255,000 landlord tenant matters throughout California, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.

Violent Crime, Parking Spaces

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Q. I recently bought a building in a pretty rough neighborhood. Seems like a day doesn’t go by without some sort of violent crime nearby. Just the other night, there was a shooting just down the street. I buy paint by the truckload to cover all of the graffiti and tagging on the building. I have a couple of vacancies now, and I don’t know if I have to tell them about all the stuff going on. If I did no one would rent. What do I do?

A.
Crime, unfortunately, is a fact of life in many communities throughout Southern California. When asked by the prospective resident about crime in the area, refer them to the local police department for statistics. Be careful not to portray your building as a “security” building or advertise it in any way that may create a false sense of security or safety. If your property provides an increased risk of harm or has had a recent rash of criminal conduct, you may have a duty to disclose this fact to the prospective resident, even if not asked.

Q. Street parking spaces are few and far between near my building. My apartment complex has just enough parking spaces for my residents to each has one space. If a resident has more than one car, they must try to park it on the street. It has been working out fine for years but now I have this one tenant who refuses to follow the rules. He is constantly parking his second car in someone else’s assigned spot. I’ve told him several times but he just ignores me. What do I do?

A.
Your community rules and regulations should specify your parking rules, specifically stating that only one vehicle may be parked on the premises and that all parking is assigned. Ensure that you have the proper signage at the entrances to the parking area. Most cities require the sign to contain certain restrictive parking language, plus the local police department telephone number, and the California Vehicle Code section that provides for towing of unauthorized vehicles. Contact your local police department for their specific requirements, as they vary from city to city. Next if you know the offender, then provide a written warning of the violation. Attempt to serve it at his residence, post it on his door if he’s not in, and also put the warning on the windshield of his car. If practical, take and save a photograph of the warning on the vehicle windshield, because the offender will always claim that you did not give prior notice before towing. If he fails to remove the offending vehicle, the car may be towed.


This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 255,000 landlord tenant matters throughout California, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.

Month to Month Balances

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Q: We have a guesthouse in the back of our home. The place has been there forever. Anyway, after the kids went off to college, we started renting it out. The current tenant signed a lease to pay rent plus their prorated portion of the monthly utilities. We didn’t get a payment this month. I am getting ready to serve a default notice, but I want to make sure I do it correctly. He owes rent and the utilities. Not sure if I can include both on the same notice. How can I recover the utility portion? Also, what if the resident pays the rent, but fails to pay the utilities? The utilities aren’t much, should I just let him run an outstanding balance and either deduct it from his deposit when he leaves or maybe ask for it when it gets a bit higher?

A:
First, the outstanding utilities should be paid timely and can be demanded through the service of a Three-Day Notice to Perform or Quit for Breach of Covenant. This notice should be served concurrently with your Three-Day Notice to Pay Rent or Quit. The Notice to Perform would inform the resident of his default in payment of the utility charges, and would require that the tenant perform by paying the outstanding utility charges within three days. It’s never a good business practice to carry balances over from one month to the next. When the time comes for you to take action, your prior conduct of accepting late payments without objection could result in the court finding that you “waived” your right to receive payment on time. Such a “waiver” of your rights and remedies may prevent you from enforcing your late fee provision or demanding payments on time. As such, even though the utility payment may be small when compared to the rent, it is still an obligation under the lease, and it should be enforced like any other provision.


This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 255,000 landlord tenant matters throughout California, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714-279-1100 or 800-829-6994. Please visit www.DuringerLaw.com for more information.

Split Payments, Roommate Replacements and more

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Question: I just received a phone call from one of my tenants asking me whether she can pay her rent for this month in two payments. I don’t like doing it, but she has been a great tenant over many years and this is the first time she has made such a request. While I want to help her, I don’t want to create any legal problems for myself. What are your thoughts on this situation?

Answer:
Generally, I’m not a fan of allowing tenants to make partial payments, as it sets up expectations that you will do so in the future. However, in your case, the tenant has been there quite a while and actually took the time to notify you in advance that she is short on rent. Based on her responsible behavior (which seems to be more and more rare these days), you might decide to allow her to pay rent in payments. Before you make that decision, be sure to check your rental agreement for a “nonwaiver” provision which states your decision to accept rent in two payments does not waive your right to insist on the entire amount on its due date in the future.

