Property Owners Affected by New Tenant Screening Guidelines

Identity theft and breach of data in the credit reporting industry has changed the business environment for every industry, including the rental housing market. In 2006, the three national credit reporting repositories, Equifax, Experian, and Trans Union sent their resellers of data new policies to sign and implement. In turn, the resellers of Equifax, Experian, and Trans Union data have received mandates that require new contracts between the reseller (such as Credit Bureau Associates) and the end-user (a property owner or management company) of the credit report. The resellers must make these changes with end-users who use their screening services and with their existing credit reporting clients. The most sweeping change in the policy is the requirement that resellers of credit must conduct on-site inspections and verify the business address and operation of their end-user clients. The resellers cannot use their own staff to conduct these inspections; they must use an independent third party.

Workers' Compensation Coverage – It's the Law

The law requires that rental property owners carry Workers'  Compensation insurance to cover their employees, even the neighborhood kids that mow your lawn. CAA 's Workers' Compensation insurance program offers members a 6 percent discount off State Fund's regular rates. In addition, CAA 's program has one of the lowest minimum premiums available at just $340 per year. Go to the CAA website:  www.caanet.org for more information.

Legal Q & A

Q. An individual died in one of my units in 2005. Do I have to disclose this to potential tenants who apply to rent this unit? If I do have to disclose, for what period of time is the disclosure legally required?

A. California law states that owners may not be held liable for the failure to disclose to prospective resident deaths that occurred on the property more than three years ago. Accordingly, it is prudent to disclose deaths that have occurred within the last three years because of potential liability.

When is a Pet Not a Pet? Accommodating Persons with Disabilities

Many owners protect their investment by not allowing any (or certain types) of pets on the property due to possible damage by the pet and the fact that existing law may not allow for an adequate security deposit to cover the damage. However, recent laws on fair housing and accommodating persons with disabilities now restrict the ability of owners to have an “absolutely no pets” policy.

A guide dog leading a blind person is the image that usually comes up when one thinks of a service animals helping a disabled person. However, guide dogs are not the only type of animal which can be considered a “necessary and reasonable accommodation” and federal and state anti-discrimination laws broadly define disabilities to include both physical and mental impairments.

This paper will provide needed background and guidance for owners who have questions concerning this issue.

II - FEDERAL LAW

A. The Federal Fair Housing Act (FHA)

The Federal Fair Housing Act, as amended by the Fair Housing Amendments Act of 1988, requires property owners to make reasonable accommodations for a person with a disability, to enable them to enjoy the residence on an equal basis with tenants who are not disabled. 42 U.S.C. §3604(f)(3)(B).

The fair housing regulations state that “It shall be unlawful for any person to refuse to make reasonable accommodations in rules, policies, practices or services, when such accommodations may be necessary to afford a handicapped person equal opportunity to use and enjoy a dwelling unit, including public and common areas.” 24 CFR §100.204(a).

The only specific mention of pets or service animals in either the law or regulation is the following illustration given in the regulations which address an owner’s failure to make a necessary and reasonable accommodation:

A blind applicant for rental housing wants to live in a dwelling unit with a seeing eye dog. The building has a no pets policy. It is a violation…for the owner or manager… to refuse to permit the applicant to live in the apartment with a seeing eye dog because without the seeing eye dog, the blind person will not have an equal opportunity to use and enjoy a dwelling. 24 CFR §100.204(b).

1. What kind of animal is a necessary and reasonable accommodation? Although it is clear that the FHA does require that service animals be allowed in a residential dwelling when reasonable and necessary to afford a disabled individual fair use and enjoyment of the property, it is not clear what type of animal is “necessary and reasonable.” A federal appeals court has ruled that the reasonableness of a requested accommodation is a question of fact, determined by close examination of the circumstances. US v. California Mobile Home Park Management Co., (9th Cir. 1994) 29 F3d 1413. To be reasonable, the accommodation “must facilitate a disabled individual’s ability to function and it must survive a cost benefit analysis that takes both parties’ needs into account.”
Bronk v. Ineichen (7th Cir.1995) 54 F3d 425.

