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My Landlord Emailed a Notice to Evict Me!

I am increasingly seeing NOTICE clauses in residential lease agreements such as the clauses shown below:

NOTICE.  Any notice required or permitted under this Lease or under state law shall be deemed sufficiently given or served if sent by United States certified mail, return receipt requested, addressed as follows if to Landlord to ________; if to Tenant to:__________.

NOTICE: Each Resident shall provide an email address. Resident acknowledges and represents that this email address below is under his/her control and thus constitutes a valid method of notice for each, every, any and all notices given by Owner/Agent (including, but not limited to: legal notices, notices of charges arising out of lease, notices of any violations, etc.) Resident further represents that any notice sent to any Resident shall and will be immediately relayed to any and all other Residents, possessors, sublessors, assignees, and/or other persons occupying and or visiting the premises. Resident is responsible for checking their email each day and all notices are considered received on the day they were sent by midnight. Resident is responsible for keeping email address up to date and obtaining receipt from Owner/Agent in writing for any changes.

I am even seeing clauses where the cost of serving a legal notice, such as a Notice to Terminate Tenancy or a Notice to Cure or to Quit, are charged to the tenant!

But, are these lease clauses legal? No!

A 3-Day Notice to Terminate Tenancy must be served as follows:

1. The landlord must first attempt to personally serve (e.g. hand to you) the Notice but if you are unavailable for personal service, then
2. The landlord can substitute another person, of “suitable age and discretion,” usually age 18 or older, who is at your home or place of work and then send a copy of the Notice by mail, but if
3. The landlord cannot serve you personally or by substituted service, then s/he can post the Notice on your residential door in a conspicuous place and send a copy of the Notice by mail.

If options 2 or 3 are used, then service is not complete until the day after the Notice has actually been mailed.  See Cal. Code of Civ. Proc. section 1162(1)-(3).

A 30-Day or 60-Day Notice to Terminate Tenancy must be served as follows:

A landlord can use any of the service methods for a 3-Day notice OR can serve the tenant by certified or registered mail with return receipt requested.  See Cal. Civ. Code section 1946 and Cal. Code of Civ. Proc. section 1162.

So, in the first lease clause detailed above, the clause is invalid because it states that “any notice” can be served in the manner described which excludes a 3-Day eviction notice.

And, the second lease clause example affords service by EMAIL which is a patent violation of the law.

So, why is any of this important to you?  If service of one of the Notices described above is illegal, you may have a strong defense to an eviction proceeding!

To be fair, these are unusual lease clauses and the landlords who use them are not the norm. But certain landlords flagrantly insert penalizing, invalid lease clauses to assert their "command" of the property.  Bottom line: review any lease agreement prior to signing the contract and keep a copy of the lease agreement handy. Your landlord also must give you a copy of the executed agreement.  If there is a dispute between you and your landlord, the lease agreement will be central to the argument and will be provided to the Court to describe the rights of each party, rights that may be limited by the law.

Does My Landlord Have a Right to Inspect My Apartment?

Below is an example of an annual inspection notice posted on a tenant’s door by a property management company in the East Bay.

Excerpt of an Actual Annual Inspection Notice

A landlord's right to inspect the property may be described in the lease agreement but a lease clause concerning inspections may be overriden by state law if contradictory to the law. State law sets-out specific rules that Landlords must follow to enter your lease property to conduct a property inspection.

Under Cal. Civ. Code section 1954, an excerpt of which follows: 

(a) A landlord may enter the dwelling unit only in the following cases:

(1)    In case of emergency.

(2)   To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed to services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5.

(3) When the tenant has abandoned or surrendered the premises.

(4) Pursuant to court order.

  

(b) Except in cases [listed above], entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry.

(c) The landlord may not abuse the right of access or use it to harass the tenant.  

(d) (1) . . . the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours.

The notice shall include the date, approximate time, and purpose of the entry.

The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice.

Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary.

