When is Landlord's Notice to Vacate Retaliatory Action?

Robert S. Griswold | Steven R. Kellman | Ted Smith
4-February-2001 Sunday

This column on issues confronting renters and landlords is written by Counselor of Real Estate and Certified Property Manager Robert Griswold, host of Real Estate Today! with Robert Griswold (10 a.m. Saturdays on AM1130 - KSDO radio, or on the Internet at www.retodayradio.com), and by attorneys Steven R. Kellman, director of the Tenants' Legal Center, and Ted Smith, principal in a law firm representing landlords.

QUESTION: I have never been late with my rent, yet on the day of the due date my landlord is banging on my door at 9 a.m. to collect, or she calls and asks me to put it in my mailbox and she will pick it up.

She has also on several occasions asked for the rent two weeks early. I told her I was tired of her harassing me and that she needed to take care of her own responsibilities and debts. I also told her my rent was not late until midnight on the due date.

Then, I got a letter telling me not to park in a certain place, so I moved my car. Two days later, I got a 30-day notice to vacate. Two weeks later the phone company shut off my phone and put the service in the name of another tenant. Is this considered retaliatory? Can I ask the court to require her to pay my moving expenses?

ANSWER: Kellman: With few exceptions, California state law generally allows a landlord to terminate a month-to-month tenancy on a written 30 days notice. The landlord is not required to give a reason for the notice and may, unless otherwise prohibited by local ordinance, serve one for any reason as long as it is not illegal.

One illegal reason for a 30-day notice is when it is retaliatory. This occurs when a landlord responds to a protected and lawful action of a tenant by punishing him/her with an eviction notice. The lawful action may be a complaint about the condition of the property made to the landlord or a government agency.

Another protected lawful action may simply be standing up for your rights in a lawful and peaceful manner. You had the right to be free from harassment and you had the right to let the landlord know it.

If the 30-day notice was a response to your request to stop the harassment, it would probably be seen as illegal in an eviction court. If so, it will be canceled and you may seek compensation from the landlord plus a penalty of up to $1,000 for each retaliatory act.

As to the telephone, under California law, the landlord may not terminate a utility with the intent of forcing you to move. If it was the landlord who caused the phone service to be cut off, you may be entitled to receive compensation, a penalty of $250 and up to $100 per day thereafter that you remain there without phone service.

Smith: Steve, you miss the point. The reader has given no facts whatsoever to suggest -- even remotely -- that the 30-day notice is retaliatory. The fact is that California landlords may terminate month-to-month tenancies for any reason -- even bad or unfair reasons -- so long as it is not illegal to do so.

It's fair because it's a two-way street. Both tenant and landlord share the right to terminate with a 30-day notice. In this case, the 30-day notice is valid and the resident will be required to vacate. Moving expenses are not to be paid.

I agree that the landlord miscued by having the telephone service put into another's name. The tenant is entitled to telephone service up to the date of departure, so the owner should reinstate the services in the tenant's name.

She said, she said

I am having a major problem with my neighbor ever since I called the apartment manager about loud music after hours. She has called law enforcement several times and has accused my husband of threatening to kill her. The manager is aware of a few other problems we have had with this neighbor in the five months we have been here.

We signed a one-year lease and the management has agreed to let us move into a different apartment that is exactly the same as the one we are in, but they want to increase our rent to the current market rate. We can barely afford our rent now, but we are in fear of what might happen if we stay next to this neighbor. Can they do that even though we have a lease
agreement for seven more months? Help!

Griswold: Yes, if you accept their voluntary offer, I believe they can require you to pay the higher rent for the other rental unit. Remember that the management may not even have any legal duty to accommodate your request at all, particularly since the management is most likely hearing conflicting evidence from the other tenant.

If the apartment manager can clearly tell that you are not causing any problems, then they should offer the other identical rental unit at the same rate. However, with both sides making a lot of accusations, there is a limit to what the apartment manager can do to control everyone's behavior. That is not the role of an apartment manager and management should refer this type of dispute to law enforcement.

If law enforcement can provide the apartment manager with a clear interpretation of who is causing the problem, then the manager should serve the appropriate cure-or-quit legal notice or move forward with an eviction if the problem is not resolved quickly.

In the meantime, I believe you really have three choices: Stay where you are and hope that things settle down; accept the transfer and pay the higher rent; or break the lease and leave the property completely.

For the last option, you will need to make sure that the landlord voluntarily agrees to let you out of your lease or you will be responsible for the rent until the unit is rerented. Be sure that you get an agreement in writing.

The first option saves money, but is risky. The second option costs more but will hopefully solve the problem with your neighbor. The last option should completely eliminate any problem with your neighbor but the cost is unknown since you would be legally responsible for rent for an undetermined time frame. My advice is to weigh the pros and cons of each of these options and choose the one that is best for you.

In the doghouse

I rent a unit in a condominium that has a rule that pets over 25 pounds are not permitted. Two new owners have brought in huge dogs, one a pit bull and the other a German shepherd. The homeowner's association is overlooking the weight of the dogs because the dogs' owners are owners, not renters.

Several people (owners and renters) are threatening to sue the association for the stress of having to live with vicious (the German shepherd has jumped on several people and the pit bull tried to attack a small dog) dogs that are over the size limit.

Can the association be sued for discriminating against renters, making them obey laws yet relaxing them for owners? Can both the owners of these dogs and the association be sued if they attack a person or a legal pet? Can the homeowner's association and the dog owners be sued for the stress they're inflicting on the people in the building?

Also, there are rumors that the dog owners paid off the association, is there any way to find out?

Kellman: The homeowner's association should enforce the rules for all residents equally whether they are owners or renters. Treating people differently may be an illegal discrimination if a person is treated differently merely because he/she is a member of a particular protected group of individuals.

All residents are entitled to the protections provided by the rules of the condominium complex. A resident may bring an action for the enforcement of the rules. A resident may also bring an action for any damages caused by the association's failure to enforce a rule that should have been enforced.

IF YOU'RE A TENANT OR LANDLORD, the authors stand ready to answer your questions in this column, although letters cannot be answered individually. Write them at: Rental Roundtable, Homes Section, San Diego Union-Tribune, P.O. Box 120191, San Diego, CA, 92112-0191. Or you may e-mail them at rgriswold.sdut@retodayradio.com

Copyright Union-Tribune Publishing Co.

Back to 2001 Rental Roundtable Index

Robert Griswold and the Real Estate Today! radio show strongly support the intent and the letter of all federal and state fair housing laws. As a reminder to all owners and managers of real estate, note that all real estate advertised is subject to the Federal Fair Housing Act, which makes it illegal to advertise "any preference, limitation, discrimination because of race, color, national origin or ancestry, religion, sex, physical disability, or familial status, or intention to make any such preference, limitation or discrimination." Additional state and/or local fair housing laws may also apply. Be sure to inform all persons that all dwellings offered or advertised are on an equal opportunity basis.

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Revised and Updated - Wednesday, April 26, 2006

Robert S. Griswold, CRE, CPM, CCIM, PCAM, GRI, ARM
Griswold Corporate Center
Griswold Real Estate Management, Inc.
5703 Oberlin Drive, Suite 300
San Diego, CA 92121-1743
Phone: (858) 597-6100
Fax: (858) 597-6161
Email: rgriswold.ret@retodayradio.com