By Michael A. Brennan, Esq., Brennan Law Firm
As many landlords already know, the eviction landscape has changed considerably over the past 2-3 years as a result of both an explosion of tenants’ rights attorneys (funded in large part by the Shriver Project) and the dramatic increase in jury trial demands. This article is a very short overview of a couple of situations being exploited by tenants’ attorneys, and some suggestions on what landlords can do to minimize the negative effects of those situations. The dual purpose of the article is to first, inform landlords about various factors and circumstances that lead to a weak negotiating position for landlords in eviction case and, second, offer some suggestions that designed to keep the eviction process as fast and cost efficient as it was originally intended to be.
The factors and circumstances I referred to which cost landlords negotiating strength in an eviction can be summarized as falling into two categories, both of which are well known by tenants’ attorneys and capitalized on at the landlord’s expense. The first category is a lack of knowledge by landlords about the laws affecting their landlord-tenant relationships in a manner that protects them from the shenanigans of savvy tenants or their attorneys.
First, let me provide an example of a lack of knowledge of the laws that can cause a landlord to lose his or her case before it even begins. Many landlords in Los Angeles own and operate buildings falling under what is commonly known as “rent control” (RSO). Under the RSO, a landlord may neither demand nor collect rent from a tenant unless they have first complied with various requirements of the ordinance. For example, landlords are required to serve a copy of their current registration to each tenant every year prior to asking for, or accepting, rent. The failure of a landlord to do so provides tenants with what is known as an “affirmative defense” to an eviction. In other words, if a tenant claims the landlord failed to serve the tenant with a copy of the registration, and the landlord is unable to prove that he or she did, in fact, serve it, the tenant will win the lawsuit, and the landlord will have to start from the very beginning of the process again by re-serving a new 3-day notice to pay rent or quit and filing a new eviction case.
And this is after losing several months of rental income, spending about a thousand dollars on the eviction, and waiting approximately 6-8 weeks for a trial! I have stood in court countless times and watched the astounded faces of landlords after hearing the judge rule in favor of the tenant, all because the landlord was unaware of the requirement of serving the tenant with a copy of his or her registration each year.
An example of the second category I mentioned above (an absence of procedures for handling their landlord-tenant relationships) which costs landlords negotiating strength in an eviction case can be seen with landlords who fail to document the condition of the apartment when a tenant takes possession of the unit and throughout the course of the tenancy. A landlord’s inability to document the condition of the unit often allows a tenant to successfully raise “breach of warranty of habitability” as an affirmative defense. Most landlords recognize that the defense of “habitability” is often misapplied by judges, who expand its original requirement to cover situations and circumstances which were never meant to be covered by the defense, thereby providing tenants with the ability to default on their monthly rental obligation without the fear of losing at trial and being evicted. (I don’t have to explain that defense or how it plays out in an eviction to anyone who owns apartments).
So, what are my suggestions to counter that? For new tenants, consider taking pictures of the unit with the date and time stamp on your camera turned on the day before you turn over the keys to the tenant. Print the pictures and bring them to the move-in inspection (you are doing a move-in inspection, right?). As you go through each room with the move-in condition form, have the tenant date and sign the back of the picture representing the condition of that room. Furthermore, consider having as part of your leasing documentation a provision or addendum in which the tenant grants permission in advance for an inspection of their unit on a regular basis (quarterly, semi-annually, etc.) for necessary repairs, smoke-carbon monoxide detector inspections, etc. When you arrive for the inspection, have a form with you which documents: 1) whether the tenant permitted or refused access, 2) the condition of the unit, 3) what, if any, repairs need attention or were made on the spot; and, 4) whether the tenant is representing that the unit is in “no need of repairs”. Have the tenant sign the form or, alternatively, note that the tenant refused to do so. Don’t forget to bring your camera.
The bottom line is that the landscape of evictions has changed, requiring a greater level of diligence on the part of landlords. Tenants are receiving free, aggressive, legal representation. Their attorneys are knowledgeable in the areas of law that affect your business, and they know how to employ those laws to the detriment of landlords, dragging out the eviction process and costing landlords thousands and thousands of dollars in lost rent, attorney fees, and court costs in the process. In order to adequately protect themselves, their assets, and their income streams, landlords will have to step up their game by becoming knowledgeable about the requirements of the laws regulating their industry and implementing policies and strategies to combat the tenants and their attorneys.
The foregoing information is presented and intended to address the topic(s) covered above in a general nature, and not as specific legal advice. Specific situations and their facts should be presented to our attorney for review. Mr. Brennan is a frequent speaker and contributing author for various landlord publications, and may be reached at (626) 294-500, or toll free at (855) 285-2230. Please visit our website at www.mbrenantlaw.com for more information.