Legal Corner

Satellite Dishes, Drop Box, Dogs

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Q. I can’t take it anymore, every time I visit my building, there is another satellite dish bolted to my facia or attached to the roof. It’s not just the satellite dish folks; I’m having the same problem with the cable guys. They spread cable all over my brand-new roof, leave nails and screws scattered all around, and certainly are causing premature wear to the roof by all of their activities up there and, of course, all without my permission. No one should be on my roof! What do I do?

A.
The problem you describe is one that owners have been facing for years. Often it is the tenants who are the cause of the improper installation, but recently we’ve noticed the problems are more often caused by the actual dish or cable provider, by one of their subcontractors or employees. The trans gres sions are many; certainly, the installation by attaching the dish to your building facia or structure, and the stringing of cable on your roof is neither permitted by the rental agreement, nor by law.

More importantly, the entry upon your roof without your permission is an illegal trespass. The damage caused to your roof by directly attaching the dish to facia, or by the scattered nails and other debris working their way into the roofing material causing the roof membrane to leak are certainly unacceptable and are actionable. Don’t be surprised when your roofing contractor seeks to void his warranty due to your failure to prevent persons from abusing the roof, the lack of maintenance by allowing nails, screws and debris to remain on the roof, and the intentional penetrations of the roof membrane by the installers.

Enforcing the terms of the agreement against the tenant is, of course, the obvious choice, but not necessarily the best. In strong rental markets, a notice of default could be served on the tenant requiring the tenant to correct the problem, and if he failed to do so, evict him. Once evicted, the replacement tenant then moves in, calls the dish or cable guys, and the exact same problem happens again, deja vu. Problem solved? No.

In the current rental market, owners want to solve the problem, keep it from re-occurring, and yet maintain the tenancy if at all possible. The best solution in today’s market, assuming the installation was not done by the resident, is to put the resident on notice of the breach, and with the tenant’s cooperation, demand that the dish or cable installer correct the problem, and repair any damage done to the roof. A written demand should be served upon the dish or cable provider, as well as the installer, that you intend to pursue them civilly and will seek damages for their trespass on to your property, the roof, for recovery of the damages you have suffered and will suffer due to the damage to the roof and facia, and for further damages due to their “unfair business practices” of engaging in illegal activity, trespassing and causing damage to property. Provide them a reasonable amount of time (ten days) to contact you to make arrangements to remove the offending equipment and to repair any damage done to your roof. Upon receipt of your letter, or your attorney’s letter, the provider will certainly prefer to correct the situation and will certainly not repeat the transgression on your property.

Q. I’ve been thinking of installing a drop box somewhere on my property so that the residents can put their rent checks in it. I’m thinking I’ll save them a stamp and get the rents sooner. Any problem with doing this?

A.
Many landlords do exactly that, most with absolutely no problems whatsoever. If you are considering the practice, it is very important to install a secure box that cannot be removed or broken into and provide your residents with written procedures regarding the use of the drop box. Specifically, inform the residents that use of the box is optional; that they may use it for their convenience, but that there always is a risk of loss or theft. Rent will not be considered paid until you actually receive their check. And of course, never deposit cash.

Also provide the residents with a physical address where they can personally deliver the rent, not a PO Box, if they prefer not to deposit the rent into the drop box. By not requiring the use of the drop box, the resident will bear the risk of loss, until you actually receive the rent. If you mandate the use of a drop box, and fail to provide a physical address for payment, or require payment to be made to a PO Box, courts will find that the risk of loss transfers to you upon their placement in the drop box, or in the mail.

Q. Most of my rental units are large and many have an enclosed yard. I think that tenants with dogs tend to stay longer because not many buildings accept pets, so I allow my tenants to have pets. I recently received a letter from a resident complaining that another resident’s dog growled and seemed to lunge at her poodle. Now, I like dogs, not necessarily poodles, nervous little creatures, I think that the poodle probably started it, but I don’t know for sure. Anyway, no harm done, no bites, no blood - should I be concerned?