Assuming your rental agreement has such a provision (most modern agreements do), you can allow her to pay rent in payments without worrying about waiving your rights. Additionally, avoid putting anything in writing indicating the payment is for any specific period. Instead, simply provide her with a receipt (if you provide receipts) indicating the payment is a “partial payment” for the entire amount owed with a “balance due” for the unpaid amount. You can either issue a three day notice at the time she makes the partial payment, with a promise you won’t file eviction until the day after the date on which she has agreed to pay the balance (provided she fails to do so) or you can wait to serve the three-day notice until after the date on which she agreed to pay.

Either way, you are able to accept the partial payment without creating legal problems for yourself, keep control over the situation, and keep the relationship intact by accommodating her needs this month.

Question: In our lease agreements we require tenants to pay their rent on the first of the month. If the first falls on a holiday, such as Labor Day, do I have to give the tenant’s until midnight on the 2nd to pay the rent or can we still enforce the late fee as of midnight on the first?

Answer:
Rent is not delinquent unless one business day has expired from the date the rent is due. Where the first falls on a weekend or holiday, the rent becomes due on the following business day. So, you would not be permitted to charge them a late fee until 12:00 am of the following morning. For example, let’s say the first of the month fell on a Sunday. Rent would not be due until Monday morning at 12:00 am and you would not be able to charge them a late fee until Tuesday morning at 12:00 am.

Let’s change the example a bit. Let’s say the first fell on a Sunday, but Monday was a legal holiday. In that case, the rent “due date” will be Tuesday morning at 12:00 am and you will not be able to charge them a late fee until Wednesday morning at 12:00 am.

Question: I have a month-to-month rental agreement with a long term resident. I recently gave her a 60-day notice to vacate. Since the service of the notice, she hasn’t paid the rent so I served her with a three-day notice to pay rent or quit. A fellow landlord told me I may have invalidated my 60-day notice by serving the second notice afterwards. Did I void the 60-day notice?

Answer:
The three-day notice would not invali date the 60-day notice unless the notice de manded rent for a period of time beyond the expir ation of the 60-day period. However, if the situation were slightly different (e.g., you serve a three-day notice to remove un authorized occupants you discovered after serving a three-day notice to pay rent), the latter notice would act to reinstate the tenancy and invalidate the first three- day notice. In that situation, the removal of the unauthorized occupants would leave the tenancy intact and you would have to re-serve the three-day notice to pay rent or quit.

Question: I have a dilemma. I recently rented an apartment to four college roommates on a nine month lease that they all signed. Recently I received an email from one of them notifying me that one of the roommates moved out because he couldn’t get along with one of the other roommates, and that they had actually ended up in a fist fight one night. He then asked whether they would be permitted to “replace” the one who moved out in order to avoid the increase in rent the remaining three would have to pick up. What do I tell him?

Answer:
The nine month lease provides each of the students with a legal right to occupy the premises for the entire nine months, including the individual who moved out. Allowing the students to “replace” the individual who moved out without first confirming he has given up his right to occupy the premises could cause unanticipated problems.

While there is nothing preventing you from allowing the original lessees to amend the lease to “add” someone to the lease, doing so does not necessarily mean the roommate who left may not return. He still has a legal right to be there. Unless you, as the landlord, agree in writing with the roommate who moved out that he is releasing his right to occupy the property, he is legally permitted to return at any time (and he is still bound to the terms of the contract, including the payment of rent). Consider making an attempt to contact the roommate who vacated and letting him know that once his former roommates find a suitable replacement, you would like him to sign something stating he has no intention of returning and he gives up his right to occupy the property. That way, in the event the others fail to find a replacement and they fall behind in rent, you still have the ability to seek the rent from the original four roommates, including the individual who moved out, as they are all joint and severally liable for the rent during the contract period.

