“What are the disclosure requirements for lead-based paint?”
Two types of lead-based disclosures are required for most residential rental properties built prior to 1978. Certain types of housing, such as zero-bedroom dwellings and senior housing may be excluded from the following disclosure rules.
Federal law requires that prior to executing a rental agreement; the rental owner or manager must provide incoming residents with a federal EPA pamphlet entitled, “Protect Your Family from Lead in Your Home” .
The owner or manager also is required to disclose to the residents any information about lead-based paint or lead hazards at the property. The resident as well as the owner or manager must sign a disclosure form, Lead Based Paint Disclosure Addendum.
Due to the risk of lead exposure that may result from renovation activities, federal law also requires so-called “renovators” to provide disclosures. A “renovator” is anyone compensated for the work. If the work is performed by the owner or an owner’s employee, the owner must comply with the notice provision. If property management company staff performs the work, the company is responsible for the disclosure. If an independent contractor is hired by the owner, the contractor must provide the disclosure to the residents and the owner.
For work performed by an independent contractor, the owner is not responsible for providing the pamphlet or disclosure to the residents. However, many attorneys recommend that owners provide the pamphlet and disclosure in case the contractor fails to do so.
Renovators are required to provide a pamphlet called “Renovate Right: Important Lead Hazard Information for Families, Child Care Providers, and Schools” to residents and/or the rental owners whenever undertaking specific renovation or remodeling.
In addition, this pamphlet must accompany a disclosure form, Lead Based Paint Renovation Disclosure that describes the location and type of work to be done. In California, the disclosure requirement applies when a renovator renovates two or more square feet of painted surfaces in a room for interior projects or more than 20 square feet for exterior projects. The requirement also applies to any window replacement.
Anyone performing the work must be trained as well as certified or supervised by someone who is certified.
(RHA January 2015)
“Does a new roommate require a new rental agreement?”
Sometimes a roommate will move out before the end of a tenancy, and the remaining tenants request to add a new roommate, usually another friend. How should you handle this situation?
Whenever possible, you should have all parties enter into a new agreement because it offers you the greatest protection, especially if the existing rental agreement was signed several years ago. However, signing a new agreement may not be practical for every situation.
For this reason, when one or more occupants change, you can use the new “Change of Occupancy Addendum” (CAA Form 5.4). Whether your existing rental agreement is a month-to-month agreement or a fixed-term lease, this form allows you to document the change in occupants without having to create a new agreement.
This one-page form is easy to use. Just follow the instructions to record names of all current residents, the name(s) of the vacating roommate(s), and the name(s) of the new occupant(s). All of these parties must sign this new form. A copy of the existing rental agreement should be given to every new resident.
You should screen and qualify both the new as well as continuing residents in accordance with your written screening criteria. In addition, the form requires you to indicate whether the departing renter(s) are released from any lease obligations. Using this new form will not trigger a move-out inspection or require you to refund any portion of the security deposit to departing renters. The full security deposit is retained until all occupants vacate at the end of the tenancy.
(RHA February 2015)
Q: I heard that unless your rental agreement requires rent to be paid in advance that it is not owed until the end of the month. Is this true?
A: Under California law monthly rent is not due until the end of the month unless the lease or rental agreement require the rent to be paid in advance. That is why virtually every written rental agreement contains that language.
Q: My tenant moved in a few years ago with a roommate, and they paid the security deposit together. One roommate moved out and another roommate moved in. At that time, the rent was increased and they paid some additional security deposit. Who is entitled to the security deposit when the unit is vacated?
A: You should make the check out to all of them unless you receive in writing from any one of them that he or she has relinquished all rights to the security deposit to the others.
Q: Can a small claims court action regarding a security deposit dispute be appealed?
A: If the action was in small claims court, you can only appeal if you were the defendant, and then the case is heard all over again before a different judge.
Q: Under a twelve-month lease on a single family home, if a tenant breaks a window and does not repair it after a week or two, can we take the money out of the next rent payment?
A: It is better to fix the window or fix the window with a licensed contractor. If the tenant refuses to pay for or fix the window, serve a 3-Day Notice to Perform Conditions and/or Covenants or Quit. If he/she refuses to pay or fix the window in three days, you can commence the eviction.
Q: We have a tenant who has been in the unit for one year and painted it dark purple. Can I charge the resident for returning the paint color to white when he vacates the unit?
A: Yes, if you have a lease provision against making alterations without your consent. You can only charge the actual cost of turning the paint from purple back to white.
Q: I sent a tenant an itemized disposition of security deposit, and there is a balance due to me. How long must I wait before taking her to court? Should I contact her one more time before doing so?
A: You can take the tenant to court immediately. If your lease was written, the time within which you must bring an action is four years. It is always a good idea to attempt to resolve the issue first before seeking court action.
Q: One of our tenants claims we owe him for the loss of his food stored in his refrigerator. The refrigerator broke down, and we had it fixed within two days. Do we have to pay for his food?
A: Not unless your tenant could prove that you were negligent in the maintenance of the refrigerator or knew or should have known it would break down. Landlords are not the insurers of their tenant’s property loss. Smart tenants purchase renter’s insurance to cover these types of losses.
Q: A former tenant is threatening to sue us over the security deposit we returned. They cashed the check yesterday. Does that mean that they “agree” with the amount?
A: No, they can still cash the check and claim you owe them more of the deposit.
