Start Negotiating If Way Behind on Rent

Question: I am 45 days behind on my rent payments. My landlord has spoken with me, but I have not been served any legal notices. If I get a court eviction filed against me, what should I do? Should I just move or defend myself even if it means going to court?

Property manager Robert Griswold replies:

You still have time to make alternative arrangements for the rent, such as securing a cash advance from a credit card, your employer, family or friends. Talk to the owner first and try to agree to a reasonable, written payment plan.

The landlord’s first step toward eviction is to present you with a three-day notice to pay rent or quit. That is followed by an unlawful detainer, or eviction, action for nonpayment of rent.

You still have time to act, but not much.

Ted Smith, principal in a law firm representing landlords, replies:

When it comes time for the landlord to evict a nonpaying tenant, an unlawful detainer lawsuit is filed, which is California’s way to evict a tenant who refuses to vacate after proper legal notice.

Tenants have the right to fight the case and have their day in court. But when they fight, they don’t win. Studies have shown that 95% of tenants lose. Why do they bother? Simple. To delay the process as long as possible.

Steven R. Kellman, director of the Tenants’ Legal Center, replies:

It is true that most tenants lose eviction cases. But the reason is that they do not have an organized legal machine to assist them, as do landlords.

In fact, many tenants who are served eviction notices are innocent and should not be evicted at all.

If they do not properly defend themselves, they will fall into the group that loses its cases. And the statistics will say they were guilty, when in fact they could have been innocent.

‘Nonrefundable’ Deposits Don’t Exist

Q: We recently vacated a home that we had rented for a year. When we moved in, we paid a security deposit of $1,150. Since we had a pet, the landlord also insisted on a nonrefundable pet deposit of $200.

Recently, it came to my attention that California Civil Code 1950.5 states that no deposit can be designated nonrefundable. Of course, if our pet did some damage, then the landlord could legally deduct the appropriate amount from our pet deposit.

If faced with this situation in the future, how should we handle a landlord’s demand for a nonrefundable pet deposit?

Kellman replies:

It is correct to assume that a “nonrefundable” deposit is actually refundable. If the landlord insists on receiving this type of deposit and the total of all of the deposits does not exceed the legal limits you may simply pay it. Even if the lease says “nonrefundable,” it is actually refundable.

When the tenancy is terminated, simply show the landlord the law by handing over a copy of the code (Civil Code section 1950.5). If that does not convince the landlord to treat it as refundable, I’m sure a judge would be happy to make that point clear should the matter proceed to court.

Smith replies:

Remember that, with certain exceptions, California landlords are under no legal obligation to accept pets. The $200 deposit may be used for all pet-related cleanup. And assuming that the carpet has to be cleaned, these expenses could well exceed the amount of the deposit. Despite this, I would agree that the pet deposit must be refundable, even though labeled nonrefundable.

Gardener-Tenant Asks for Rent Reduction

Q: I have moved into a new home and will be renting my former home. The rental home has been fully landscaped at great expense. One rental applicant would like a $100 rent credit per month to take care of the yard. Would this be legal?

Griswold replies:

Yes. You can agree to any arrangement regarding the care and maintenance of the yard in exchange for a reduction in rent. However, be sure that your tenant has the proper skills, tools and time to satisfactorily maintain the yard.

The tenant also must be motivated to maintain the yard properly, and you should put your understanding in writing.

Write the rental agreement at the full rental rate and then have a separate written addendum that gives the tenant $100 off the full rate in the following month for maintaining the yard in the prior month.

This “payment in arrears” will give you more control and serve as motivation for the tenant. You also should provide in the written addendum for the option of canceling the rent reduction with or without cause while not voiding the tenant’s other responsibilities under the rental agreement.

This type of arrangement can work very well, but care must be taken to ensure that all parties understand their obligations.

Law Requires Refund to Go to All Tenants

Q: I rented an apartment with a roommate. We both signed the rental agreement, yet I put up the full security deposit. Last month we vacated the apartment and my roommate moved to the East Coast. I just received my security deposit refund by check payable to me and my roommate even though I asked the landlord to make the security deposit refund check payable just to me. They claim that they cannot legally do this. Is this right?

Griswold replies:

Yes. When two or more individuals sign a rental agreement and then vacate the premises, the owner should make the security deposit refund check out to all individuals on the rental agreement as they all have an equal legal claim to the security deposit unless otherwise agreed in writing.

Thus, your owner is just protecting himself from a potential claim by your former roommate.

You need to contact your former roommate and either have him endorse the check over to you or send a letter to the owner indicating that he relinquishes any legal rights to the deposit and that the check should be reissued in your name.

Of course, you could have avoided this situation before you vacated the rental unit by having the owner prepare a written security deposit transfer form whereby your roommate legally transfers any interest in the deposit to you.

This works even if the roommate paid a portion of the original security deposit by simply settling the finances between yourselves in a mutually agreeable amount.

An owner would be ill-advised to reimburse any or all of a security deposit when a roommate vacates the rental unit. He should always keep the full deposit on hand until the last person on the rental agreement actually vacates the unit.

Tenant Backs Out; It’s a Contract Issue

Q: I recently decided to separate from my wife. I filled out a rental application and deposited money to hold an apartment with the resident manager. Luckily, we reconciled soon after and I won’t need the apartment. Can I get my money back?

Griswold replies:

This is a common problem that illustrates the need to have a written agreement from the very beginning of even a potential landlord-tenant relationship.

Many professional management companies and owners use a “holding deposit” form that clearly outlines the rights and responsibilities of both parties prior to the tenant’s moving in.

Without such an agreement, you need to reach an understanding with the landlord. Of course, the landlord will be concerned with the loss of rent and any additional costs of re-renting the unit.

Kellman replies:

It is very important to come to an agreement on the purpose and rights regarding any money paid before signing a rental agreement. There should be a specific agreement about whether the money will be refunded if the tenant decides not to rent for any reason.

Simply because we use the word “deposit” in referring to money given toward a rental does not mean that it is considered a refundable “security deposit” under California law.

By giving money toward a rental, you may have entered into a contract of some kind that would cause the loss of the money if the contract is broken.

If you want the money refundable before moving in, get that in writing.

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If you have a question, write to Rental Roundtable, Real Estate Section, Los Angeles Times, Times Mirror Square, Los Angeles, CA 90053. Or you may e-mail them to rgriswold.latimes@retodayradio.com.