a. The animal must facilitate the disabled individual’s ability to function. To prove that an accommodation is necessary, a plaintiff must, at minimum, show “that the desired accommodation will affirmatively enhance a disabled plaintiffs quality of life by ameliorating the effects of the disability.” Bronk v. Ineichen, (7th Cir. 1995) 54 F3d 425. In Bronk, the property owner argued that the tenant’s dog was not a service animal because it had no formal training. The court ruled that the jury should evaluate the dog’s ability to help the plaintiff and assign its own weight to the lack of formal schooling. In some situations, no training may be necessary for the animal to ameliorate the effects of a tenant’s disability. A HUD administrative law judge has ruled that a dog with no particular training was a necessary and reasonable accommodation for a tenant with severe recurring depression. HUD v. Riverbay Corp., HUD ALJ 02-930320.

b. Restrictions on type of animal.  Because the act does not define “reasonable accommodation,” there is no clear guidance on what types animals must be allowed as accommodations for disabled tenants. Dogs are the most common, but not the only animals, requested by tenants. In some circumstances, other animals such as cats or monkeys could arguably be necessary and reasonable accommodations, as long as they ameliorate the effects of the tenant’s disability.

c. Licensing or training requirements.  Property owners cannot require that a service dog have a certificate from a state-licensed training school. Bronk v. Ineichen, (7th Cir. 1995) 54 F3d 425.  By analogy, an owner could not demand that an assistance dog have an official tag. Again, the issue is whether the animal facilitates the individual’s ability to function. This may or may not require special training or licensing.

2. What is a disability?

“[A] physical or mental impairment which substantially limits one or more major life activities… “such as caring for one’s self(sic), performing manual task, walking, seeing, hearing, speaking, breathing, learning and working.” 24 CFR §100.201. A landlord cannot ask whether the person is disabled, what kind of disability the person has or how severe the disability is. 24 CFR §100.202. “If a landlord is skeptical of a tenant’s alleged disability or the landlord’s ability to provide an accommodation, it is incumbent on the landlord to request documentation or open a dialogue” with the tenant. Jankowski Lee and Assoc. v. Cisneros (7th Cir1996), 91 F3d 891. Since the owner cannot ask about the disability, the owner should ask for documents showing that dog or other animal is a reasonable accommodation and how it is necessary for use and enjoyment of the building.

B. Americans with Disabilities Act (ADA)  

The ADA does not apply to private residential rental properties, except to the extent that the property is also a place of “public accommodation.” For example, the ADA would apply to an apartment complex rental office and to a unit used as a retail store, for example. The ADA specifically requires that service animals used by disabled individuals be allowed in places of public accommodation. ADA Title III, §36.302 “Service animals” include guide dogs, signal dogs and or other animals individually trained to do work or perform tasks for the benefit of an individual with a disability. ADA Title III §36.104. Although they are not directly applicable, agency interpretations of the term “service animal” under ADA can shine some light on what animals (at minimum) could be considered reasonable accommodations language under the Fair Housing law.

It is important to remember that the FHA is broader than the ADA, because it allows any animal if it is a necessary and reasonable accommodation, rather than just “service animals” with a particular type of training.

Under the ADA, it is clear that an animal other than a dog can be a service animal, as long as it has the training to be “service animal.” In an opinion issued by the US Attorney General-Civil Rights Division, a disabled individual entering a hotel accompanied by a monkey as a service animal, is presented as an example of a situation where the ADA applies. Opinion letter of USAG, Civil Rights Division to Corey Hudson 10/26/92 DJ#192-06-00029.

III - CALIFORNIA LAW

California’s fair housing law (the Unruh Civil Rights Act) mirrors the language of the federal Fair Housing Act. “Any person renting, leasing or otherwise providing real property for compensation shall not refuse to make reasonable accommodations in rules, policies, practices or services, when those accommodations may be necessary to afford an individual with a disability equal opportunity to use and enjoy the premises.”   Civil Code §54.1(b)(3)(A).