Q: If an owner serves a 3-Day Notice to Pay or Quit upon a tenant and the tenant decides to move out, can the owner deduct from the security deposit the amount that was demanded in the 3-day notice plus the next month’s rent that would have been due if the tenant had given the contractually required 30-day notice before leaving?
A: Yes, California law allows a landlord who has a month-to month lease with a tenant who vacates without notice, to charge rent up to 30 days after the premises were abandoned, unless relet within the 30-day time. In that event, the landlord may only charge rent up to the day it was relet. The unpaid rent may be deducted from the tenant’s security deposit.
(RHA March 2015)
Q: I have an applicant who uses a wheelchair. She wants me to put a ramp into her unit, widen her doorways and install a roll-in shower for her. Do I have to do this? My property was built in 1972.
A: As long as your property is not federally funded, you do not have make these modifications for the applicant. However, you do have to allow the applicant to make the modifications herself, at her own expense (assuming she rents the unit from you). The work must be done in a workmanlike manner and if the cost of the labor and materials would exceed $500, California law requires it be done or supervised by a licensed contractor.
Q: Can I prohibit a resident from having a Pit Bull as an assistive animal?
A: No. You cannot impose breed restrictions on assistive animals. If a particular animal (regardless of breed) has a history of biting or other dangerous behavior, that animal should be able to be denied (although the resident could get a different animal).
Q: My resident has asked for an accommodation and I don’t think they’re disabled. Can I force them to get a note from their doctor?
A: No. While you are entitled to written verification that a resident’s condition meets the definition of disability under California law and to verify there is a disability related need for the accommodation, you may not require this note to only come from a doctor. Any sufficiently reliable third party, which would include a doctor, may provide verification.
Q: Can I require an applicant who uses a wheelchair to live on the first floor? We don’t have an elevator and I’m worried he couldn’t get out if there was a fire or other emergency.
A: No. This practice would be considered “steering,” or trying to control where the applicant lives on the property based on his protected class (disability). An applicant with a disability has the right to live in any apartment he chooses, assuming he meets your property’s screening criteria.
Q: I am trying to evict a resident for his conduct on the property. He has indicated that his conduct is due to his current drug use and he asked me to give him another chance claiming his ongoing drug use makes him disabled. Can I continue with the eviction?
A: Yes. Although recovered drug addicts are considered to be disabled, someone who is currently engaged in the illegal use of controlled substances is not covered under federal or state fair housing law.
Q: I entered my resident’s unit yesterday to check the smoke detectors and found that she is hoarding. I couldn’t even walk into a few of the rooms because of there was so much personal property inside. Can I serve her a 3-Day Notice to Quit?
A: No. Hoarding is recognized as a mental disability. Before you can evict, you generally must give the resident an opportunity to bring her unit into a safe and sanitary condition. If the resident refuses to take steps to remedy the condition of the unit after you have given her a reasonable amount of time to do so, then you should be able to terminate the tenancy.
Q: I had an applicant who applied for an apartment today. She said she has two assistive dogs. Can I limit the number of assistive dogs to one?
A: No, you can’t limit the number of animals to one. However, you can require verification that because of the resident’s disability (or disability of other household members), two assistive animals are necessary.
Q: My resident has an unauthorized dog in her unit. When I sent her a lease violation notice, she told me that her dog was an assistive animal. A few days later she brought in a Service Animal Certificate which she obtained from a website. Do I have to accept that as valid verification?
A: No. The websites that issue those types of certificates generally do not require proof of disability or disability-related need for the animal. Anyone can register their dog as a service animal by simply paying a fee to the website. Landlords are entitled to written verification that the resident has a disability and a disability-related need for the dog.
(RHA April 2015)
"Can I require my tenant to turn on the gas?"
Despite several reminders, your renter refuses to turn on the utilities, including the gas for the wall heaters. What should you do?
Perhaps your renter is trying to save money. Or maybe he has an unpaid balance with the local utility and is unable to have the gas turned on. Regardless of the reason, the decision whether to maintain utility services is not left up to your renter. As the property owner/landlord/property manager etc, you have a responsibility to ensure the rental unit is habitable.
California Civil Code Section 1941 lists what must be present and operable for a rental unit to be considered habitable. One of these is "hearting facilities that conformed to applicable law at the time of installation, maintained in good working order..." In your situation, the heating equipment is working properly, but the renter's actions have rendered the unit uninhabitable.
In addition, a heater must be permanently installed to conform to state building code. Although your renter may be willing to live with a portable heater turned on when needed, this does not satisfy the requirements of state law.
Whenever renters fail to keep gas or electricity connected, light and/or heat is unavailable. Renters often resort to candles to replace electricity or use portable heaters instead of the existing heating equipment. Either of these could result in a fire, making this situation an urgent matter.
Since you have already reminded your renter several times, the next step is to serve a Three Day Notice to Perform Conditions and/or Covenants or Quit. When preparing the notice, you need to identify the violation the renter has to cure. CAA rental agreements contain language holding the renter responsible for keeping the utilities on, and it is a material violation of the agreement not to do so. If your use CAA rental document, this is the language you need.
If you do no use CAA rental agreements, search your own document for language requiring the renter to comply with all laws. By keeping the unit without hear, your rental has created a code violation. The available remedies are to get the heat turned on or have the rental unoccupied. If the renter fails to correct the violation, your next step would be eviction.
(RHA May 2015 issue)