PAYING RENT?, SMALL CLAIMS, CHILDREN

“Right now, communication with your residents is imperative.”

Q: Most of my residents paid their rent in April, and again in May. I know it was difficult for many due to reduced hours, furloughs, some were laid off, but most were able to pay their rent; many even paid early. However, I have a few that didn’t, some I haven’t heard from, haven’t returned my calls, kind of gone dark on me. I know that there is an eviction freeze in place right now, not much I can do until it is lifted, but what should I be doing? I can’t just sit around not knowing if they will pay or not. I am very concerned about June and whether or not my luck will continue. What can and should I do?

A:At the time of this writing (second week of May), the courts are essentially shut down, except for limited exceptions. There are statewide eviction limitations in place, and many cities and counties throughout California have chimed in with their own unique requirements.

Most of these restrictions are intended to protect those residents whose ability to pay their rent has been impacted by the COVID-19 pandemic. Some actually require evidence of such adverse impact, and further require that the resident actually provide that evidence to the housing provider. Cities differ as to whether this evidence must be provided before the rent is due, within a certain number of days after it was due, or whether the resident can wait until trial. Some jurisdictions don’t require such evidence. As of this writing, the rent that is due and unpaid will be required to be paid to the Lessor, in full, but that repayment schedule is uncertain as of this writing, and the timeframes will vary depending on the city and/or county.

The California Legislature is crafting statewide guidance for this; however, such legislation is not finalized as of this writing. And if that’s not enough to make your head spin, all of these rules are in flux. They are constantly changing, being updated or amended, sometimes daily, and often the ending dates are extended! So what do we do?

Right now, communication with your residents is imperative. Thank the ones who are doing their best to stay current. Let them know how much you appreciate them. Follow up with those that are not paying in full or at all. Keep it professional; let your residents know that the pandemic affects all of us, that you are affected just as they are. For those that are impacted, try and negotiate a repayment plan for the deferred rent. Terms will vary depending on you and your resident, and the jurisdiction of your property, but repayment over several to 12 months is typical.

You will find that the vast majority of residents are suffering right now, as you are, and want to do the right thing. The majority will pay when due, some will make payment arrangements. Of course, there will always be those who will try and take advantage of the current situation. Those are the ones you want to identify as early as possible. If you are an active owner, you already know who these residents are. For these residents, document your communication carefully. Communication should be in writing, and consistent with how you normally communicate with these residents. Confirm the rent that is due and unpaid. Confirm that you have offered to defer the rent. Confirm that the resident did not provide you with any evidence that the nonpayment was COVID-19 related. Additionally, if the resident is in default under other provisions of your lease, confirm those issues as well. Now is the time to document your interaction, and their lack of response if appropriate. When the courts reopen, and yes, the courts will reopen, this documentation will be necessary when you finally get your day in court. The judges will certainly be sympathetic, but that sympathy will be reserved for those parties who acted in good faith, and that includes both residents and housing providers.

This is certainly a difficult time for all, but you will get through it. This also is a test of true character: you as the housing provider doing what you can to assist your residents, and the character of your residents doing what’s right and doing what they can to assist you. Above all, stay positive, trust your residents, and communicate professionally and with compassion. You’ll find that the vast majority are good honest folks just trying to do their best and what’s right. The others, we’ll deal with when the courts reopen.

Q: One of my former tenants took me to small claims court over her security deposit. She claims that I was unreasonable in spending all of it because she claims she had a cleaning crew come through the place before she moved out. Well, I don’t know if she used a cleaning crew or a wrecking crew, because the place was trashed. Anyway, the Judge in the small claims court apparently liked her, and I guess I lost my temper at the hearing. When all the dust settled, the judge ordered me to pay her! Go figure. The paper says that I have time to appeal this decision if I want to. I basically want to know what happens in the event of an appeal, and whether or not I could have a lawyer handle it.

A: A small claims appeal is a “trial de novo;” that is, the appellate hearing will be a “new trial.” You, as the Defendant, essentially get another chance to prove your case. By and large, the structure of the proceeding is essentially the same. However, on a small claims appeal, as opposed to the initial small claims proceeding, you may have an attorney represent you. In your situation, if you’re afraid that you might lose your temper again, call a lawyer who will talk about the case with you. Of course, there are times when it’s simply more cost effective to “go it alone,” when the amount you’re fighting over is less than the cost of retaining counsel. If this is the case for you, and you really feel that you were not treated fairly in the small claims court, then appeal the decision. Just remember to take a deep breath out in the hallway.

Q: I am a resident manager of a 16-unit complex. I received a telephone call from a person wanting to rent a unit from our small complex. I asked the prospective tenant if she had any children. She got offended and told me, in no uncertain terms, that I could not ask that question. I replied by thanking her for her criticism and hung up the telephone. Is the prospective tenant correct that I cannot ask if she has any children?

A: Yes. Rather than ask how many children will reside in the unit, a more relevant question would be to ask how many occupants would reside in the unit. Most acts of discrimination in rental housing occur during the resident screening process. For this reason, it is prudent to put your screening procedures in writing and to adhere to them strictly and impartially. All rental units must be available to families with children. Furthermore, rules designed to discourage families from applying to rent may lead to the filing of discrimination complaints.

Minimize the pre-screening over the telephone; you never know if the caller is truly a prospective applicant or just a tester from Fair Housing hoping that you will say something actionable.

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.