A. What type of animal is a reasonable accommodation?

Like the federal act, California does not define “reasonable accommodation.” The California law’s main departure from federal law is that it allows owners with a “no dog” policy to refuse to rent to an individual with a disability who has a dog, unless the dog meets certain requirement. Civil Code §54.1(b)(6)(c). The dog must be a “guide dog,” a “signal dog” or a “service dog.” A “service dog” is “any dog individually trained to the requirements of the individual with the disability, including but not limited to minimal protection work, rescue work, pulling a wheelchair or fetching dropped items. This means a tenant could not establish that a dog is a reasonable accommodation for his/her disability, unless the dog has a particular type of training.” California law also provides for issuance of a special tag to owners of guide dogs, signal dogs and service dogs, but does not require use of the tag . F & A Code 30850-30852

The California law completely fails to address service animals that are not dogs. As a result an owner with a “no pets” policy, may have to allow a cat or other animal if it is a reasonable accommodation, even if it is not trained as a service animal.

B. What is a disability?

The California Civil Code defines disability in essentially the same way as federal law. “[A] physical or mental impairment that substantially limits one or more major life activities of the individual.” Civil Code § 54(b). California law also forbids property owners from inquiring about the disability of any person seeking to rent any housing accommodation. Government Code §12955(b)

IV - RELATIONSHIP BETWEEN STATE AND FEDERAL LAW

It is clear from court decisions and agency interpretations of the federal fair housing law and the ADA , that federal law controls when it is more protective of the disabled person.  In the Bronk case, the court ruled that it was wrong to use standards borrowed from state and local laws to evaluate the concept of “reasonable accommodation” under the federal fair housing law, because the state and local laws were narrower (they required formal training). The U.S. Attorney General has also stated that the ADA does not preempt State law, if the State law provides protection greater than that provided by the ADA . The ADA does, however prevail over conflicting state laws that provide lesser protection. Opinion letter of USAG, Civil Rights Division to Corey Hudson 10/26/92 DJ#192-06-00029.   As a result, an owner who complies with California law, could still be in violation of federal law. As discussed above, the question is whether the animal helps the particular tenant with his/her disability.

V - PROPOSED CALIFORNIA LEGISLATION

SB 2077 (D-O’Connell 1996)

Under SB 2077, property owners, mobile home parks and home owner associations could not prohibit the following person from having pets: (1) disabled individuals who have a written authorization from a health care professional, regarding the pet as part of a treatment plan and (2) persons aged 62 or over, regardless of disability. Pet is not defined, but owners are allowed to set policies regarding breeds and types of pets, so long as there is no conflict with federal and state fair housing laws. Of note is the Assembly Housing and Community Development Committee’s analysis, which concluded that as applied to disabled persons, this law was unnecessary because fair housing laws already required reasonable accommodations. This bill died in the Assembly Housing Committee.

AB 2020 (D-Thomson 1998)

This bill would have required condo associations to allow condo owners to have a pet, if they are disabled or regarded by a physician or psychologist as needing a pet. “Pet is defined as domesticated bird, cat, dog, aquatic animal kept within an aquarium, or other animal as agreed between the association and the homeowner.” This bill was vetoed by the Governor.

VI - PUBLICLY OWNED HOUSING

California Law requires that public agencies that own or operate rental housing accommodations cannot prohibit a “person requiring supportive services” as defined in Health & Safety Code §50685.5. or an elderly person (over 62) from keeping not more than two pets. Health and Safety Code 19901. This law does not require the animal to be a “service animal” at all.

VII - CONCLUSION

Unfortunately the conclusion is that neither an owner nor a tenant cannot know what a reasonable accommodation is, until it is decided by a court. However, there are several lessons to be learned from the laws and decisions so far. (1) Don’t ask the tenant about their disability. (2) If a tenant requests an animal as an accommodation for their disability, ask how you, as the property owner, can be sure that it is a service animal and not just a pet, so that other tenants don’t feel unfairly treated. (3) Ask tenants who make a request, to put the request and any information regarding the animal in writing. Keep these documents on file. (4) If you are skeptical about tenant’s disability, or whether the animal really helps the tenant, consult an attorney familiar with fair housing laws.

California Apartment Association
www.caanet.org
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Can Underage People Live in Senior Housing?
Fair Housing - California
by:  Lynn Dover, Kimball, Tirey & St. John

This is one of the questions most frequently asked by clients who operate senior housing in California. As with so many questions, the answer is: it depends. The first question that needs to be asked is whether the property is a 55 and older property, or a 62 and older property.

