All Forum Posts by: James Qiu

So my friend has a month-to-month lease with his tenant who hadn't paid the rent for a month. He served her the 3-day pay-or-quite notice, as well as a 30-day lease termination notice to terminate the month-to-month lease. When he went to the court to file the UD after a week has passed, he was told that he can't. Because of the 30-day notice, he must wait for 30 day before UD can be filed. I have always thought and also read from a number of websites that the two should be served at the same time if you really want to get ride of the tenant even if he/she pays this time. If assuming the Court was right (duh), when should the 30-day be served? BTW, this happened in CA.

@Jhansi B., please keep us posted on how things are going. Being in the same state, your experience would be very valuable to me :). I'm sorry you had to go through this.

If you have a lawyer whom you can trust, I'd highly recommend (like other people here) getting some legal advice. Here, I stress "trust", because most lawyers I talked to are in it for the money. So no matter if you win or lose, they get paid.

Eventually I do think you to evict her. So sooner or later you need to get a lawyer involved. It might be prudent to start the interview process early and be prepared.

Regardless, it's still best to be self educated, so you can make an informed decision with or without a lawyer. No one but you have your interest as the highest priority.

YMMV, but I heard these days judges don't like "bully landlords" even if the law is on your side. So like Ed said, if he has been a long time renter and always been on time, it doesn't hurt to give him the benefit of doubt by accepting the partial payment and serve him the 3-day for the remaining amount, and let him know it is a one-time favor. Because if you evict, and by the time you go to court, he comes up with the rest of the payment, the judge might ask you to accept it.

@Jhansi B.
I see mainly two issues here:
1. tenant didn't pay rent and complained about living condition.
2. landlord didn't repair leak that has already caused mold.

I don't know about other states, but in CA, there's something called "withholding remedy" http://www.dca.ca.gov/publications/landlordbook/repairs.shtml which allows the renter to withhold rent for certain repairs. I use a licensed process server for all my 3-day notices. He regularly has to be in court to provide "proof of service". He told me that the #1 reason landlords lose in court is MOLD issues. Not only that the tenant can sue you for any mold repeated health problems. eg. if she gets a doctor on her side to prove that the mold is causing her child to develop asthma, you're in for a LOT of money (in the worst case). Also in CA, you can't retaliate a renter's complaints by eviction. See http://www.dca.ca.gov/publications/landlordbook/retalitory-actions.shtml In your case, if you try to evict her now, the Court might see it as retaliation if she has a good lawyer to argue that way.

Now let's break down the cost for you if you go to Court.
1. Filing UD and win, your cost ~= $1000+ assuming she doesn't contest.
2. If she does (which is most likely in your case), $300/hr * 1 or 2 hours lawyer fee.
For her, if she is poor, the cost is zero including suing you for health damages. It is because in CA, she can get the Court to waive her filing fees and get a legal aide lawyer for free. If her damage case is strong, she might even get a real lawyer that gets paid from the payout amount. If I'm going to Court, I want to make sure I'll absolutely WIN. This way, at least I can get a money judgement in my favor.

Disclaimer: this is not a legal advice. If I was you, I'd
1. Send her a certified (traceable) letter stating that mold is VERY dangerous and ask her to temporarily move out while you fix the problem. In CA, the tenant is credited on a per Diem basis during repair.
2. Get a LICENSED and BONDED mold and restoration company to fix the problem asap.
3. After everything is fixed, serve her a 3-day notice with the credits (you might want to add some for inconvenience) deducted from the rent.
4. Serve a 30-day termination notice because she had one more pet. But if she complies with your new terms, you have to let her stay.

The key to winning a case is to show that you have made reasonable efforts to fix ALL the problems you're supposed to, and not letting the renter to have ANY excuse. Maybe I'm being overly cautious, but as a landlord/business owner I can't afford to lose a Court case.

If she reports mold, you need to get on the case right away. Any delay can potentially cost you lots of money and headache. Use a licensed and insured professional also. I'd also send her a letter stating that mold can cause serious health problems and ask her to move out immediately with FULL security deposit returned. If she does, great, you can take time to fix the problem. If not, at least you warn her the risk of staying. But that doesn't relieve you from fixing the mold problem quickly. Tenant can get a professional to fix an emergency problem (plumbing, heating or electrical) and deduct the cost from the rent. Other than that, normally, they can't delay or deduct the rent.

If the tenant is on a monthly lease, you can terminate the lease with a 30 day notice.

If you decide to take her to court, make sure you have 90% confidence you'll win, otherwise, it's not worth the risk. Remember CA court system is tenant friendly.

I had a similar situation before with a couple the girl had great credit > 650, the guy, about 400 and about to file BK. I consulted with my attorney and was told to stay away. Because:
1. if something happens between them, the better one will move out and leave you with the crappy one.
2. when it comes to eviction, the crappy one has nothing to lose and will fight you to the end or worse file BK again

If for some reason you have to rent to them, make sure you put both names on the lease. If you only put the good one there, she can move out and mail you her keys, then you're stuck with a dead beat who is not bounded by any legal document -- you're really gonna be screwed.

I have a really problematic tenant. Since they moved in 5 month ago, they have never paid rent on time and always complain about the condition of the place. I have already served them the 3-day notice twice. In the past, I did it after the 5-day late fee grace period. However, our lease (the standard Califonia Assoc. of Realtor's Lease agreement) clearly says the due day is the first and is delinquent on the next day. Can I serve them the notice on the 2nd, even though the Lease gives them a 5-day grace period before the late fee is charged? I have a feeling this time, they're out of options (to pay my rent) and are ready to fight to the end, so I want to start the process as early as possible.

Thanks in advance.

Donna Smolinski

Hello back! Isn't the weather just perfect here?

I put in back on the market the second day he moved out, and already showed a few times. The rental is actually in Oceanside, so I'm very selective -- been burned more than once.

Does the reason for breaking the lease really matter? He is a marine who got a order to deploy overseas. We didn't have a military clause in there either. So he is legally responsible for lost rent/cost. But I told him that I would refund his deposit minus all that.

Now the question is that I think the CAR Lease says I need to refund within 21 days. But what if the place is not rented in 21 days? Am I allowed to hold the deposit longer than 21 days in this circumstance?

I'm not a realtor and doesn't have LLC or S Corp to protect me either. And I manage all my rentals, so I need to be really careful not getting into trouble with the law. Thx.

I agree with most of the points here. But I've learnd that when it comes to litigation, what the judge thinks is "fair" is often way more important than what the lease says. Most renters I've seen don't read the whole lease agreement (6 pages of 6-pt font) line by line. The judge may agree with them that the lease is too complicated or too restrictiive. Unlike the renter, the landlord has more to loose if sued and lost, it's better to be on the safe side and just be "fair".

Thanks for all the feedbacks. I think the consensus is unanimous that it's better and safer to just return the deposit minus reasonable costs, even when the renter breaks the lease.