Temporary Leave
The housing throughout California is getting old, a lot of it built in the late 50s and early 60’s. All kinds of things are breaking down. Plumbing, electrical system, the roof, and heating systems need to be fixed and replaced. Increasingly, leaks from the roof or water pipes in the walls have caused mold to grow in the walls and ceiling. The floor could be rotting, or the stairs may be failing. Sewage pipes are breaking and creating a mess.
If it’s a major construction job that will require you to be out of possession while the workmen make the repairs, that’s the big problem. There is no law for all of California to handle this situation, and only Los Angeles has a reasonable process for temporary relocation. The landlord may try to use this situation to move you out so they can jack up the rent for the new tenant. You need to know what to do.
The same problem arises from fumigation of the building that the landlord plans, tenting the entire structure, and requiring you to be gone for a few days after the termites are killed, The tent is removed, and the place is ventilated to remove the poisonous gases. The landlord orders you to pack up your food, and other things and just live somewhere else for a few days, so he can get this done. The only time that landlords tent the building is when they are planning to sell it. The termite report is required to close escrow. Your days there are numbered. It changes your strategy entirely.
Maybe you have a rent controlled apartment and the landlord wants to evict you, to jack up the rent for the new tenant., He can’t do that legally under the eviction protections, so he uses this major construction ploy instead, to drive you out. Maybe you complained about these conditions, and got the place cited by the local building Code Enforcement, or the Health Department. The landlord wants revenge, for costing him money that cut into his profits, so he uses this opportunity to evict you under the guise of making repairs. He may intentionally extend the construction time, to get you so broke and disgusted that you decide to move somewhere else, and the landlord succeeded in evicting you without the expense and hassle of court.
To the extent that the landlord is going to turn your home into a construction zone or create a mess, or be in your home for an extended period of time, you didn’t sign up for that. The landlord thinks he’s going to just barge in and start tearing your home apart, because he is the owner. He may plan to tear the walls apart, remove the mold, place huge fans to dry up a flood, tear up the floors, replace all the pipes, etc, and just expect you to move out for a week or so, at your own expense. When you return, construction debris is everywhere, your property is damaged, things are missing, and your furniture is piled up in the center of the room. Unless you take control, this is what will happen.
You have control
As you may have seen in the Landlord Intrusion section and video, you have control of the situation and can use that to your advantage. You own the right to possession; that is what you buy when you pay rent. You can keep the landlord and his workmen out because they would be trespassing with they entered without your permission or other legal authority. If the police are called, they will side with you. You can tell the landlord to get out, and sue the landlord and his workers for trespassing, among other things.
Civil Code 1954 controls the situation. If the landlord or his workmen are going to come in, they have to comply with this law. Even if your rental agreement says that the landlord can come in for any time for any reason, that lease provision is illegal under Civil Code 1953 if it tries to take away your rights under Section 1954. The landlord has to give you reasonable advance notice, like 24 hours, in writing on paper, that identifies the date and time that the landlord plans to come in, which has to be during normal business hours. The notice has to identify a legal reason to come in, which in this case is to make repairs, which can include a preliminary inspection by the contractor to see what the problem is and what needs to be done. The key part of Section 1954 for purposes of this major construction situation is that the right to entry cannot be abused.
If the reason for your vacating is the termite tenting, the focus is the poison. The fumigation company can give you details of what needs to be done, since it is their liability if you get sick from their fumigation. The food in your refrigerator is probably not be safe from the fumigation, so you will have spoiled food to replace. You have dishes, silverware, glasses, pots and pans, and other kitchen items which could be affected by the poisonous gas, and may need to be cleaned afterwards to be safe. Packaged goods in your shelves and pantry will also need to be replaced, or a suitable storage place for them found or provided.
Termite tenting so the landlord sell the property and make a huge profit. The landlord tells you to pack it up, but you don’t have to do that. You are not a door mat. You are a paying customer, and they cannot just mistreat you. Where is it in the lease? It’s not. You don’t have to spend your time for free doing any of what the landlord is expecting. The landlord should pay you to do all this, as well as for you time and the expense of replacing all the food and doing the sanitizing of your kitchenware, on top of the expenses of the temporary relocation itself.