In 62+ senior housing, the answer is simple. No one under the age of 62 is permitted to live there, with three exceptions: 1) a live-in caregiver who might need to live with the senior as a "reasonable accommodation" based on the disability of a resident; 2) an employee under 62 whose duties require that the person must live on the property; and 3) underage occupants residing at the property prior to 1/1/85 (California law) 9/13/88 (Federal law) are allowed to continue their tenancy.

55+ senior housing is more complex. The California Unruh Civil Rights Act (which sets forth the rules for senior housing in California) was amended in 2000 to require that, for all tenancies beginning 1/1/01 or after, at least one member of the household must be 55 or older. There are no exceptions to this rule in non-subsidized housing, which means that underage, disabled residents may not move into a 55+ property by themselves - they would have to live with a "qualifying senior" (someone 55 or older) in order to legally reside in the community. There are some federal subsidy programs, which are entitled "elderly/disabled." In properties operated under those programs, an exception may need to be made in order to comply with the program requirements, although this still violates state law.

With respect to secondary residents (those living with the qualifying senior), the most restrictive rules allowed are to require those secondary residents to be "Qualified Permanent Residents." Qualified Permanent Residents must be 45 years or age or older, unless the person is: 1) a spouse or cohabitant; 2) a person who provides primary economic or physical support for the senior; or 3) a disabled child or grandchild who needs to live with the senior or the Qualified Permanent Resident because of his or her disabling condition. Further exceptions would be person under age 55 who resided in the complex prior to 1/1/85. Finally, if the number of units on the senior property exceed the minimum requirement of 35 (or 21 in Riverside County) additional units may be occupied by under-age employees providing all other requirements of the Unruh Act are met.)

It is important for clients who operate 55+ senior housing to specify what age limit they have set for the secondary residents who do not fit other exceptions. Remember that the age limit cannot be more restrictive than what is set forth above. For instance, it would be more restrictive if you said the secondary residents must be at least 46 years of age and less restrictive if the secondary residents could be 44 years of age (or some other, younger limit). We recommend that you specify the age limit in your rental criteria, on the application and in the lease. If you do not set an age limit for secondary residents, it could be presumed that you will allow persons of any age to live with the qualifying senior (including children).

Additionally, the Unruh Civil Rights Act has specific provisions for a live-in caregiver in 55+ senior housing (the Act refers to caregivers as "Permitted Health Care Workers.") If a resident needs a live-in caregiver in a 55+ property, you may want to obtain legal advice to ensure you are in compliance with these provisions.

In any event, if you operate senior housing in California, it is important to comply with all of the laws governing senior housing so you don't risk losing your property's "senior" status. If your property was financed using tax credits, a violation of the senior housing laws (which could be a fair housing violation) could also result in a loss of those tax credits.

Please note that senior mobile home parks are not covered by the California Unruh Civil Rights Act, but rather are governed by federal senior housing laws. Since conflicts between state mobile home residency laws and federal senior housing laws can create legal problems, if you operate a senior mobile home park, you may want seek legal advice on the specific requirements of federal law.

The Fair Housing Department of KTS can provide written legal opinions and formal reviews of your company's documentation to assist you in your efforts to comply with all applicable senior housing laws. KTS also has forms available for purchase, such as caregiver addenda for senior properties. style='font-size:10.0pt;mso-bidi-font-size:12.0pt;font-family:"Berlin Sans FB"'>This article is for general information purposes only. Before acting be sure to receive legal advice from our office. If you have questions about this article, please contact Lynn Dover at (800) 338-6039.

Medical Marijuana Dilemma for Landlords

by J. Kathleen Belville,   Kimball, Tirey & St. John

A recent decision published by the U.S. Supreme Court regarding a California case based on the legality of medical use (and cultivation) of marijuana has created even more of a dilema for California landlords. The cutting edge issue is: does the decision affect your duties as an owner or manager of rental property, and if so, how?

California is one of several states which have enacted laws that consider marijuana use and cultivation to be legal when there is appropriate medical justification. Many local jurisdictions in California have passed ordinances which specify the circumstances under which such use or cultivation will be allowed. Based on these statutes, tenants (primarily in housing, but in some commercial properties as well) have asserted that their landlord cannot control medical use or cultivation of the drug beyond the restrictions established in state and local law.