A.
Yes. Although you are not the owner of the dog and would not directly be responsible for any injuries that may result from a vicious dog attack, you may be held responsible based upon the theory that you, as a landowner, allowed a dangerous condition, the vicious dog, to remain on your premises. Once you are on notice of any dangerous propensity, either a bite or even an aggressive growl, you must take action to eliminate the threat of injury. Many juries will extend liability beyond the dog’s owner to the landlord if the landlord knew or should have known of the dog’s dangerous propensities yet took no action to eliminate the danger.


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.

Maintenance Issues, Repairs, Commercial

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Q: I am a very conscientious landlord. I want to ensure that my rentals are well maintained and that any maintenance issues are addressed immediately. Every year, I send a notice to my residents informing them that I will inspect each unit. I have been doing this for years without any problems. This month I received a letter from one of my tenants telling me that I had no right to enter his apartment to look around, that he would not let me in. What do I do? Can I force my way in to do the inspection?

A:
Your policy of doing annual inspections is admirable, and is practiced by responsible landlords throughout California. Most tenants welcome a responsible landlord's actions in ensuring that all is well, and voluntarily cooperate in providing access upon the landlord's reasonable request. It is clearly in the best interest of all to ensure that any maintenance issues are promptly addressed, and that a spirit of communication and co-operation exists between a landlord and his residents.

Trouble is, your resident is right. There is no specific provision in California law requiring a resident to allow the landlord access to merely "inspect" the premises. California law states that a landlord can enter a rental unit only for certain reasons. Those reasons are in an emergency; when the tenant has moved out or abandoned the premises; to make necessary or agreed repairs, decorations, alterations or other improvements; to show the unit to prospective purchasers, tenants or lenders~ to provide entry to contractors or workers who are to perform work on the unit; or to conduct a pre-move out inspection at the end of the tenancy; pursuant to court order; or to inspect the smoke detector or inspect the installation of a waterbed. Conspicuously absent from t his body of law is the unfettered right of a :landlord to just inspect for the pure sake of just making sure everything is all right. You cannot force your tenant to allow access for the purpose of inspection.

Q: My tenants and I seem to be able to work out our differences quite easily, but there are times while we disagree as to just who is responsible for making certain repairs to the apartment. Can you give me some guidelines that will help me decide if the repairs are my responsibility or the responsibility of the tenant?

A:
Residential rental units must be "habitable." In legal terms, "habitable" means the rental unit is fit for persons to live in and that it substantially complies with stale and local building and health codes that materially affect a tenant's health and safety. The law makes both landlords and tenants responsible for certain repairs, but you are ultimately responsible to ensure the unit is habitab1e. You are not responsible under the "implied warranty of habitability" for repairing damage caused by the tenant, his guests or his pets. You are responsible to take care of the habitability items, but your rental agreement can determine who takes care of the minor repairs. California law lists several items that are required to maintain a habitable unit these are effective water proofing and weather protection, including unbroken windows and doors; plumbing in good working order, including hot and cold running water connected to a sewage disposal system; gas facilities, healing, and electrical in good working order; clean and sanitary buildings and grounds; adequate trash receptacles; floors, stairways and railings in good repair. Additionally, each rental unit must have a working toilet, washbasin and a bathtub or shower, operable dead bolts on the main entry doors, window locks, and smoke detectors. A landlord is also responsible for the installation and maintenance of the inside wiring for one telephone jack.

Tenants must take reasonable care of the rental unit and the common areas. Tenants are responsible for repair of all damage resulting from their neglect, abuse or acts by their family, guests or pets. Tenants must do all of the following: keep the premises "clean and sanitary;" use and operate gas, electrical and plumbing fixtures properly; dispose of trash and garbage properly; not destroy, damage or deface t he property; not remove any part of the structure, dwelling, facilities or equipment; must use the premises as a place to live, and use the rooms for their intended purpose; and notify the landlord when dead bolts and window locks don't operate properly.

Q: Most of my rental properties are residential multifamily, but I have one small retail strip center in Los Angeles that I own as well. I've never had a problem with my commercial tenants, but I have one who hasn't paid rent this month. Can I use the same three-day notice to pay rent or quit that I use for my residential properties?