Question: The other day I served a three-day notice to pay rent or quit on a month-to-month resident. I was amazed to discover he actually vacated within the three-day period rather than digging in and making me evict him. My question is whether I now have the right to charge him for thirty days of rent after the move-out to comply with the month-to-month agreement?

Answer:
Sure. California law requires tenants to provide written 30-day notice of termination of tenancy unless the agreement provides for a shorter notice period. In this case, he owes you for thirty days rent, even if the 30-day period runs into the following month. However, be sure to document your efforts to relet the property (e.g., ads on Craig’s list, Westside Rentals, etc.) to prove your diligence in mitigating your losses. Additionally, you may deduct that unpaid amount from his security deposit.

The foregoing information is presented and intended to address the topic(s) covered above in a general nature. Specific situations and their facts should be presented to your attorney for review. Mike Brennan is the founder of Brennan Law Firm, one of the fastest growing and most experienced landlord-tenant law firms in Southern California, representing landlords exclusively in evictions, negotiations, and judgment enforcement. The firm may be reached at (626)294-0500, or toll free at (855)285-2230. Visit our website at www.MBrennanLaw.com for more information.

Mail, Drains, Being Sued & New Purchases

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Q: What happens when a tenant’s rent check gets lost in the mail? Common sense tells me that the tenant has to replace it, right? I can’t be held responsible for lost mail, can I?

A:
The answer is not as simple as you may think. Generally, the tenant bears the risk of loss if he elects to mail the rent and it fails to arrive. As a general rule, payment by check is not effective unless and until the check clears the financial institution. A lost check not received by the landlord is generally not deemed paid unless and until the landlord cashes the check. But, there are circumstances where the landlord will bear the risk of loss, however. A landlord who dictates specific payment procedures may cause the risk of loss to be shifted to him. For example, a landlord who refuses to provide a physical address for rent delivery, instead only providing a post office box, thereby preventing personal delivery of the rent may effectively shift the risk of loss to himself unknowingly. Likewise, a landlord who requires all rent to be deposited into a drop box rather than delivered to a specific address, may bear the risk of loss if that drop box gets broken into. The issue gets even more complicated if the resident pays by third party money order. Replacement of a money order can sometimes take two to three months. The simple solution to the dilemma is to use a rental agreement that clearly requires that the resident “deliver” his rent to the landlord at a specific address on or before the due date. An agreement purporting to require the resident to “mail” the rent by the due date may be found to require the resident to “mail” the rent, thereby shifting the risk of loss to the landlord. Of course, allowing your resident to pay by mail is the most common and the most convenient, however ensure that you do not create a requirement that the resident pay by mail, merely allow the convenience.

Q: Seems like I’m always clearing out a clogged drain, or fixing some other minor problem generally caused by my tenant. Trouble is, I don’t live near the units, and calling a plumber out for such routine repairs is way too expensive. Is there a way to pass this responsibility on to the resident?

A:
Yes, the responsibility for minor maintenance and repair items can be negotiated as part of the rental agreement. You cannot require your tenant to waive his right to live in a habitable unit, but you can require the resident to take responsibility for minor repairs and maintenance that may be required during the course of the tenancy. A provision requiring the resident to maintain the drainage lines, the toilets and the garbage disposal will require the resident to either perform the repairs and maintenance, or hire a professional to do it for him. Stoppages in the main line caused by roots or other causes will typically be an obligation reserved to the owner, while clogged drains, toilets and garbage disposals may be delegated to the resident to repair.

Q: Seems like every time I read the paper, some landlord is being sued for something. I think I manage my properties well, but I’m not sure anymore; is there anything that I can do to reduce my chances of being involved in litigation, and if I am, what can I do to protect all that I’ve worked so hard for?

