Temporary Leave

Construction & Fumigation

Instructions to Leave

You get a notice from the landlord that major construction is about to start, or that the building has to be fumigated, or perhaps the construction has already started. The notice instructs you to live someplace else for a while, so that they can get this work done. Often, the instructions include that you must bag your food, move your furniture, and otherwise make the place ready for the work to be done. You get little or not compensation for any of this, and the attitude is that you’d better obey, OR ELSE. Usually, they give you short notice, and expect you to hop to it.

Your mind is spinning. Are they kidding? How do they expect you to pay for that as well as rent? Where can you stay? What about meals? How long will it be? What about your personal property, and any theft or damage? What do you do about the kids’ school, the computer, the phone, or the pets? It is outrageous, and you’re not crazy to see that it is. In all but rare circumstances, such a demand is illegal and contrary to your contract.

California’s housing is aging. Pipes are choked with accumulated hard water minerals and grease. Buildings are infested with termites and cockroaches. Earthquake damage needs to be addressed. Electrical circuits are grossly under-wired. Roofs are rotted through, and stucco has developed leaks to invite moisture. Mold has invaded the walls. Many buildings like converted garages are discovered by inspectors to be illegal. There is no doubt that the work needs to be done, but there is hardly any law to deal with this event.

The Right to Stay Put

Absent special laws to deal with this type of situation, you don’t have to move an inch. Nobody does. The entire group of tenants in your building can simply refuse to leave. Your rental agreement, whether monthly or a lease for some period, gives you the legal right to “quiet enjoyment.” [Civil Code 1927] Until your tenancy is legally terminated through court, either by 30-day notice, expiration of the lease, or legal eviction for violation of some term, you have the right to continue living there. [Civil Code 1946.1]  Even rental agreements that purport to require you to move for such work are probably not enforceable. Asking you to move out without compensation, move your furniture or otherwise accommodate the landlord’s plans is a breach of the implied covenant of good faith and fair dealing. [Kendall v. Ernest Pestana]  Ask the landlord, by what law or contract term does he have the authority to ask you to temporarily leave. He doesn’t know. He’s just so used to bullying you around, disrespecting your rights, and getting away with it, that he just felt empowered to ask the ridiculous.

The sole exception to this right to stay put is where a special law exists to deal with it. In only a few cities like Los Angeles are there any laws which even address this situation. Under Los Angeles’ rent control, the landlord CAN require the tenant to move temporarily, but only if the landlord finds and pays in advance for the hotel or other temporary accommodations, food, and incidental expenses, and the tenants have a defined return time. [LAMC 152] The process is tightly monitored by the City, and abuses are punished. The landlord has to give a 60-day advance notice, and file a Tenant Habitability Plan with the City.  IF the landlord complies in every respect with the LA rent control Major Rehabilitation laws, then a tenant who refuses to move out can be evicted for it; any step missed by the landlord voids the right to evict.

Another example of a special law is where the City [or County] has cited the landlord for uninhabitable conditions which the landlord has refused or failed to correct. [Health and Safety Code §17980.7(d) -see below] The government can require the landlord to pay for temporary relocation assistance to the tenants, including the higher rent at the temporary location, moving and packing all personal property, costs of moving machinery or equipment, and set a definite date for the moves, with the written right to re-occupy the unit after the work is completed.

Note that in both of these situations, the landlord’s right to temporarily relocate the tenants is balanced with a responsibility to pay for all of the costs the tenants will incur. Under the 14th Amendment to the US Constitution, you cannot be deprived of life, liberty or property without Due Process of Law; here, that translates as the landlord must pay you properly to have a right to ask you to leave for a while.

Construction While You Live There

Some landlords just bring in the work crew and start working – hammering, sawing, jack-hammering, tearing the building apart – while the tenants are still occupying their units. It is as though you should quietly tolerate this racket, the physical removal of portions of the building, disruption of basic utilities, the dust and dirt, and workmen trampling through the property.  You and everyone else who lives there can stop them from doing this.

The basic problem is nuisance -the noise, dust and dirt generated by the construction. Each tenant in the building can separately sue the landlord and the workers in small claims court for nuisance [Civil Code 3479 -see below]. You can additionally sue the landlord for breach of contract, based upon the uninhabitable conditions [Green v. Superior Court], the breach of the implied covenant of quiet enjoyment [Civil Code 1927], and the breach of the implied covenant of good faith and fair dealing [Kendall v. Ernest Pestana]. A lawsuit against the workers, their company, the contractor, and anyone else involved will most likely make them leave and not come back -who wants to be sued?  A lawsuit against the landlord for the small claims maximum of $7500 by each tenant will certainly make the costs of fairly dealing with you look a lot more attractive. Just 10 tenants each suing for $7500 is a $75,000 potential debt to the landlord. The small claims maximum is now $7500, and you get to trial in about a month. You can also file a claim in the Superior Court for an injunction [court order] to stop the work.