Our law firm has frequently been asked to counsel clients on this issue in the past. We have opined that although medical use and cultivation may be legal under state and local laws, federal laws did not contain an exception for medical purposes. This conflict of laws put landlords in an uncomfortable position.

An affected tenant would argue that medical use should be allowed as a disability accommodation because it is legal under California law. The landlord would then have to consider whether prohibiting such use on his property because it is not allowed under federal law might cause him to be sued for discrimination under state law. In other words, would allowing such use be deemed to be a "reasonable" accommodation under the circumstances? Although the question had not been addressed definitively in case law, clients were directed to make risk management decisions, considering that federal law failed to legalize medical use or cultivation and that U.S. law generally supercedes state or local law where there is a direct conflict.

The argument in the lower courts that state law, rather than federal law, would apply was based on the allegation that there was no "interstate commerce" involved. The Supreme Court disagreed, deciding that there was federal jurisdiction even if the cultivation was not for commercial purposes and the product was not transported across state lines. The court did not give an opinion on whether marijuana should be re-classified under the federal Controlled Substances Act as a drug which is recognized as having medicinal uses. The narrowness of the ruling leaves the door open for further controversy in the administrative arena or a possible resolution through new legislation by the U.S. Congress.

For now however, the Supreme Court's ruling is controlling. Federal law enforcement agencies can clearly punish California residents under federal law for medical use or cultivation which would otherwise be legal under state or local law. Early media reports indicate that federal agencies do not plan to pursue criminal prosecution of individuals for medical use of marijuana. Even if that information is correct, it is unlikely that a landlord would be expected to allow the violation of federal law on a rental property as a "reasonable accommodation" for a disabled tenant.

For more information regarding this issue and related issues, consider the following resources:

Death of A Resident

What to do when a resident dies in the rental unit

A month-to-month tenancy terminates upon notice received by the owner of the tenant’s death. For purposes of rent, the termination is effective 30 days after the last rent payment. In any death that is investigated by a coroner, the coroner may take charge of any and all personal items and property of a deceased person at the scene of death or related to the inquiry and hold or safeguard them until new ownership is determined. The coroner is allowed by law to lock the premises and apply a seal to the door or doors, prohibiting entrance to the premises, pending arrival of a legally authorized representative of the deceased.

In a situation where the coroner has not sealed the property or taken control of the personal items of the deceased, the owner should never allow an unknown third party to take possession of any personal property of the deceased. An owner should require relatives or an appropriate agent to identify themselves and present proof that they have been appointed by the court to take the deceased’s possessions. The owner should require that the individual who takes the possessions sign a written receipt. If the relatives are unable to prove their authority to take possessions, the   County Public Administrator  should be contacted by the owner, and the Administrator’s procedures should be followed by the owner. A court-appointed representative or relative should have a document entitled “Letters of Administration” or “Letters Testamentary.” If the value of the possessions does not exceed a level set by a local court, certain relatives may be authorized to accept the possessions without a court order. Since this level is interpreted differently by different authorities, an owner should consult legal counsel.

Disclosure of Death Within the Last Three Years

Owners may be liable for failure to disclose to prospective tenants deaths that occurred on the property within the last three years. By law, however, owners are immune from liability for failure to disclose to prospective tenants the death (and the manner of death) of an occupant on the property that occurred more than three years ago. Owners are also immune from liability for failure to disclose that a previous occupant died from, or was afflicted with, AIDS. Owners, however, are not immunized from liability for intentional misrepresentations in response to a direct inquiry concerning deaths on the property.

Related Items and Information

California Civil Code Section 1710.2
California Government Code 27491.3
For more information, please contact CAA or your local CAA chapter.

 

                     Abandonment of Real and Personal Property

When the rental unit has been abandoned and/or personal property left behind by the resident(1)

California state law outlines specific notice requirements and waiting periods that owners of rental property must follow if they believe that the rental unit has been abandoned and personal property left behind by the resident. This information is intended as a general overview. There are many technical requirements and optional legal provisions that apply. When proceeding for the first time or especially when moving forward with the sale of a former tenant’s personal property, you should consult legal counsel. CAA provides forms that meet the specific requirements of this law.

