Question: I have a friend who owns a rental unit and the tenant refuses to pay the rent. This has gone on for several months. The tenant is a menace and offered to move if my friend gave him $7,000. My friend was desperate so he agreed, but the tenant changed his mind — this deadbeat would rather live rent-free. My friend has consulted lawyers but has been told tenants’ rights (especially in some rent-control areas) are so strong that there is nothing he can do. Any advice?
Landlords’ attorney McKinley replies:
Your friend has been given bad advice. A landlord should never agree to pay a tenant to vacate the property. This agreement could have been binding on your friend, which would have required him to pay the tenant to vacate; in addition, your friend would have waived any claim for rent. However, since the tenant changed his mind, and apparently nothing was put in writing, it appears that no agreement was reached. Your friend should immediately serve a legal notice for all rent currently owed. Make sure your friend meets the requirements for the notice and does not ask for sums that aren’t allowed. Also please remember, all legal notices to pay rent or quit should include the landlord’s name, address for delivery of rent, office hours for personal delivery of rent, and a phone number. An attorney familiar with landlord-tenant law should be able to provide a proper notice form, or prepare the notice for your friend. Your friend must attempt to personally deliver the notice to his tenant, but if the tenant is not home, he can serve the notice by taping it to the door and mailing the notice by first-class mail to the tenant. It is always best to personally serve the notice, so your friend should attempt to serve it when he knows the tenant is home. If the tenant does not pay within the notice period, the next step is to file an unlawful detainer action. The unlawful detainer, or eviction action, is the fastest way for a landlord to recover possession of real property. Your friend should definitely retain an attorney experienced in unlawful detainers to handle this matter for him.
Tenants’ attorney Kellman replies:
This is a great example of how myths are perpetuated and then acted upon to great damage. The idea that tenants have too many rights and cannot be evicted is simply untrue. The truth is that both landlords and tenants each have certain rights in their favor, which can easily be lost by improper action, lack of action or misinformation. Here, the lack of proper action could have cost your friend plenty. McKinley is right when he says that nonpayment of rent, even in rent-controlled areas, could bring about a relatively swift eviction (except of course if the tenant has a legal defense to the notice or some other valid reason for the nonpayment). The complexity of the notice requirements McKinley shares with us is a reminder that a landlord should seek legal advice before commencing legal action. Also, they should get advice before making any such significant agreements with a tenant. Many tenants also act under misunderstandings of the law and get in trouble. For example, this tenant believed in the myth that he cannot be easily evicted and has demanded a lot of money to move. It is only because the landlord was unaware of his own rights that the discussions reached a point of negotiating a price of $7,000. A knowledgeable landlord would have simply handed the case to his/her attorney and the eviction proceedings would have commenced. No move-out payment. No delay. In this case, the combination of a landlord and a tenant who both did not know of their rights and duties under the law sent their case spinning into strange lands. Fortunately it appears that no agreement was finalized so an eviction could be commenced. As a landlord or tenant the advice is the same: seek competent professional assistance to understand and protect your rights before taking legal action.
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 James McKinley, member of the Moffitt & Associates law firm, which represents landlords.
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