A:
California is the most litigious state in the country. Deterioration of moral principles and values, lack of community, a pervasive entitlement mentality, lawyers with too much time on their hands and a runaway jury system have all played a role in the litigation explosion we all face. As landlords, we are targeted because of our perceived “deep pockets.” Our increased risk, coupled with a growing trend of insurance carriers “carving out” many potential threats from coverage, such as mold, asbestos, lead, discrimination claims, and employment practices, leave us woefully exposed. There are many things that you can, and should do to reduce both your exposure to lawsuits and minimize your risk of loss in the unfortunate event you are involved in one. First and foremost is to engage in good business practices. Keep informed of the changing laws by being involved in your apartment association. Update your forms regularly to keep abreast of changes in the law. Engage in thorough tenant screening; keep the bad guys out. Be aware of potential perils on your properties. Ensure that the lighting is adequate and working properly. Train your employees. Ensure that the relationship between your employees and residents is a professional one, and not personal. Ensure that your vendors are experienced, professional, and insured. Review your marketing materials and your leasing practices to ensure that they comply with Fair Housing rules. Respond to complaints quickly, and thoroughly. Water penetration issues should be dealt with immediately. Complaints about resident managers should not be dismissed immediately, but should be investigated. The vast majority of those being sued are those who ignored the many warning signs that preceded the lawsuit. Perform an insurance review at least once per year with your broker. Request a written analysis from your insurance broker identifying any uninsured risks, or underinsurance issues. Consider adding a commercial umbrella policy to your existing policy coverage. Consider a strategy of Asset Preservation Planning where “safe” personal assets are segregated and separated from “risky” business assets. By separating assets, in conjunction with other strategies, the risk of exposure can be drastically reduced. The best strategy for you may involve the use of Family Limited Partnerships, LLC’s, Corporations, trusts and other entities that assist you in protecting your assets. No one strategy is right for everyone. Watch out for the hucksters trying to sell you a particular plan or “system” that works for everyone. Don’t fall for the claim that simply by forming a Nevada Cor poration, you can “pay no taxes,” and “never be sued.” Some owners can be reasonably protected from most risks of harm simply by adding a commercial umbrella. Most owners will benefit by a strategic combination of estate planning tools, i.e., a revocable trust, coupled with one or more asset preservation tools, i.e., an FLP, LLC or a Corporation. A few high-risk individuals will benefit from the use of foreign trusts or foreign business entities as a part of their overall strategy. Other strategies involve certain tools that reduce or eliminate the equity in a target asset. The important thing to remember is that the time to formulate and implement an asset preservation strategy is before the need arises.

Your plan must be properly documented, properly funded, and properly maintained in order to ensure your security. Owning rental properties is tremendously rewarding. But with the rewards come certain risks, and the risk of litigation is one of the greatest. By keeping informed, instituting proper management procedures and by structuring your holdings correctly, you can preserve and enhance your net worth.

Q: I’m about to open escrow on the purchase of a fourplex. I’ve bought property before, but not in a few years. My agent seems a bit inexperienced, not sure if he’s ever really done a multifamily transaction before. Are there any new things to watch out for?

A:
Your purchase and sale agreement is the controlling contract, coupled with the escrow instructions. Make sure that the escrow instructions properly reflect your agreement. There most likely is a provision for conducting your “due diligence,” usually 20 to 30 days after the contract is fully executed. This period is critical. This is the best opportunity you will have to learn everything about the units that you care to learn. Make sure you conduct a thorough inspection of both the interior and exterior of the units, and the surrounding grounds. Review the rental agreements and the tenants’ history. Review the maintenance records, and inspect some of the more recent repairs. Talk to the tenants directly, confirm that the records are correct. Make sure that all residents sign tenant estoppel certificates confirming the terms of the tenancy agreement, especially important in a rent or eviction controlled unit. Check with your insurance broker to ensure that insurance coverage is available, and what the cost will be. You can also learn the insurance claim history of the building. This will give you insight to any undisclosed water issues or any other particular issues the property has experienced. The local police department can provide you with a call, or an incident log for the specific property, and the immediate neighborhood. If any issue concerns you, make sure you get answers. Extend the due diligence period in writing if necessary to get further answers. Involve other professionals in the process, but be personally involved; no one else will guard your interests better than you will yourself.

This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular situation should be addressed to your attorney. The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms, and has collected over $155,000,000.00 in debt since 1988. The firm may be reached at 714.279.1100, toll free at 800.829.6994 or 877.387.4643. Please visit www.DuringerLaw.com for more information and to sign up for our periodic newsletter.

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