What Owners Must do when they Believe the Unit has been Abandoned by the Resident:

• If rent has not been paid by the resident 14 days after the due date and the owner reasonably believes that the residents will not return, the owner must complete a “Notice of Belief of Abandonment”(2) form and serve the residents.

• The notice must be personally served on each resident who formerly lived in the unit(3) or may be sent by the owner first-class mail to the residents at their last known address, which may be the address just vacated.(4) The owner must also mail the notice to any address known to the owner as a place where the residents may reasonably be expected to receive the notice.

• The unit is not considered abandoned if one of the following occurs:

Prior to the date in the notice, the resident responds in writing stating his/her intent not to abandon the property and states an address for service by certified mail.

The resident pays all or some portion of the rent due.

The resident can show that the owner did not have reasonable belief that the property was abandoned; or

At the time the Notice of Belief of Abandonment was given by the owner, the rent was not due and remained unpaid for 14 consecutive days.

• The owner may serve a Three-Day Notice to Pay or Quit at the same time – or before – proceeding with the abandonment proceedings.

• If the resident fails to respond within the time outlined in the notice, then at the completion of the time period, the owner may enter the unit and take necessary action to re-rent the property.

• If there is personal property left by the former residents, the owner must inventory the property and provide the resident with the appropriate notice – see below.

What Owners Must Do if Residents Abandon Personal Property:

• When personal property is left by a resident after the termination of a tenancy, upon eviction, or when a former resident has abandoned the rental unit, the owner should attempt to contact the resident and ask him/her to return for the items. If the owner cannot reach the former resident by telephone, the owner must provide a written notice to the resident and any other person the owner reasonably believes to be the owner of the personal property.(5)

• The notice must be personally served on the resident(6) or sent by first-class mail, postage prepaid, to the resident at the resident’s last known address.(7) If there is reason to believe that the notice sent to that address will not be received by the resident, the owner must send the notice to any address known to the owner as a place where the resident may reasonably be expected to receive the notice.

• The property left on the premises must either be left on the vacated premises or be stored by the owner in a safe place until the owner either releases the property or disposes of it.

• If the owner reasonably believes that the total resale value of the property not released is less than $300, the owner may retain the property for his own use or disposition. If owners reasonably believe the property is valued at more than $300, they cannot keep it for their own use. (See the Sale option outlined below.)

• Upon request by the former resident, the owner must release the personal property to the former resident if all of the following occur:

The resident requests, in writing, return of the personal property within 18 days of vacating the premises, and the request includes a description of the property and specifies the mailing address for the resident.

The owner or the owner’s agent has control or possession of the personal property at the time the request is made.

The former resident pays the owner for the costs of removal and storage of the property.

The resident must agree to claim and remove the property at a reasonable time mutually agreed upon by the owner and resident, but no later than 72 hours after the former resident pays the costs of storage.

Sale of Property – Optional Proceeding:

• The owner may sell the former resident’s personal property at a public sale.

• The former resident must be notified by the owner that the personal property may, or will be, sold at a public auction.(9)

• The date and time for the sale must be noticed in a newspaper of general circulation.

• No later than 30 days after the date of the sale of the personal property, the owner must give the proceeds of the sale to the treasury of the county in which the sale took place. The owner may deduct the costs of storage, advertising, and sale.(10)

What Owners Cannot Do:

• Even if the owner has obtained a judgment for rent against the resident, the owner cannot demand payment of rent in exchange for return of the resident’s possessions.

• The owner cannot keep for his/her own personal use or disposal the personal property belonging to a former resident when the total resale value is reasonably believed to be more than $300.

• Civil Code Section 1951.3 and Civil Code Section 1965

• CAA Managing Rental Housing Reference Book – Fourth Edition
______

(1)This Insight does not cover the requirements for the disposition of an animal that may have been abandoned by a former resident. Consult Section 17001 of the Food and Agricultural Code or consult legal counsel for details.

(2)The California Apartment Association has pre-printed forms available that meet the requirements under this law.

(3)If the owner personally serves the notice, the residents must be given 15 days to respond.

(4)If the owner serves the resident by mail, the residents must be given 18 days to respond.

(5)The California Apartment Association has pre-printed forms available that meet the requirements of this law.