Keep in mind that whenever you communicate with the landlord, especially in writing, that a judge is looking over your shoulder. If you threaten or use foul language, and it comes to court, the landlord will try to make you look bad by what you said. Always be reasonable, explaining your understanding of the landlord’s position, but insisting on things being done fairly and according to the law. That way, it will be you, not the landlord, showing your letters to the judge and getting a favorable response: “Yes, Mr. Landlord, why didn’t you do as your tenant reasonably asked?”
Making the Agreement
To the extent that you have to be away for a week, for example, where will you sleep? What will you eat and where? What about your pets, internet connection, and parking costs? What about the inconvenience of not having your clothes, business records, kids’ toys and other things you are accustomed to having nearby? What about the inconvenience of living away from home, having different commute routes to work, school and markets, and being away from friends? You didn’t ask for any of this, and the landlord legally owes you “quiet enjoyment” of your home, which having you temporarily stay elsewhere definitely breaches.
Landlords want to tell you never mind about any of those things, and to focus on what the landlord needs to do. You can say you’re not going anywhere unless there is a signed agreement which ensures that you will not be abused, and will be compensated for your surrender of possession and accommodations of the landlord’s needs. To the extent that you have neighbors similarly situated, you should give them a copy of the agreement as well, so that everyone is secure.
A sample agreement is provided below, that you can download with blanks ready to fill in. Since it’s all prepared, you can at least start with that, in your negotiations with your landlord. They won’t like it, that you are calling the shots, but you say that you are not letting them in to do anything without this, or a comparable agreement.
You can check out the local hotels, like Best Western, Marriott, and Holiday Inn, or a short term rental, to get the weekly rates and confirm that your landlord is going to be paying for and guaranteeing payment for the room, as well as parking if charged, internet, and related expenses. You need to have an idea of the costs of dinging out, in case your hotel room doesn’t allow cooking, as most don’t. You get the figures together, put them in your proposed agreement, make a copy, and give it to the landlord to mull over. Most important of the details are the starting and ending dates. If the landlord says it will take about a week, but it takes a month, there needs to be a penalty and protections that the landlord will continue paying your expenses. That way, the landlord avoids the penalty by covering a longer period than the contractor plans, just in case there is a delay. If he’s honest with you, he has nothing to fear.
Putting the Pressure On
Just your delaying whatever it is that the landlord wants to do is effective. Contractors are only available under their schedule, and may not be available again for months. Sale of the property could be seriously delayed, or even prevented by a foreclosure. If the landlord tries to evict you for not cooperating, that could add several months or even years of delay to the landlord’s plan. You have to impress upon him that making you happy is the only way he will able to proceed. It’s a bitter pill.
If the landlord refuses to sign, you can just refuse to move or let them in. You can change the locks to protect yourself against trespassing. If the cops are called, they will [or should] side with you; call their Watch Commander if they don’t. If it comes to an eviction threat, you are on solid ground, because you are only refusing to be “abused” under Section 1954.
Typically, they will serve you a 3-day notice to perform covenant or quit, requiring you to let them in to start working or be evicted. You would want to answer that notice with a letter saying that you offered to move out temporarily under the agreement, but they refused to do so, expecting you to shoulder the costs of hotels, meals, etc for an unlimited period of time, while they trespass, trash your home and violate your right to quiet enjoyment. That way, you have a paper trail to show the judge, if it comes to that.
The landlord may give you a 30- or 60-day notice of eviction, just to get you out. That is likely an illegal retaliatory eviction, for your complaints about uninhabitable conditions and getting the landlord cited by the government inspectors, costing the landlord a lot of money. If you are covered by the Tenant Protection Act, that 60-day notice would have to be accompanied by at least a month’s rent of relocation assistance.
If you have had the building inspectors cite the place for violations, you should ask them for copies of their citations and communications with the landlord. You should inform those inspectors that, due to the extent of the work required, the landlord is expecting you to just move out for an indefinite time, paying your own hotel and other costs, and that you refused to, and cannot afford to, do that. You explain that you offered an agreement for the landlord to sign, which would protect you from those abuses, and allow the landlord to comply with the Inspector’s orders, but the landlord refused to agree. The landlord is just stubborn, and will probably tell the inspector that you are refusing to let him do the work, so that he could save the money. The inspector needs to know that, so they don’t just let the landlord evict you first. The inspector should put the pressure on the landlord to make the agreement with you or suffer daily fines for non-compliance.
