Question: We own a rental home and rent out several rooms. One of the tenants just moved in last month and signed a six-month lease. These are standard, boilerplate lease forms that we got from Professional Publishing in Novato, Calif. At the time this tenant signed the lease we asked him for first month, last month and a security deposit. He told us he couldn’t pay the entire security deposit or any of last month’s rent upon move-in but he was getting paid commission soon and would pay the rest of the security deposit and the last month’s rent in two weeks. He did not pay as promised but we did eventually get the last month’s rent from him more than two months after move-in. At that time he promised to pay the balance of the security deposit. Our experience with this tenant is that he has lied to us on a number of occasions about when he will pay money (the check is in the mail, etc.) and also about his employment, and has now become surly when we ask him for the deposit. The rental agreement he signed with us clearly stated that he would pay first, last and security. Since we now have a last month’s rent from him, at what point can we consider him to be in breach of the lease and give him a 30-day notice?
Landlord’s attorney Smith replies:
Your tenant is in violation of the lease agreement under which he holds possession of the premises. The lease violations you refer to subject the tenant to possible eviction. However, you may not use a 30-day notice. The 30-day is used to terminate month-to-month tenancies only, not leases. In this case you have a 6-month lease. You will need to serve a 3-day notice to perform or quit, which requests payment of the balance of the deposit or possession of the premises within three days after service. If he fails to comply with the 3-day notice, you will have the right to evict despite the 6-month lease. Your retention of the last month’s rent should not defeat your right to evict based on the lease violation. In residential cases, I encourage my landlord clients to get away from collecting “last month’s rent,” and, instead, call the entire amount held “security deposit.” This gives you your maximum use of the money for rent, cleaning and damages. By calling the entire sum “security deposit,” you are not required to give credit against rent before the tenant vacates.
Question: I don’t know if this is a question you can answer, but I’m going to pose it just in case you have some advice. Is it safe for a single woman to be living in an apartment near downtown in a major metropolitan city? If I take the place, I will have a garage space lit by dusk-to-dawn lights. Another benefit is that it is on the second floor. Can you offer any advice?
Property Manager Griswold replies:
You actually ask an excellent question, but it is one only you can answer. Your safety is your responsibility and it sounds like you have already considered certain factors. However, I can offer some additional points to consider but ultimately it is your call. I would suggest that you speak with other tenants currently living at the property. You should also spend some time at various hours at the subject property and in and about the neighborhood and local businesses to see what the property is like. Just visiting the property during the middle of the day can be deceptive and not offer a true picture of the potential dangers that may be more prevalent after dark or on weekends. It is also an excellent idea to contact your local law enforcement department. However, law enforcement can only give you statistics and they cannot give specific recommendations but the information may help you determine if you feel comfortable. When you are at the law enforcement office, for a nominal fee you can receive information from the Megan’s Law database which is available by contacting local law enforcement in most states and major cities. This database contains information about the general location of residence for registered sex offenders in that area. Naturally, you should always do your best to be safe and minimize any risks by being careful, alert and using sound judgment. Remember, only you can decide if you feel that a certain rental property is “safe”, so don’t move in unless you are completely satisfied with the results of your investigation into the property and the surrounding area.
This column on issues confronting tenants and landlords is written by property manager Robert Griswold, author of “Property Management for Dummies” and co-author of “Real Estate Investing for Dummies,” and San Diego attorneys Steven R. Kellman, director of the Tenant’s Legal Center, and Ted Smith, principal in a firm representing landlords.
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