(6)If the owner personally serves the notice on the resident, the owner must give the resident at least 15 days to claim the property.

(7)If the owner serves the notice by mail on the resident, the owner must give the resident at least 18 days to claim the property.

(8)The owner must spell out in writing the costs associated with the removal and storage of the property and must mail it to the resident or personally give the notice to the resident within 5 days of the receipt of the resident’s request for the property.

(9)The owner may bid on the property at the public sale.

(10)Government Code Section 6066 provides the requirements for the public notice.

                 Governmental Agencies and Private Individuals Rights to
                                  Tenant Information and Rights of Entry

by Ted Kimball and Craig McMahon
Kimball, Tirey & St. John

Introduction

This article concerns itself with instances wherein government agencies and private individuals may appropriately have access to information that has been exchanged between you and your tenants or have a right of entry into the apartment unit. Because of the wide variety of requests for information and numerous laws regarding the release of information, it is difficult to always act appropriately. This article is intended to clear up some of the confusion, but the specific instances mentioned are not intended to represent an exhaustive list of all possible circumstances under which you might be compelled to provide information or permit access to the property. Generally these requests are related to a court action and you receive a subpoena or search warrant, which should be honored subject to the appropriate formalities. There may be circumstances, however, when formalities are not required.

Entry into the Apartment

Pursuant to California Civil Code §1954, the owner or manager may enter the tenant's unit at any time in case of emergency, or upon reasonable notice (twenty-four hours is presumed reasonable) if the entry is to make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors. Entry is also allowed when the tenant has abandoned or surrendered the premises, or pursuant to court order.

The notice is not required to be in writing, although we recommend that written notice be used. Presumably, owners and managers also may enter without fear of liability when the tenant consents to the entry for other purposes, but they cannot waive their right to limit the owner or manager to the boundaries of CC 1954.

The entry may only be during "normal business hours", which are not defined by the statute. In the past, our firm has been successful in convincing many judges that landlords should be allowed entry for purposes of showing the property to prospective purchasers or tenants on Saturdays and/or Sundays, so long as the entry is during reasonable times.

If the landlord complies with the notice provisions of CC 1954, but the tenant refuses to allow access to the premises, the landlords' remedies are unspecified. If the tenant occupies the property through a month-to-month agreement, the landlord may simply elect to terminate the tenancy by threatening or giving a 30-day notice to quit. In most cases, depending upon the language of the lease, a 3-day notice to perform conditions and/or covenants of the lease may be used. If you use this form, we recommend you request the tenant to provide you with reasonable dates and times to enter the premises. Failure to comply could lead to an action for unlawful detainer.

A landlord who needs to obtain access to the premises before an eviction can be completed may have to seek a court order requiring access. Section 1954 specifically authorizes entry under a court order.

May the landlord enter under Civil Code 1954 over the objection of the tenant? In California, tenants have the right to the exclusive possession of the leased premises. California landlord/tenant laws also prohibit "self help" in enforcing possession and other actions that could be construed as a "forcible detainer". Landlords who wish to test this right would likely be subject to civil and possible criminal actions for trespass, infliction of emotional distress, and in some cases, additional actions for alleged theft or damage to personal property. It would also be difficult to defend against an argument that the legislature inserted the specified right to enter "pursuant to a court order" to allow landlords a specific remedy for the wrongful refusal of a request to enter.

Because of the above, we strongly recommend that you do not enter the premises for a lawful purpose after the tenant has refused entry, but take legal action to enter the premises in a peaceable fashion. Not only will you risk liability, court costs and attorneys' fees but an altercation that may end up in physical harm or damage to the property.

Law enforcement officials may always enter your dwelling unit pursuant to a valid search warrant. There are also some circumstances wherein law enforcement may enter your apartment without a search warrant. They may be permitted to enter a dwelling when they are in "hot pursuit" of a fleeing criminal or in emergency situations involving immediate hazards to life and limb or serious damage to property, or to prevent the imminent destruction, removal, or concealment of evidence. Examples include such things as fires, detected gas leaks, indications of physical distress such as cries of pain, or the detection of the smell of smoke or hazardous chemicals.