You can also start suing the landlord for breach of contract and retaliation, and whatever else you can. Small claims court now allows you to sue for up to $12,500. If there are two of you, you can each sue the landlord for $12,500, like one suing for breach of contract, and the other suing for trespass, nuisance, and retaliation. You are not limited to small claims court, or that dollar amount, if you want to do more than that. See the Suing Your Landlord section for more about that.
You also want to identify in writing to your landlord everything that is wrong with your unit. It can be included in your first letter about the temporary relocation assistance, or in response to the 3-day or 30-/60-day notice. The major event that started all this is probably not the only thing wrong with the place. Download the Habitability Worksheet below, to help you identify the problems. It will help remind you of problems you may have noticed but disregarded, and suggest things you may not have thought to be something you can complain about. The plan is to provide a complete list so that (1) the landlord can have his repairmen fix all these other things as long as they are there, (2) the judge sees how extensive the problems in your place are beyond the major event, and (3) you have all the more things to sue the landlord about. You may not have wanted to “rock the boat” before, but it is already rocking, so you have nothing to lose and a lot to gain. The list itself should be organized from worst to least, so that the first impression is “no heat” rather than “kitchen drawer sticks.”
If the landlord has given you an eviction notice, and that notice has expired, the rental agreement you had is no longer in effect. That is, you used to pay rent, but not any more. If you do pay rent and the landlord accepts it, that probably voids the eviction notice because it is inconsistent with requiring you to leave. Maybe your rental agreement said that you could not change the locks, but since the landlord tore up your agreement, you can change the locks yourself to keep the landlord from coming in until he agrees to your temporary relocation terms. You might have to defend yourself against the eviction at a much lower cost than the rent. After winning the eviction case, the landlord would probably have to reimburse you for your legal expenses, in addition to having to re-negotiate your rental agreement, compensating you for the retaliation and malicious prosecution, etc, and get the temporary relocation process back in action.
Handling the Event
The landlord would prefer not to have to pay so much to you, in addition to the costs of the work itself, but that may not be a choice. The landlord has insurance, and it may cover payments to his tenants for various claims. You can propose to the landlord that he have his insurance company pay you, If they will only pay when you sue, you file the small claims cases. He hands them to his insurance company to pay, and agrees that you are entitled to this money for what he is doing to you while fixing the underlying problem. You can include his declaration that you are entitled to the money as a part of your agreement to the temporary relocation contract.
If the landlord will negotiate with you, or just accepts the terms of your proposed agreement, you still need to monitor his compliance. You should take pictures of your entire place showing how you left it, so that it can be returned to that condition before you come back. You want to take an inventory of the important things you have, so that if anything is missing or damaged, you have the proof. You want to confirm with the hotel that your landlord has committed to paying for your stay and related expenses through the agreed term and beyond if required. You want to arrange to get the money for meals and incidental expenses in advance, at least on a weekly basis. You want to be compensated for the inconvenience of it all, not just for the out of pocket expenses, which the landlord can do by a separate payment, or deduction in rents.
In lieu of that extra payment, you could modify your rental agreement to extend your lease, committed to a lower or the same rent, with no eviction except for nonpayment of rent, for 5 or 10 years which you could terminate if you wanted by only 30 days’ notice. That is just an example, but really anything is possible, so long as you agree and put it clearing in writing.
You also want to go by the place when the workmen are there to see how things are going, ask if there are any new circumstances that could change the completion date, and see how they are dealing with your personal property. When the project is coming to an end, you want to be sure that they are cleaning up the construction debris, know that they have to return the furniture and other things to their prior position, and so forth. They may say that that’s not their job, so you have to report to the landlord what they said and find out who is going to restore your home to its former condition.
Once everything is done, you want to follow it up with another agreement that both sides did comply with the temporary agreement, and that the tenancy is now back to normal or under the new terms to which you have agreed.
If there are other tenants in the building following your example, you want to share information, so that everyone is getting treated fairly. Some may be afraid to stick up for themselves against the landlord, but then they will not benefit as you have. If they won’t exercise their rights, they don’t have any.
Get going and take charge. You will be glad you did.
Written and presented by Ken Carlson, J.D. (CA State Bar #93602)
Protecting California tenants’ rights since 1980