A:
Commercial and residential landlord tenant laws differ in many ways. One major difference between the two is the ability to accept partial rent payments after service of a notice to pay rent or quit for a commercial property, and not for a residential property. Provided the necessary language is included in the commercial notice, you may accept a partial payment without waiving your notice, and may proceed with an unlawful detainer action without having to reserve a new notice.

For that reason, an commercial notices to pay rent or quit should contain language stating that in the event a partial payment is made. it will not act as a waiver of your right to commence an unlawful detainer action. If you have served a notice that does not contain the proper language, and your tenant tenders a partial payment, you may immediately provide the tenant with a letter acknowledging the partial payment, but also stating that the partial payment will not act as a waiver of your right to proceed with an unlawful detainer action. Other than that, review the cure periods stated in the default portion of your lease. Typically, the cure period for non-payment of rent or other monetary sums due is three days. Failure to provide proof of insurance is typically three days as well. Most commercial leases will allow ten or 30 days to cure a non-monetary breach. Ensure that the forms that you intend to use are consistent with the terms you have negotiated in your lease agreement, as the terms of your lease will control.

Q: I have a tenant who just skipped out last weekend. He's been behind in his rent, but I was working with him and he was catching up. I got an email this morning from him confirming that he was out, and he said he left the keys in the twit. Guess rm kind of glad he's gone so I won't have to go through the eviction process. But now what? He's only six months into a one-year lease, and I don't have any prospects. What is my next step?

A:
First thing is to confirm he's out, pick up the keys and change the locks. Document the condition the unit was left in by taking several pictures of the premises. If there is damage, take detailed pictures of the damage. You will need to provide an accounting of his security deposit within 21 days if the property is residential, 30 days if it is commercial.

Now that you have possession of the premises, you have an obligation to mitigate your damages; that is, to attempt to re-let to minimize the loss that you are sure to incur. Ensure that you maintain a log and document your actions in attempting to re-let the premises. If you retain the services of a broker, ensure that he or she does the same. Your former tenant is responsible for the remaining term of the lease as wen as any costs that you will incur in re-letting the unit. These additional costs might include advertising fees, signage, broker's commissions, tenant improvements for the replacement tenant, and the difference in rent for the remainder of the term in the event the replacement rent schedule is less than your existing rent schedule.


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.

Rent Due, Commercial Leases, Troubled Former Tenants

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Q: Is it true that even though my rental agreement says rent is due on the first, there are times when the due date actually slips a day or two?

A:
Yes, when the first of the month falls on a weekend or a holiday, the actual “due” date will slip to the next business day. Just last month, in September, the first fell on a Saturday. Since the first was a weekend and the following Monday was Labor Day, the rent due date rolled until the next business day, Tuesday, September 4. This means that rent that was normally due on the first, was actually “due” on Tuesday, September 4, and would be considered late on September 5. This is important to know because in the event you served a three-day notice to pay rent or quit demanding September rent prior to Wednesday, September 5, 2018, then the notice was defective, as it was served prior to the rent actually being “late.”

Q: I am about to enter into a five-year term lease for an industrial unit in Southern California. The unit has been vacant several months and I don’t want to lose this deal as it seems like good tenants are kind of few and far between lately. We’ve agreed on just about all of the deal points except a couple. At the last minute the tenant requested the lease be prepared with a subsidiary of his company rather than the parent company, saying it is for “tax reasons.” Additionally, he wants to make the use provision extremely broad rather than specific, allowing him to do just about anything in the premises without having to get my permission. He knows I need to lease the space, but I’m not sure I want to give in on these points. What are my options?

A:
Negotiating commercial leases involves a bit of horse trading. Often, terms that are very important to your tenant may not be so important to you, and vice versa. Knowing the pros and cons of each deal point allows you to knowingly accept or reject certain risks when considering certain requests.

Generally, parties meet somewhere in the middle of a request, allowing certain concessions, but protecting the interests of the Lessor. The tenant’s last-minute request to substitute a subsidiary in its stead is an attempt to shift the risk away from the financially stable parent company, and obligate a less financially qualified entity, often times a mere shell, with relatively few assets.