If the landlord is performing this work to drive the tenants out, such as in a rent controlled building where the landlord wants to jack up the rents to top dollar, Civil Code 1940.2 [see below] applies to prevent such tactics and impose penalties on the landlord of $2000 per act, in addition to actual losses.

The landlord may be doing this work without permits, or hiring unlicensed people, where the local Building Department inspectors can come out and put a Stop Work Order in place. Fines and even greater expenses await the landlord who gets caught doing that. Meanwhile, the work stops.

To the extent that the work disrupts habitability, such as the water shut-offs and power cut-offs, or itself is disruptive of your basic living environment, you can probably withhold rent, due to the substantial uninhabitable conditions. That way, the landlord is not getting rent to pay the mortgage or pay for the construction, while having to face your lawsuits for the breach of contract, nuisance, and Civil Code 1940.2 violations.

Sometimes, just talking to the workmen about your concerns may be enough to get them to postpone further work, since they may not want what they fear comes next, if they don’t. They may have had problems in the past, where angry tenants interfered with the workmen, such as unplugging their machinery, getting in the way, moving things, blocking the workers’ trucks, and otherwise disrupting their work. They can’t continue in that environment, and may simply walk off the job until the landlord squares things away. Even if they aren’t courteous, they may decide to be cautious and acquiesce to your request.

Weighing the Options

What can the landlord do, particularly when faced with a mutiny by all of his tenants? All he wants to do is perform the work, whether fumigation or construction, but nothing can start. His notice may be one-sided, but the problem is that he can’t move forward with his plans without either making you happy or hurting himself much more than he can you.

There a practical time limits in motion. Construction has to be done during the summer months, and not the rainy season. Contractors and subcontractors have been lined up and signed up, based upon their availability, on a tightly regulated schedule. A week’s delay in the process could throw off the whole project, and a couple of months’ delay for an eviction could ruin the plans entirely. Construction money is already tied up, and the clock is running, whether the money is used or not. For fumigation, which is generally a condition of refinancing or sale and is not done otherwise, a postponement can similarly ruin the entire transaction, costing money in several areas. There may be an order from the City Inspectors or City Attorney to restore the habitability of the building or complete the work  by a given deadline. The landlord can’t afford the delay caused by your not moving.

Fumigators will not tent or even spray an occupied building, due to their extreme liability. Contractors may be concerned about tenants being injured, possible work interruptions, or themselves being sued, as discussed above, if they begin work while tenants are living there. So long as one tenant remains in possession, the entire project could be scrapped. If some tenants leave right away, they may return if nothing has been done, and refuse to move out again, creating alternating tenants in possession, only sporadically paying rent. The tenants can actually take turns leaving, so that they are complying, but not as the landlord contemplated. The landlord is left with chaos, no money, and ruined plans.

Eviction is a possible solution for the landlord, but it involves even more delays, even greater expenses, and and empty building for a long time, during which the mortgage payments come entirely out of the landlord’s pocket month after month, as well as the loan payments for the construction. It has to start with a 30-day notice, since there is no contract basis to evict.  Some tenants may move out right away, while others fight the eviction for months, so that nothing can be done until everyone is out. After the construction or fumigation is completed, the landlord has an empty building, and is desperate to fill it up, maybe with bad tenants.  Again, the landlord has an expensive lesson in people skills and the art of landlording.

Against all of those expenses, the cost of simply doing the right thing is clearly better. Unless the tenants assert themselves, however, the landlord has no incentive to hand out money. Faced with a virtual mutiny of the tenants, the landlord clearly has no choice but to pay everyone what is necessary to proceed with his plan.

How Much Do You Ask For?

Often, the landlord offers a slight reduction in rent, or even free rent during that time, or a mere flat fee like $200 to “get lost.”  The landlord says that’s all you’re going to get, until you make clear that his only real choice is to pay what it takes.

Here are the costs for you to consider, when tallying up the amount of temporary relocation assistance that you will need:

To be out for a few days may not require all of this, but major rehabilitation such as re-piping, re-wiring, mold removal, structural corrections such as a roof, earthquake repairs, windows, flooring, and asbestos removal can take weeks. Some of these costs may apply both for the move out and the move back in. The above expenses could cost $2000 per week per unit, depending on the circumstances, particularly if the inconvenience of having to do it is added in. Do the math.

If you can come to an agreement, BE SURE IT IS IN WRITING, SIGNED BY THE LANDLORD. It should specify when you need to be out, when you can come back, and provide expressly for payment up front, identifying the particular costs included, and who has the responsibility to do or pay for the item. The hotel accommodations or apartment should be a 3-way agreement, where the hotel agrees to ask only your landlord for payment, and will not kick you out if he doesn’t pay. The accommodations should be comparable to your current living arrangements, not a slum motel. Some hotels have monthly rates for such relocation purposes.

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