SEPTEMBER 2013 NEWSLETTER

HUMAN RIGHTS ISSUES

While you will want to know as much about a rental applicant as possible, Federal and California law prohibits certain factors from being considered by a landlord when choosing who he or she will rent to. These factors include race, ancestry, place of origin, color, ethnic origin, citizenship, creed, sex, age, marital status, family status, or handicap. Americans with Disabilities Act, require that a landlord make reasonable accommodations for a disabled tenant. You cannot turn a prospective tenant down because of a disability. Not all disabilities are evident. For instance a doctor may have ordered that the person have a companion animal such as a dog or a cat. You will not be allowed to enforce a “Not Pet” rule as related to this person. You might think it is acceptable to ask personal questions to determine a tenant's suitability, but demanding answers as a condition of renting may contravene human rights. You cannot refuse to rent an apartment based on these conditions.  


Watch our video

TENANT BANKRUPTCY

Some tenants think that filing a bankruptcy petition will prevent them from being evicted. This is not always true. It will however through a road block into your attempt to resolve a problem with a tenant, be it failure to pay rent, a nuisance, or any other viable reason to pursue an unlawful detainer.

This is one of those occasions* where the Landlord should immediately seek legal representation. The landlord that attempts to go it alone in bankruptcy court will be disappointed and will in the long run lose more than he/she gains.

Bankruptcy is a complicated legal specialty and explaining it is beyond the scope of this Article, however, here are some the basic issues you will face as it relates to unlawful detainer proceedings:

  • A tenant who files a bankruptcy normally is entitled to an immediate automatic stay (delay) of a pending unlawful detainer action. If you haven’t already filed the unlawful detainer action, the automatic stay prevents you from taking steps such as serving a three-day notice or filing the action.
  • You may, however, petition the bankruptcy court for permission to proceed with the unlawful detainer action (called “relief from the automatic stay”)
  • The automatic stay may continue in effect until the bankruptcy case is closed, dismissed, or completed. On the other hand, the bankruptcy court may lift the stay if you can show that you are entitled to relief.
  • (continued)

  • The automatic stay normally does not prevent you from enforcing an unlawful detainer judgment that was obtained before the tenant’s petition was filed. In some cases, however, the tenant may be able to keep the stay in effect for 30 days after the petition is filed.
  • The automatic stay does not apply if your eviction action is based on the tenant’s endangering the rental property or using illegal controlled substances on the property, and if you file a required certification with the bankruptcy court. The stay normally will remain in effect, however, for 15 days after you file the certification with the court.
  • A bankruptcy case can be dismissed for “cause”—for example, if the tenant neglects to pay fees or file necessary schedules and financial information, causes unreasonable delay that harms you, the landlord, or files the case in bad faith.
  • *the occasions a Landlord needs counsel are 1. If the landlord is an LLC, 2. If the landlord is a Corporation. Int these case the landlord cannot file in propria persona but will need the services of a member of the California Bar.
  • Oral Rental Agreements (must have some writing)

    In an oral rental agreement, you and the tenant agree orally (not in writing) that you will rent the rental unit. In addition, the tenant agrees to pay each month. This kind of rental agreement is legally binding on both you and the tenant, even though it is not in writing. If however you enter into an oral lease for a term more than one year, the agreement must be in writing. If such an agreement is not in writing, it is not enforceable. If you have a valid oral agreement and later have a disagreement with your landlord, you will have no written proof of the terms of your rental agreement. Therefore, it’s best to have a written rental agreement.

    However, even if the agreement is oral, you must give you a written statement regarding your name, street address, and phone number for receipt of legal notices; the contact information for the person who is to accept the rent; and how the rent is to be paid (for example by cash, check or money order.)

    LATE FEE

    A rental agreement generally includes a pre-determined late fee. This is acceptable if it isn’t exorbitant. A late fee which is excessive and designed to punish the tenant is unacceptable. The Law abhors penalties, and the late fee imposed must be a reasonable proximate of the actual costs the landlord will incur . A late fee that is so high that it amounts to a penalty is not legally valid.

    Additionally late fees are limited by local rent control ordinances. The catch word, when it comes to late fees is “reasonable”. If you as a landlord are reasonable, and your late fees aren’t exorbitant then you are within the law.

    Kenneth Wimer
    Talk Fusion (Pro)
    916-353-1206
    ken@wimer.net
    www.talkfusion.com/1193801

    Forward to Friend »
    Start your 30 day FREE TRIAL now!