Screen the proposed replacement tenant as you would any proposed tenant to determine if it meets your rental criteria. Is it an existing concern or a new entity recently formed solely for the purpose of signing this lease? Is it an independent business concern generating its own revenue stream? With its own assets? Or merely a subsidiary of the parent with no independent means of sustainability. There are many options to offer that would allow the tenant to satisfy his “tax reason” while still protecting the Lessor’s interests. You may allow the replacement tenant, but require the parent company to guaranty the lease. The guaranty can range from an unconditional full-term guaranty to a limited guaranty based either on a certain period of time, or a certain maximum exposure. An increased security deposit adds protection as well. Options such as an irrevocable declining letter of credit issued by a reputable financial institution allow parties to salvage deals that might otherwise fail.

Use provisions are important for a number of reasons. It is important that the tenant’s use does not overburden the facility, or interfere with the neighbors. Certain unacceptable tenant uses may involve high levels of noise, or the use of corrosive or carcinogenic materials, or other toxic byproducts. As your facility is an industrial complex, parking is no doubt limited. It is important that the approved uses do not over-burden the limited available parking. Rather than approving a very broad undefined use, it is better to identify the allowed use, but allow the tenant to request approval for a change of use in the event its operations change in the future.

Q: I’ve been reviewing my tenancy files and realize that most of the information is outdated. The phone numbers, job info and vehicle information is all from when the tenants first moved in, some many years ago. I’m not even sure who lives in each unit, as many have changed roommates. What is the best way to correct this mess?

A:
Many landlords find themselves in exactly your situation. As you surely realize it is very important to actively manage your units and keep your records up to date. It is good business practice to update resident contact information at least once a year. Rather than just circulate a blank rental application and ask your residents to complete it, prepare a specific request for specific information that you’d like from your residents. The type of information you should have, and maintain current is a list of all occupants, email and telephone contact information for each, and both evening and day phone numbers for every occupant. Periodically make photocopies of your tenants rent checks to gather bank account information for your files in the event you ever need to collect from them. Note license plate numbers for vehicles and keep abreast of changes in employment throughout the tenancy, as best you can.

Q: I was recently called by another landlord requesting reference information on one of my past residents. This particular resident was a genuine pain in the rear, and the day she moved was one of the happiest days of my life. I also know that this particular ex-tenant is no stranger to the courthouse. She seems to have her own personal lawyer with way too much time on his hands, who likes to sue anyone and everyone she has a bad experience with. Now that she’s gone, I really don’t want to have anything to do with her ever again. I am afraid that if I say anything against the tenant, and the new landlord rejects her, then she might sue me. If I give her a glowing recommendation, and the new landlord relies upon my statements, what happens when he finds out the truth, that she really is the tenant from hell?

A:
A former landlord who is asked to provide a reference for an ex-tenant must be careful to provide accurate and truthful information. If a former landlord misleadingly gives a good recommendation about a problem tenant, the landlord may be liable to the new landlord who relies on the information and is damaged. It is the policy of many landlords to not respond to subjective inquiries; that is, questions such as “Was she a good tenant?” or “Would you rent to her again?” Many landlords enact policies to provide neither good nor bad references, and only confirm specific objective information such as rental rate, and dates of occupancy.


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.

A Selling Issue, Roommates, and more

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Q: Just when I thought I was doing everything right, I think maybe I’m not. Here’s the short version. I’ve had my building on the market for a while waiting for a buyer. I received an offer and we opened escrow a couple of weeks ago. The buyer is doing his due diligence and is going through the books and records, etc. A couple of 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 use to go to law school, that he knows his rights, and says I can’t go in. Needless to say, this was unex pected. I have the inspectors and 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 he 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.

Additionally, 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.

Q: I have a dilemma. I rent a townhouse to three roommates, two girls and a guy. They all signed a one-year lease just four months ago. I got a call the other night from one of the girls and she told me that the guy had moved out a week after they moved in after the three of them had some sort of disagreement. She said that he called her the other day and said he wanted to move back in this weekend. She spared me the details, but she sounded afraid of him. The neighbors told me some stories about the guy and it sounds like we’re all better off if he isn’t around. She asked if she could change the locks and not let him in. I’m not sure what to do, if he’s locked out, won’t he just come to me and ask for a key? What do I tell him?

