Best Way to Evict Noisy Tenant

From Project Sentinel

Question: I am new at being a landlord and I have a tenant who is causing me a lot of problems. He seemed like a nice guy when I rented to him, but I would now like him to move. Trouble is, he is on a lease that doesn’t end for 10 more months.

Among the problems is his lifestyle. He plays the TV or stereo too loud, and he has many late-night parties. I have warned him and pointed out the section of his rental agreement that prohibits this behavior. He promises to change, but he doesn’t. Now other tenants are complaining about his activities.

A friend says I should give him a Three-Day Notice to Perform Covenant or Quit, or an unconditional notice. What is the difference and which one do you recommend?

Answer: The unconditional Three Day Notice to Quit is generally used when there are serious breaches--drug dealing, improper subletting or serious damage to the property--that cannot be corrected.

The unconditional notice requires the tenant to move within three days and allows no other option. It is used when the problem cannot be corrected. He is to be out, and if he isn’t, the owner can start legal action for eviction at the end of the notice period.

As you describe your problem, this notice is not appropriate in this situation because the tenant may be able to change his behavior.

A Three-Day Notice to Perform Covenant or Quit must specifically set forth the breach (the behavior in question) on which the notice is based, so that the tenant has an opportunity to remedy the breach.

If the tenant does not correct the problem within the three-day notice period, the property owner may start legal action for evicting the tenant.

In using the Three-Day Notice to Perform Covenant or Quit, be sure you give your tenant the option of staying if he modifies his behavior. In this case he must turn down the volume on the TV and stereo and control his guests.

You may want to consult a lawyer for an individual assessment of the particulars of these two types of notice or request help from your local mediation service.

A mediation would allow you and your tenant to discuss the problems in a calm, non-adversarial environment with the expectation that you would reach a final agreement of your own making.

30-Day Notice Needed to End Agreement

Q: Six months ago, when I couldn’t find suitable housing, I sublet a room from a friend. My friend listed me as an “occupant,” not a “tenant,” on our rental agreement. She now wants me to move out next week, and says that since I am not a “tenant,” she doesn’t have to give me a 30-day notice to move. Is this correct?

A: Regardless of the terminology used in the rental agreement, since you have been living in this room and paying rent for several months, you have established tenancy.

Your friend, who is acting as the prime tenant, has to give you a 30-Day Notice of Termination of Tenancy if she wants you to move.

To make things easier for your friend, who helped you out when you needed housing, you may try to move out as soon as possible. If you cannot do it sooner than 30 days, you should explain the legal requirements for terminating a tenancy to your friend and note that you need the full 30 days to find new housing.

You may also call your local housing program and ask about setting up a mediation for the two of you to work out a solution that benefits everyone.

Standard Paint Fee Is Not Permitted

Q: I pride myself on maintaining my properties in excellent condition. My policy is that when a tenant moves out, the unit will be professionally cleaned and, regardless of the length of the tenancy, repainted. I have a standard painting charge of $700 for a one-bedroom unit and $900 for a two-bedroom unit.

A former tenant now says the painting charge is not legal and that if I insist on that charge, he will take me to Small Claims Court.

Even though my rental agreements spell out this charge--so he knew before he moved in--he still disagrees. I would like to avoid court, but I don’t want to give in. What do you think?

A: Your policy of charging, regardless of the condition of the walls, seems like a nonrefundable deposit, which is prohibited by California Civil Code 1950.5.

Standard charges, such as painting an apartment whether it is needed or not, regularly refurbishing kitchen counters or a standard cleaning charge (draperies, for example) are not permitted.

To avoid going to court, you may try to involve your local mediation service, which could arrange a meeting between you and your former tenant facilitated by a mediator. Such a meeting could allow both of you to voice your concerns and could well result in an amicable agreement.

Manager Must Give Notice Before Entering

Q: I recently gave the manager of my apartment complex a 30-day termination notice. Last Saturday when I came in after shopping, I found the manager in my apartment showing it to a prospective tenant. I let it pass. Then yesterday when I got home, I found evidence that someone had been in the apartment--closet door left open and a light in the bathroom left on.

I confronted the manager, and she said she has the right to show the apartment at any time, and I should check my rental agreement, which stated that the management is not required to notify the tenant about showings. Is this provision in the agreement valid?

A: No. The management must give you notice of their intention to enter your apartment. Any clause to the contrary is invalid according to California Civil Code Section 1953(a) (1), which states that a tenant’s privacy rights cannot be waived or modified by any lease or rental agreement provision.

Your management has the right to show the apartment to prospective tenants, but they must give reasonable notice of their intent to do so--reasonable notice is generally presumed to be 24 hours, and the showing should be during business hours. However, you should try to accommodate the manager to help her show your apartment.

You might think of meeting with the manager or her boss--the owner or property supervisor--and come up with a procedure and schedule that suits both of you.

The only time that management is not required to give notice of intent to enter is in the case of an emergency that threatens injury or property damage, such as fire or flooding.

This column is prepared by Project Sentinel, a rental housing mediation service in Sunnyvale, Calif. Questions may be sent to 1055 Sunnyvale-Saratoga Road, Suite 3, Sunnyvale, CA 94087, but cannot be answered individually.