The right to an annual inspection is not necessarily consistent with Cal. Civ. Code section 1954. However, property management companies routinely inspect rental properties to a) protect themselves from liability, b) to determine if any repairs are necessary, and c) to ensure that the smoke and carbon monoxide detectors are in good working order.

Cal. Health & Safety Code13113.7 requires the installation of smoke detectors and local counties and municipalities may have additional detector requirements. Further, most leases require the tenant to insure that the batteries are tested and replaced regularly.

In the sample inspection notice shown above, the inspection is being done to replace batteries in legally mandated smoke and carbon monoxide detectors and to “measure carbon monoxide levels” where there are gas heaters and appliances.

Thus, while a tenant may object to an annual property inspection and may have a right to do so, it is better to cooperate with the Owner/Agent to insure that any repairs that they believe are required are addressed and the potential liability for replacement batteries in smoke and carbon monoxide detectors is placed on the Owner/Agent’s shoulders. 

Moreover, if your lease agreement has an “inspection” clause understand what you have agreed to before objecting.  And know that even if your lease clause does not discuss annual inspections, objecting to an annual inspection may cause unnecessary friction between landlord and tenant or heighten friction that may already exist. And friction is never good in any relationship, particularly between landlord and tenant.

Giving Thanks: A Personal Perspective

I never expected to be a landlord-tenant attorney. My passion for landlord-tenant law came from my own experience with a charismatic, large property owner in the East Bay.

Having lived in huge metropolitan areas across the U.S., in California, I encountered -- for the first time -- exploding toilets, lack of heat and hot water, illegal dumping, overflowing trash bins, illegal units, illegal utility sharing, abandoned vehicles, and a landlord who stalked and harassed me (and other female tenants.)

This unfortunate experience led to my bringing suit against my landlord in 2013; I represented myself in court and alleged numerous statutory violations, illegal lease clauses, unfair business practices, retaliation, harassment, and more.

My home is my retreat. During the lawsuit, even a good night’s sleep was illusive; I felt unsafe in my apartment. It took 3-months to find a new home, a home which a friend recently described as "zen."

In 2014, after an attorney friend served my trial brief and exhibits on the landlord’s attorneys, a settlement was offered, negotiated, and reached. I had a “slam dunk” case.

Tomorrow is Thanksgiving.

Today, I want to thank my tenant clients for choosing me to represent them.

Today, I want to thank my attorney friends who advised me during my lawsuit, who personally served court documents and provided feedback, and who stood with me in court proceedings. I have much to be grateful for. 

And, if you are a new visitor to this blog and need an attorney “in your corner,” let’s talk.

Happy Thanksgiving!

Go Ahead! Make My Day!

With escalating rents in the Bay area, more Oakland tenants are being forced out of their homes to make way for renters who can afford to pay market rates.  Some of this "force" is coming from landlord harassment which has risen to the attention of Oakland's city council who, in 2014, enacted an ordinance to protect tenants from harassing behavior.

Oakland has a Tenant Protection Ordinance (“TPO”) to deter harassing behaviors by landlords and to give tenants legal recourse in instances where they are subjected to harassing behavior by landlords (O.M.C.8.22.600). (City Council Ordinance No. 13265 C.M.S.)

While most landlords do not, or would not, deliberately harass their tenants, for those that do, a violator can be taken to task by the City Attorney's office or pursued in civil court by the tenant.

Did you know that the TPO Notice must also be posted in an interior common area of your rental building?

The Tenant Protection Ordinance requires Owners to post a notice of the TPO in rental units located in a building with an interior common area such as a laundry room or lobby area. 

The notice must be placed in at least one such common area in the building on the form prescribed by the City Staff.

Just Because I Accepted Partial Rent Payments, Doesn't Mean That I Won't Evict You!

There’s one remaining lease clause to discuss that is usually included in all landlord leases and that’s the “anti-waiver” clause.  Below is an example of an actual lease clause used by a large East Bay property owner.

