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Real Estate Today

Tenant's Death Raises Questions for Landlord

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Robert S. Griswold | Steven R. Kellman | Ted Smith
08-April-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 executed a month-to-month rental agreement with a tenant for an apartment that began on the first of the month a couple of years ago.

The tenant died in the middle of the month, and the rent had been paid through the end of the same month. Does the date and time of death trigger a 30-day notice to vacate, or does the tenancy terminate as of that date? The next of kin removed the unit's contents on the first of the following month.

Out of respect to the deceased tenant and the immediate family, the unit was not made available until it was completely empty on the first of the month. Every effort had been made to rent the unit as soon as possible; however, two weeks into the new month the unit had not been rented.

A security and cleaning deposit had been received from the tenant at the time of the rental agreement. The unit was cleaned and certain items repaired. Am I allowed to deduct from the security deposit costs incurred toward the cleaning and the repairs and to deduct from the deposit lost rent for any days the unit was empty?

ANSWER: Smith: California law states that the death of a resident in possession on a month-to-month agreement terminates the tenancy. The estate remains responsible for 30 days' rent from the date of death and damages beyond ordinary wear and tear.

As you can see, the usual rules apply. The security deposit will be handled in the ordinary course under California's Civil Code and will be used to offset the rent for the additional two-week period and damages and cleaning. Make sure the person responsible has authority on behalf of the estate and that there are no conflicting claims.

Kellman: Actually Ted, the law states that a month-to-month tenancy is terminated by notice of the tenant's death.

Also, the tenancy is terminated as of the 30th day following the tenant's last payment of rent before the tenant's death, not the date of death. No further notice, like a 30-day notice terminating tenancy, is required. Thus, the tenancy was terminated at the end of the month (assuming rent was paid on the first) with no more rent owing since rent was paid for that entire month. No rent may then be deducted from the deposit.

I agree that you may make deductions if there are damages beyond ordinary wear and tear or for cleaning.

How late is late?

Our rental agreement states the rent is due on or before the first of each month. It also states that the rent is delinquent if not paid in full by the third of the month. The late fee is $50 if not received by the third.

How do Sundays and holidays affect the three-day grace period? Is the tenant permitted to only count working days and Saturdays as part of the three days? Is it legal to require the rent check to be received at landlord's address no later than three calendar days?

Griswold: The lease or rental agreement outlines the terms of the grace period and the late charge. There is no legal requirement that the landlord must offer a grace period. Further, while there is no specific law in California regarding rules for late charges in tenant/ landlord relationships, the law does prohibit an excessive late charge or a late charge that is actually a penalty.

As to the three-day rule in your lease, rental agreements that allow for such a three-day grace period are interpreted to mean three calendar days. However, if the last day to pay a rental obligation falls on a weekend or holiday, California law extends that last day to pay over to the next business day.

Thus, for example, if the third calendar day past the rent due date falls on a Sunday, the tenant has until the next day business day to pay without invoking the late charge provision. If, in our example, that following Monday were a holiday, the next business day (or "third" day) would then carry over to that Tuesday.


Noises off

We currently have a one-year lease in a small apartment building. I live on the second floor with my wife and a small dog. Three months into our lease a new tenant moved into the unit below. Within two weeks we started to receive constant phone calls from the property manager in regards to noise complaints.

We were informed the noise stemmed from excessive movement. No matter how we tried to accommodate our neighbor, the complaints kept coming. We finally told the property manager to stick it. What should we do if the property manager continues to hassle us?

Kellman: Some people are very sensitive to noise. In multi-unit living units, however, it is understood and accepted that there will be a certain amount of background sounds on a daily basis. These include routine activities as footsteps, washing dishes, taking showers and closing doors.

Now add the sounds people make like talking, singing and, on occasion, arguing. Let's add the entertainment time spent listening to the TV, radio or watching a video. So it is easy to see that each rental unit will generate many sounds that will sometimes pass through walls, floors and ceilings.

Those very sensitive to sounds should clearly check out a building's sound insulation before moving in.

If the noise you are making is within normal and acceptable limits, you are unlucky to have one of those very sensitive neighbors below who complain about any sound. You should document the fact that you are not making excessive noise in a politely worded letter sent to both the manager and the neighbor. (Telling the manager to "stick it" is clearly not advised since it makes you look like the unreasonable neighbor in this dispute.) You may even invite the manager to visit the lower unit and give a listen to see you are not being too noisy. If the manager sends you any written notices about the noise, you should promptly and properly respond to protect your rights.


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.

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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

2006, 2005, 2004, 2003, 2002, 2001, 2000, 1999, 1998, 1997, 1996 Robert S. Griswold.  All Rights Reserved.
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