Legal Corner

By stePhen C. duringer, esq.

I rented an apartment to four roommates quite a while ago. One of the four is now moving out, but the other three want to stay. The one moving out is demanding that I return his portion of the security deposit, he says that he paid it so he should get it back. Do I have to?

No, the security deposit remains with you as long as any of the roommates remains in possession of the rental unit. Often, owners and residents will enter into an agreement replacing one resident with another, thereby removing the one original resident from the lease. The agreement will further provide that the ‘new’ roommate pay the ‘old’ roommate his portion of the security deposit. Absent a written agreement to the contrary, the owner should retain the entire security deposit, then when all the remaining roommates vacate, the refund check should be made payable to all four of the original roommates named in the rental agreement.

My building has just enough parking spaces for my residents to each have one space. If a resident has more than one car, they must park it on the street. It has been working out fine for years but now I have this one tenant who refuses to follow the rules. He is constantly parking his second car in someone else’s assigned spot. I’ve told him several times, but he just ignores me. What do I do?

Your written community rules and regulations should specify your parking rules, specifically stating that only one vehicle may be parked on the premises, and that all parking is assigned. Ensure that you have the proper signage at the entrances of the parking area. Most cities require the sign to contain certain restrictive parking language, plus the local police department telephone number, and the California Vehicle Code section that provides for towing of unauthorized vehicles. Contact your local police department for its specific requirements, as they vary from city to city. Next, if you know the offender, provide a written warning of the violation. Attempt to serve it at his residence, post it on his door if he’s not in, and also put the warning on the windshield of his car. If practical, take and save a photograph of the warning on the vehicle windshield, because the offender will always claim that you did not give prior notice before towing. If he fails to remove the offending vehicle, the car may be towed, according to the terms of your parking rules.

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I’m getting conflicting advice about whether or not I must rent to someone who does not have a valid social security number, nor an official picture ID. Seems like most of the attorneys and the Fair Housing guys say I ‘cannot discriminate’ and that I must rent to all, regardless of whether or not the prospect can prove who he is, or verify his tenancy history, or his ability to pay the rent. I have been following that advice for years, and now have a building full of undocumented people, who I could never find in a million years if I ever had to collect from them. The rent usually gets paid, but the building, and the neighborhood, look like hell. I want to take my building back, and only rent to persons who qualify, who have verifiable identities and credit, and who are good credit risks. What are my rights?

The dirty little secret is that our industry has passively allowed this erosion to

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occur over many years. Many landlords have looked the other way, in favor of the quick rental, the cash payments, the full building, the reduced confrontation. We’ve taken the easy way out. Landlords have been wary of lawsuits claiming discrimination and have believed the bullying taunts and threats from the tenant and immigrant rights activists, that we have just taken the easier and less confrontational course of allowing it to happen. We blame our government for not addressing the illegal immigration issue; one side of the aisle wanting cheap labor, the other wanting cheap votes. We blame employers for hiring, and our ‘welfare state’ for creating the magnet that keeps drawing. Landlords are part of the problem as well. By succumbing to the shortterm temptation of the quick rental to the unverified, the undocumented, we are contributing to the problem. Many landlords are realizing that rather than just complaining, they can be a part of the solution.

Landlords have absolutely no obligation whatsoever to rent to an individual who is unable to independently verify his identity, his past tenant history, and his ability to comply with the terms of the rental agreement, including his financial ability to pay the rent. Our system of society is built around a numeric social security or tax ID number. Our life history, good and bad, is reported more often than not into a database that is organized by and sorted by the social security number. Names are common, but social security numbers are unique. No two people should share the same number. Credit as well as criminal convictions are reported similarly. These very basic requirements should be applied uniformly to all applicants, regardless of race, national origin or ethnicity. It is just good business sense. With average rents over $1,700 a month, landlord investment of $200,000 or more per rental unit, and a litigation climate that is out of control, landlords must know who their residents are, must reduce their risk of financial loss and must know how to recover from a breaching resident.

I’m looking at a single-family residence to purchase. It’s a pocket listing, no signage, not on the MLS. The agent claims it’s a great deal because the seller needs cash quickly, wants a quick escrow, and is willing to let it go for under market. The only catch is, the tenant doesn’t know the house is for sale, and the owner doesn’t want the tenant to know. He says that when I close escrow, I can serve my own notice to have the tenant leave, but he doesn’t want the tenant getting nervous and moving out if the deal doesn’t go through. It seems like a really good deal. I know the house, I’ve peeked in the windows, and it’s in incredibly great shape. What am I missing, what can go wrong?

Lots. You have actual notice of a tenant in possession. That means that you are bound by whatever rental agreement, or contract, exists between the owner and the existing resident. The tenancy agreement may turn out to be a fixedterm lease for a long period of time at less than market rent. The resident may have a lease with an option to purchase the house for a fixed sum, possibly less than what you are paying for it. There may be litigation between the parties relating to the premises, possibly mold or some other contamination issue that you may not be aware of. If the deal really is as described, then prepare a purchase agreement providing a due diligence period allowing you a brief time period to check title, condition and other issues. Once escrow is open and you are satisfied with title and the condition of the premises, contact the resident, confirm the terms of his tenancy, get a copy of his rental agreement, and prepare an estoppel certificate for the resident to sign affirming the tenancy agreement, amount of deposit, and affirming that he has no equitable or legal interest in the property.

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This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a specific situation should be addressed to your attorney. Stephen C. Duringer is the founder of The Duringer Law Group, PLC, one of the largest and most experienced landlord tenant law firms in the country. The firm has successfully handled over 300,000 landlord tenant matters throughout California and has collected over $300,000,000 in debt since 1988. The firm may be reached at 714.279.1100 or 800.829.6994. Please visit www.DuringerLaw.com for more information.

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