Certain subsidized housing programs administered by the U.S. Department of Housing and Urban Development (HUD) contractually require that the tenant grant a right of access to the premises to confirm compliance with subsidy participation requirements.

Review of the Tenant's File

Pursuant to California Civil Code §1799.1 (b), a business entity engaged to perform 'bookkeeping services" shall disclose records to a law enforcement agency, incident to a criminal activity investigation, unless otherwise prohibited by law. Records concerning security deposits, or other accounts with regard to "books, trial balances, prepared statements, audits or prepared reports," can be revealed without a subpoena. However, documents such as your rental applications, lease, correspondence or other written materials, and other records could be claimed to be outside the scope of CC 1799.1 (b), but it is likely that the court could construe "prepared reports" broadly and interpret the statute to include protection for the revelation of these documents as well.

In some instances, taxing authorities may be entitled to view your records without a subpoena for purposes of tax administration, provided that the tenant, as the taxpayer, is given prior notice of the inspection. Title 26, United States Code §7602 allows the IRS to "examine any books, papers, records, or other data which may be relevant…for the purpose of ascertaining the correctness of any return, making a return where none has been made, determining the liability of any person for any internal revenue tax…of any transferee or fiduciary, or collecting any such liability." This power is subject to giving the taxpayer "reasonable notice in advance" that contacts with the lessor/manager will be made for these purposes. There is no requirement of subpoena contained within this statute.

Title 12, United States Code §223 requires third parties to assist census takers seeking information about residents in apartment buildings. The owner or manager must "furnish the names of the occupants of such premises, or ... give free ingress thereto and egress therefrom." Refusal or willful neglect to comply with this inquiry subjects the lessor/manager to a fine of $500.00. You are required to provide the census taker with general access to the entryways of individual units and not the units themselves.

When the tenant is a party to a lawsuit, as the result of having sued someone or having been sued, or when a judgment has been entered against them, the other party may have some grounds to compel property owners and managers to provide information concerning their tenancy. However, this information cannot be demanded on an informal basis. The party to a lawsuit or a judgment creditor must present a civil subpoena before you are compelled to reveal information about your current or former tenants. This can include such items as the lease, rental application, balances of the security deposit, and any correspondence. Any other written materials held in the tenant file may be subject to inspection in the course of litigation or collection on a judgment. Generally the opposing party will have given the tenant or their attorney notice of the material being sought. Some owners and managers refrain from responding to the subpoena until the date specified for the production of the documents. The purpose of this is to afford the tenant the opportunity to promptly take such steps as are necessary to deal with the subpoena if they believe the request is inappropriate.

When the resident consents through a tenant application or lease for the review of documentation, the same is subject to inspection. For example, waivers of the right to privacy are included in many applications for tenancy and employment. Applications for extension of credit, for medical or life insurance, the presentation of references, or any other transaction in which the private records of the individual are germane, may be the subject of inspection where the resident has contracted for such by, for instance, signing an authorization for release of information.

Conclusion

Most rental property owners and managers are dedicated to providing their tenants with peaceful and quiet enjoyment of their living unit. Because of this, many have adopted, as a matter of general policy, the business practice to not reveal any information concerning the relationship between them and their tenants and they insist that persons and authorities demonstrate to their satisfaction that the person seeking the information has the authority to obtain it.

In that the number of possible sources for requests for information is very extensive, it would be very difficult to prepare a comprehensive "checklist" of the documents to be presented, categories of information sought and the rules to be followed with respect to each one. Even then, there is a risk of misunderstanding the documentation/request received.

As indicated above, you might reasonably anticipate requests from law enforcement, from civil litigants, from a taxing authority, from persons making inquiries for the purpose of obtaining references, and from persons attempting to pursue background investigations. Generally speaking, each of these types of requests should only be entertained if the request and the response are to be undertaken in writing. Additionally, these types of requests should only be entertained if the person seeking the information has demonstrated their bona fides by presenting you with written consent from the tenant or documents that recite the authority under which the request for information is presented. The bona fides of each should be dealt with on a case-by-case basis and any doubts should be resolved by consultation with senior management or legal counsel.

This article is for general information purposes only. Before acting be sure to receive legal advice from our office.    If you have questions about this article, please contact the nearest KTS office in your location.