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Notices to Tenants

by | Sep 17, 2021 | Landlord-Tenant

Q:  I represent investor clients and when I list their properties for sale, they often ask me to prepare and give notices to Tenants such as a 30 or 60-day “Notice of Termination of Tenancy,” or a “3 Day Notice to Pay Rent or Quit.”  Because of the federal and state eviction moratoria, my brokerage is no longer willing to take the risk, especially since we do not provide Property Management services.  CAR has announced that the California moratorium will be over October 1st.  Is it still dangerous for Agents to prepare and/or service eviction notices?

A:  Yes, it is still very dangerous because of various developments in the law.  Here is a summary of the issues facing Agents who want to be helpful by preparing and/or delivering any type of Notice to Tenants:

  1. California Tenant Protection Act: Under this law, which went into effect at the beginning of 2020, the amount that a Landlord can increase rent on a unit covered by this state law is capped.  Further, a Landlord cannot evict a Tenant from a residential rental which is covered by this law without “just cause.”  As a result, unless the rental unit is exempt from the Tenant Protection Act, or there is a legally-recognized “just cause” for the eviction, a Tenant may not be forced to leave.

     See Weekly Practice Tip:  “The New CAR Rent Cap and Just Cause Eviction Addendum” (1/10/20)

This state law allows local jurisdictions to have even more restrictive provisions than the state requirements especially in the amount of notice to be provided to Tenants and the amount of relocation assistance that the Landlord must provide. The age and/or condition of the Tenant (mental and/or physical) can also impact the type of notice that must be issued.

The notification process for evicting Tenants is extremely complex and ever-changing as more Cities and Counties are expanding their regulations and rewriting the rules.  The Landlord’s own Attorney, not a real estate Agent, must first determine whether state law or local law applies and what exemptions or special circumstances may apply to the property and/or the Tenant.   Even when a Tenant can be legally evicted under State law, other impediments may exist to that eviction.  Interpreting the applicable law is a function that can only be performed by an attorney who specializes in Landlord-Tenant law in the community where the property is located.

As such, all Landlords should be advised to consult with their own local Landlord-Tenant Attorney BEFORE anyone attempts to prepare, let alone deliver, any documentation to Tenants, but most especially any Notice to Terminate the Tenancy.

  1. Other New Laws: Other laws which went into effect at the beginning of 2020 also prohibit a Landlord from refusing to rent, or discriminating against, participants in Section 8 or other rent assistance voucher programs, or against a family daycare tenant with up to 14 children.  Also, for properties exempt from the Tenant Protection Act, rent increases greater than 10% must be preceded by a 90-day Notice.

     See Weekly Practice Tip: “New Landlord Tenant Laws for 2020”  1/10/20 

  1. Coronavirus Issues: Despite the end of the federal eviction moratoria, California’s moratorium continues until October 1, 2021.  Regardless of the existence of any local moratoria, coronavirus continues to impact the ability of a Landlord to remove a tenant.  If a Tenant claims that they have been affected by the coronavirus and as a result are unable to pay rent or to vacate the premises, it is up to the Landlord and their own local Landlord-Tenant Attorney to determine what actions can and cannot be taken. 

PRACTICE TIPS: 

  1.  REAL ESTATE AGENTS SHOULD NOT:  
    • RECOMMEND THAT A LANDLORD SERVE ANY TYPE OF NOTICE ON A TENANT OR WHEN IT SHOULD BE SERVED; AND/OR
    • PREPARE, OR ASSIST A LANDLORD IN PREPARING, ANY TYPE OF NOTICE TO A TENANT; AND/OR
    •  DELIVER ANY TYPE OF NOTICE TO A TENANT REGARDING RENT INCREASES, TERMINATION OF TENANCY OR ANY OTHER LANDLORD-TENANT ISSUE. 
  1. It is up to the Landlord, in consultation with their own local Landlord-Tenant attorney, to decide what Notices can and cannot be given to the Tenant; and at what point in time the Landlord and/or their attorney may take any desired or required action. 
  1. Simply because CAR has issued COVID updates regarding the status of the federal and state moratoria does not mean that Agents can or should determine what action any Landlord or Tenant should take.
  1. The fact that CAR has created statewide Landlord-Tenant forms for Property Managers to use does not mean: (a) that the forms can be used in all jurisdictions and/or (b) that Agents who do not specialize in this unique area of real estate should ever fill out these forms.
  1. Agents who are listing or selling Tenant-occupied property should have their clients (whether the Seller or the Buyer) review the transaction with their own local Landlord-Tenant Attorney before entering into any real estate purchase agreement that includes a provision that the Property must be vacant at any time on or after the Close of Escrow.
    • Purchase Contract: The best practice is to make the sale subject to the Tenant’s rights unless a local Landlord-Tenant Attorney has provided a written opinion that it is safe to evict the Tenant.
    • No Guarantees: Even if a local Landlord-Tenant Attorney determines that it is “safe to evict” the tenant, there is no guarantee that the Tenant will be out of the Property at any specific time regardless of what the Tenant may tell anyone; therefore, Agents should not make any representations or give any assurances to anyone that the Tenant will be out of the Property.

See Weekly Practice Tip “Sellers Agreeing to Deliver Property Vacant at Close of Escrow” 5/28/21 

  1. Because there are many highly complicated and complex legal issues impacting the Landlord-Tenant relationship, the ONLY advice any Agent should give to any Landlord, Seller or Buyer regarding rent increases or whether the Tenant can be evicted is the following:  “You should immediately consult with your own local Landlord-Tenant attorney.”

 

WEEKLY PRACTICE TIP: DO NOT FORWARD TO CLIENTS.  This Weekly Practice Tip is for the exclusive use of clients of Broker Risk Management and their agents.  It may not be reproduced or distributed without the express written consent of Broker Risk Management.  The advice and recommendations contained herein are not necessarily indicative of standards of care in the industry, but rather are intended to suggest good risk management practices.

© Copyright Broker Risk Management 2021                        09/17/21