"The waiver of either party of any breach shall not be construed to be a continuing waiver of any subsequent breach.  The receipt by Owner of the rent with the knowledge of any violation of a covenant or condition hereto shall not be deemed a waiver of such breach.  No waiver by either party of the provisions herein shall be deemed to have been made unless expressed in writing and signed by all parties to this Rental Agreement."

Here’s where the anti-waiver clause may come into play. Let’s say that you had a job loss and could only make a partial payment of rent on time, and the remaining rent in two-weeks. You call your landlord and explain the situation and how you are going to handle rent payments while you are seeking new employment. Your landlord orally agrees, this time only, to accept a partial payment.

During the next month, you are on unemployment. You family is squeezed for cash and can cover some, but not all of your rent, and your savings are quickly being depleted. You pay the rent late and your landlord charges late fees and threatens that, if rent is paid late next month, he or she may begin eviction proceedings.

You argue that your Landlord accepted partial payments of rent last month and no late charges were paid. You are trying your best to pay the rent. Your landlord can point to the anti-waiver clause in the lease agreement and say, “Just because I accepted partial rent payments doesn’t mean that I waived my rights to your failure [e.g. your breach] to pay rent on time.  Look at your lease!  See the waiver clause?”

A breach occurs when a party to the lease agreement fails to uphold one or more covenants (promises) in the lease.  Here, you agreed to pay the rent on time.  Your failure to pay the entire rent on time is a breach.

So, look at your current lease agreement or the one that you plan to sign.  Does it have an anti-waiver clause?  If it does, be careful about breaking any lease promises.

Finally, any lease clause (e.g. paragraph) in which a tenant waives their statutory rights (e.g. rights under California law), is void under Cal. Civ. Code section 1953. 

Lease clauses that contradict Cal. Civ. Code sections 1950.5 (security deposit), 1954 (notice of property inspection by landlord), 1942.1 (right to habitable premises) and 1942.5 (prohibition against landlord retaliation for reporting your landlord to the rent board, building inspection, fire inspection, or to the court) can be overturned in court as illegal lease clauses.

Are Late Fees Legal?

The clause below is an excerpt from an actual lease agreement used in the Bay Area:

LATE CHARGE: If any installment of rent is not received by Landlord in 5 calendar days after date due, Tenant shall pay Landlord an additional sum of $105.00 as a late charge, which shall be deemed additional rent.  Landlord and Tenant agree that this late charge represents a fair and reasonable estimate of the costs that Landlord may incur by reason of Tenant’s late payments. Any late charge shall be paid with the current installment of rent.  Landlord’s acceptance of any late charge shall not constitute a waiver as to any default of Tenant or Tenant  or prevent Landlord from exercising any other rights and remedies under this agreement and as provided by law.

Is this this clause “legal?”

Under Cal. Civil Code § 1671 and case law, a late fee is a liquidated damage awarded for a contract breach. In Hitz v. First Interstate, 38 Cal.App.4th 274 (1995), p. 288, the Court decided that:

"For liquidated damages to be valid under [Cal. Civ. Code § 1671], it must have been 'impracticable or extremely difficult to fix the actual damage.'”

"The amount of liquidated damages 'must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained.’”

Finally, "absent either of these elements, a liquidated damages provision is void, although breaching parties remain liable for the actual damages resulting from the breach.” [Emphasis added.]

Here, if the $105 late fee described in the lease is arbitrary and was not negotiated between the parties, it may be considered invalid by the Court. As a general rule, a late fee is considered unreasonable if it is more than 5% of the monthly rent. In the lease clause shown above, the monthly rent was $1,900.  Five percent of the monthly rent is $95.00 ($1900 * .05), thus, the Court could consider the late fee somewhat unreasonable since the fee is slightly higher than 5% of the monthly rent. 

