Pay or Quit, Inspection, Marijuana

“You as the housing provider do not have a right of possession to the rental unit after you have entered into a lease agreement…”

Q: I understand that when I serve my notices to pay or quit, I can post it on the door if the tenant isn’t home or doesn’t answer the door. I then have to mail it by regular mail. Is that correct? Am I missing something?

A: Yes, that is correct; however, there is a statutory requirement that you attempt to serve the notice at your resident’s place of employment, if known, before you post and mail the notice. Most folks don’t know that requirement and simply post the notice. A good tenant attorney or a seasoned judge will know the requirement and may ask the witness in court if they tried to serve the notice at the resident’s workplace prior to posting it. If the answer is no, then the court might rule in the tenant’s favor due to the failure to comply with the statutory requirement. If the truthful answer is that you are unaware of the current place of employment, then service by posting and mailing would be fine.

Q: I received a letter from my local city code enforcement officer. It was a bit testy. In short, the code enforcement officer demanded that I allow him entry to one of my rental units in order to perform an annual city inspection. He even threatened me if I don’t comply. I’m not sure what to do. I am not aware of any issues and I have not been cited for anything. Do I have to allow him in?

A: As a general rule we, as housing providers, want to cooperate with our city officials, and generally should assist in their good faith efforts to ensure that the housing stock is in good repair. The vast majority of city code enforcement officers respect housing providers and residents’ rights and enforce a “broken window” approach to inspections.

That is, if there is visible problem with housing, i.e., a broken window, then the inspector will concentrate on that particular building rather than engage in a blanket inspection of every unit in the city, with or without any visible sign of dilapidation.

You as the housing provider do not have a right of possession to the rental unit after you have entered into a lease agreement and provided the keys to your resident, and therefore you do not have the power to enter the premises except as narrowly provided for in CC Section 1954. That code section does not contain a provision allowing access to simply inspect. That right of possession belongs to the resident in possession. If you as the housing provider are notified of a “broken window” or some other dilapidation, then as a responsible property owner you would resolve the issue, repair as needed, and if the damage is caused by the resident, pass the cost on to the tenant as appropriate.

If, however, the inspector is simply demanding that you provide access for no other reason than his desire to inspect, then you can remind that inspector that state law does not provide you that ability, that absent a court order, the resident is in possession, not you, and that the resident is the person that the inspector should be communicating with and requesting access, not you.

Q: My apartment building has always been a nice and quiet community, no bother, no worries. Everyone keeps to themselves and I never have complaints about behavior. Well, that all changed when my manager let down her guard and didn’t fully screen my newest residents! Ever since these two characters moved in, flashing me their “doctor’s note” saying they could smoke pot, they’ve been puffing away ever since.

Apparently they claim to be “disabled” and that because they are “disabled” they get to do whatever they want. Huge clouds of smoke literally billow out of their apartment! I’m concerned about lots of things but mostly the little girl who lives next door because I believe that she’s asthmatic. How much more of this must I and the neighbors take?

A: The audacity of some medical “professionals” to abuse and game the system by willfully proscribing the use of “medical marijuana” to non-disabled fraudsters is an affront to all truly disabled persons. As of this writing the use of marijuana, medical or otherwise, is still illegal under federal law, however, the authorities have elected to stay any enforcement and prosecution for the use and/ or possession of “medical marijuana.” California enacted the Compassionate Use Act which allows for the possession of a limited amount of marijuana for personal use provided certain requirements are met. The right to “smoke” marijuana in your apartment community is not automatic and will depend upon the individual facts of each case.

The use of medical and non-medical marijuana is illegal under federal law and cannot be used or smoked anywhere, including your community, and can be grounds for termination of their tenancy. The use of medical marijuana requires that the user be disabled, and the disability must be “verifiable.” Additionally, the disabled individual must request a “reasonable accommodation” from you, the housing provider, prior to just lighting up.

Once the disabled person makes the request for a reasonable accommodation, you are obligated to consider the request, and attempt in good faith to accommodate the request in a reasonable manner. The accommodation does not necessarily require you to “grant” the request out right, but you must make a good faith effort to provide an accommodation that addresses the disability, but does so in such a manner that it does not unreasonably “burden” you, the housing provider.

The courts will apply a “benefit to the requestor” versus a “burden to the housing provider” standard in determining whether or not you met your obligation to reasonably accommodate the disability. In your specific situation, the initial hurdle for your new residents to surpass is to establish that one or both truly has a “verifiable” disability. A “doctor’s” note provided it has not been forged, although highly suspect, will generally satisfy the extremely low threshold here in California. The reasonable accommodation, their request to smoke willy nilly within the apartment, must be balanced with the “burden” to you, the housing provider, and those other residents that might be affected, i.e., the asthmatic child living next door.

It is conceivable, and probably likely, that an asthmatic child when exposed to the smoke billowing from next door might have a devastating and fatal reaction. Certainly the neighbor child, with a truly verifiable disability of asthma, is entitled to be free of the exhaled smoke as a “reasonable accommodation” for her verifiable disability. When balancing the benefit to Cheech and Chong of being able to light up in their apartment, with the burden to you as well as the extreme life threatening burden to the asthmatic child, courts would most likely find that a reasonable accommodation would be to prohibit the smoking of the marijuana within the apartment unit, or in any place that might affect the asthmatic child, or others with such a sensitivity to smoke, but provide an area within the community, possibly a portion of the outdoor common area that may be used for the smoking of their medical marijuana.

Alternatively, there are other methods of delivering the active ingredient in marijuana, i.e., ingestion, pills or tablets, food based, etc. Remember, reasonable accommodation issues are extremely fact sensitive and the analysis is dependent on a proper review of the relevant facts. Always contact an experienced attorney when faced with a request for a reasonable accommodation, as the issues are typically complex and a reasoned response must be made in a timely manner.

 

 

This article is presented in a general nature to address typical landlord tenant legal issues. Specific inquiries regarding a particular 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 285,000 landlord tenant matters throughout California and has collected over $200,000,000 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.