A:
The one-year lease agreement provides each of the three occupants the right to occupy and use the premises for the entire term of the lease or until terminated. No one tenant has greater rights than any other. Any action, absent a court order, by one or both of the girls to deny the third roommate entry would be actionable. If the remaining two roommates are truly afraid of the third, they should immediately seek a restraining order barring him from coming near the townhouse. The restraining order, if done properly, will allow you to refuse to provide him with a key to the changed locks, and will keep him away from the premises. He will, however, still be contractually obligated to perform the obligations, but the restraining order will prevent him from living in or visiting the unit.

Q: I think I’m ready to join the ranks of landlords here in Southern California. I placed an offer on a 12-unit apartment building, the seller accepted it and I’m currently in escrow. I’m now about to conduct my due diligence. Is there anything special that I should be aware of when reviewing the property or the rent roll? What can I do to protect myself when a tenant claims that he had more security deposit than what gets transferred to me on close of escrow?

A:
When doing your due diligence, it is important to review all existing rental agreements and other contracts that affect the building. A practice that is becoming more and more common in smaller multi-family complex transactions is to require that estoppel statements be prepared and signed by both the seller and the occupants of each unit. When you compare these signed estoppel statements with the written agreements, and with the seller’s representations, you will be aware of any discrepancy. This has the added benefit of affirming the terms of the rental agreement either written or verbal and confirming rental amounts, due date, names and number of authorized occupants, and the amount of security deposit currently being held for each unit.

A buyer is required to make a reasonable inquiry and investigation as to the amount of security deposit held. If the buyer fails to inquire, then the tenant may prevail in an action against the buyer for return of deposit, even if the deposit was never transferred to the buyer in escrow. As crazy as it sounds, the law provides that a tenant may prove the existence of a security deposit by documentary evidence or merely by a declaration in certain circumstances. In addition to a thorough review of your tenancy agreements, inspect other contracts relating to the property. If you see a laundry room, inquire as to who owns the machines. If the machines are leased, request a copy of the laundry lease agreement, and contact the laundry company to confirm the terms.

Q: Parking is very tight in the neighborhood around one of my buildings. My apartment building has 14 units and 14 parking spaces. There is just enough parking for each of my residents to have one space. If a resident has more than one car, they must 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 of 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 and on the offender’s apartment door, if applicable. The offender will always claim that you did not give prior notice before towing, so ensure that you document the warnings well. If he fails to remove the offending vehicle, the car may be towed.

Q: I’m still a bit confused about the security deposit disposition form, and whether or not I must include receipts. Can you summarize it for me?

A:
The method of accounting for security deposits after a tenant has vacated your rental unit is defined by statute. California law requires that certain documentation be provided to the departing tenant under certain circumstances. The law requires that landlords prepare and send an itemized statement, within 21 days of the tenant returning possession detailing all deductions from the security deposit.

If the deductions for repairs and cleaning exceed $125, then the landlord must provide copies of receipts and invoices along with the itemization, along with the name, address and telephone number of the vendor who did the work or provided the supplies. If the repairs cannot be completed within the 21-day time period, you may provide an estimate of the work needed within the 21-day period. Upon completion of the work, you must provide receipts and invoices within 14 days of completion. The law provides that an owner and his employees may perform the work themselves and charge a “reasonable” fee. The law is clear as mud as to what that reasonable fee may be, suffice it to say that owners should maintain logs and time sheets to justify time spent on repairs and the reasonable hourly rate charged.


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.

Marijuana, Utilities

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Q: My apartment building has always been a nice and quiet community, no bother, no worries. Everyone keeps to themselves; never have complaints about behavior. Well, that all changed when my manager let down her guard and didn’t fully screen my newest residents!

Ever since these two characters moved in, flashing me their “doctor’s note” saying they could smoke pot, they’ve been puffing away ever since. Apparently they claim to be “disabled” and that because they are “disabled” they get to do whatever they want. Huge clouds of smoke literally billow out of their apartment! I’m concerned about lots of things, but mostly, the little girl who lives next door, I believe that she’s asthmatic. How much more of this must I, and the neighbors, take?

A:
The audacity of some medical “professionals” to abuse and game the system by willfully pro scribing the use of “medical marijuana” to non-disabled fraudsters is an affront to all truly disabled persons.