By including the sentence, “Landlord and Tenant agree that this late charge represents a fair and reasonable estimate of the costs that Landlord may incur by reason of Tenant’s late payments,” Tenant contractually agrees that the late fee is not a liquidated damage.  This lease clause would be more likely to be upheld in court if the clause also stated that “damages suffered due to a late payment are extremely difficult and impractical to fix." Damages suffered by a Landlord are penalties in increased interest rates for late mortgage payments and administrative costs to collect late rent.  Also see Orozco v.Casimiro, 121 Cal.App.4th Supp. 7 (2004).

Additionally note the first sentence in the lease clause which reads, “. . . Tenant shall pay Landlord an additional sum of $105.00 as a late charge, which shall be deemed additional rent.”

In an eviction proceeding for non-payment of rent, the lawsuit can only detail the actual rent monies owed by the Tenant(s) being evicted for no more than a 12-month period. The rent owed must be detailed to the exact penny in the Notice to Cure or to Quit and in the complaint. Here, if the tenant is late in paying their rent, the late fee is assessed AND considered additional rent. If the tenant is later evicted for non-payment of rent, the Landlord may include late fees as rent owed in the complaint which could invalidate the 3-Day Notice to Pay Rent or Quit and which is contestable. To contest the calculation of the rent owed, the Tenant would also need to attack the lease clause that transmutes late fees into rent.

In example below, the late charge may be void even though the late payment was less than 5% of the monthly rent of $1,350.00 because this clause does not include the phrase stating that the actual damages to the Landlord resulting from the late rent payment were “impracticable or extremely difficult to fix.”

LATE CHARGE.  In the event that any payment required to be paid by Tenant hereunder is not made within three (3) days of when due, Tenant shall pay to Landlord, in addition to such payment or other charges due hereunder, a "late fee" in the amount of Fifty-Five DOLLARS ($55.00).

In the following example, the late fee clause is particularly penalizing but could be challenged since the late fee is more than 5% and may be considered unreasonable by the court even with the phrases noted in bold included in the lease clause.  Here, the rent was $2,350, with a late fee of $141!

LATE CHARGES/INTEREST: Resident acknowledges that late payment of Rent will cause Owner/Agent to incur costs and expenses, the exact amount of such costs being extremely difficult and impractical to fix and ascertain. Therefore, if any installment of Rent due from Resident is not received by Owner/Agent by 5:00 p.m. on 2 days of the month, Resident shall pay to Owner/Agent an additional sum of 6% of Monthly Rent, as a late charge, which shall be deemed additional Rent.  The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Owner/Agent will incur by reason of late payment by Resident. . .”

If you live in a rent-controlled residence, some municipal law has additional requirements related to lease clauses and late fees.

Finally, if you pay the monthly rent late and fail to pay the late fee, your Landlord can serve with a Notice to Perform Covenant or Quit.  A “covenant” is a promise. By signing a lease with a fairly iron-clad late fee’s clause, you have locked yourself into paying late fees. If you fail to pay these fees and the Landlord exercises his/her rights concerning late fees and serves you with a Notice to pay these fees, pay up or face an eviction proceeding. By testing the waters and not paying these fees, you may find yourself in front of a judge explaining why you signed a lease with a valid late fees clause and failed to pay up. 

Net, net, try to negotiate the late charge itself, before you sign the lease agreement, if it’s more than 5% of the monthly rent and argue that Courts frown upon a late charge that exceeds 5%. Try to pay the rent on time and don’t argue with your Landlord over the late fee, if it is assessed.  If you are on month-to-month lease period all that is required under state law is a 30 to 60-day notice period to terminate your lease. If you are in a rent controlled municipality but are not covered by a “just cause for eviction” municipal code, under state law, no reason is required to terminate your lease at the end of a fixed-term lease or a month-to-month term.  And, remember that in seeking a new rental residence, prospective landlords will probably call your current landlord to determine if you timely paid the rent.  A bad landlord reference may impede your ability to find a new residence. Don't let late fees become a curve ball in your landlord-tenant relationship because the Court may decide in the Landlord's favor if the late fee's clause meets the Hitz standard.