As of this writing, the use of marijuana, medical or otherwise, is still illegal under federal law; however, the federal government has elected to stay any enforcement and prosecution for the use and/or possession of “medical marijuana.”

California legalized the recreational use of marijuana, which allows for the possession of a limited amount of marijuana, for personal use, provided certain requirements are met. Marijuana smoking is restricted by location. It may not be smoked wherever smoking is prohibited by law, within 1,000 feet of a school, recreation center, or youth center, on a school bus, or in a moving vehicle or boat. The right to “smoke” marijuana in your apartment community is not automatic, and will depend upon the individual facts of each case. The use of nonmedical marijuana is technically illegal under federal law and, as such, cannot be used or smoked anywhere, including your community, and may be grounds for termination of their tenancy.

The use of medical marijuana requires that the user be disabled, and the disability must be “verifiable.” Additionally, the disabled individual must request a “reasonable accommodation” from you, the housing provider, prior to just lighting up. Once the disabled person makes the request for a reasonable accommodation, you are obligated to consider the request, and attempt in good faith to accommodate the request in a reasonable manner. The accommodation does not necessarily require you to “grant” the request outright, but you must make a good faith effort to provide an accommodation that addresses the disability, but does so in such a manner that it does not unreasonably “burden” you, the housing provider. The courts will apply a “benefit to the requestor” versus a “burden to the housing provider” standard in determining whether or not you met your obligation to reasonably accommodate the disability.

In your specific situation, the initial hurdle for your new residents to surpass is to establish that one or both truly has a “verifiable” disability. A “doctor’s note,” provided it has not been forged, although highly suspect, will generally satisfy the extremely low threshold here in California. The reasonable accommodation, their request to smoke willy-nilly within the apartment, must be balanced with the “burden” to you, the housing provider, and those other residents that might be affected, i.e., the asthmatic child living next door. It is conceivable and probably likely that an asthmatic child, when exposed to the smoke billowing from next door, might have a devastating and fatal reaction. Certainly the neighbor child, with a truly verifiable disability of asthma, is entitled to be free of the exhaled smoke as a “reasonable accommodation” for her verifiable disability.

When balancing the benefit to “Cheech and Chong” of being able to light up in their apartment, with the burden to you as well as the extreme life threatening burden to the asth matic child, courts would most likely find that a reasonable accommodation would be to prohibit the smoking of the marijuana within the apartment unit or in any place that might affect the asthmatic child or others with such a sensitivity to smoke; but to provide an area within the community, possibly a portion of the outdoor common area, that may be used for the smoking of their medical marijuana. Alternatively, there are other methods of delivering the active ingredient in marijuana, i.e., ingestion, pills or tablets, food based, etc.

Remember, reasonable accommodation issues are extremely fact-sensitive and the analysis is dependent on a proper review of the relevant facts. Always contact an experienced attorney when faced with a request for a reasonable accommo dation, as the issues are typically complex and a reasoned response must be made in a timely manner.

Q: My new tenants just moved in a month and a half ago. The lease requires that the tenant pays for all utilities, and must put the utilities in their own name prior to moving in. Well, I just received the electric bill and it’s still in my name. I’m thinking about not paying it, just letting it get shut off. Maybe when the lights go out, they’ll take care of it. Can I do that?

A:
No, you cannot let the utilities be shut off. Your tenant’s actions are a breach of the rental agreement and must be addressed in compliance with California law. You should immediately prepare and serve a Notice to Perform or Quit - Breach of Covenant notice. The notice should identify the specific breaches, the failure to place the electric utility in their own name, and their failure to pay the utility charges incurred since taking possession. The notice should be specific as to how they must cure the breach, namely, they must put the utilities in their name, and reimburse you for the amount of utility changes that have been billed and incurred post tenancy.

Note that some jurisdictions may require that you include a statement identifying a witness who observed the breach, as well as the date and time of the breach. In such jurisdiction, you or your manager would suffice as the witness, and the breach would be considered “ongoing” as it continues to occur. In the event of non-compliance, you would be entitled to file an unlawful detainer action to recover possession of the premises. Rarely though is that necessary, as the vast majority of residents will immediately comply.


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.

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