Legal Corner Q & A

by Various Authors

Q. What is the consequence to a landlord for failing to give a 24-hour Notice of Intent to Enter for either repairs or to allow realtors in for a possible sale?

A. A landlord may enter a tenant's unit only for reasons set forth in California's Civil Code §1954, which includes the need to make necessary or agreed-upon repairs, and to show the unit to prospective or actual new tenants, purchasers, mortgagees, workers or contractors. (Note: showing the premises to “realtors” is not a specified reason, and thus entry of a realtor without a prospective purchaser may, arguably, not be permitted.) The notice, usually in writing, must state the date, approximate time and the purpose for entry; and it must be given to the tenant at least 24 hours in advance for entry during normal business hours. If sent by mail, the notice must be mailed at least six days prior to entry. Please note, however, that 24-hours' notice is presumed “reasonable” absent evidence to the contrary. (Thus, if the tenant objects for a valid reason, 24-hours' notice may not be sufficient. The landlord should always be reasonably flexible to accommodate a tenant's preference regarding the time of entry.)

Written notice is not required under limited circumstances, such as in the case of an emergency. A notice of intended entry to exhibit the premises to prospective or actual purchasers may be given orally, in person or by telephone, provided that, within 120 days prior, the landlord or landlord's agent gave the tenant written notice that the property was for sale and that the landlord or agent would contact the tenant orally for the purpose of showing the unit. At the time of entry, the landlord or agent must leave written evidence of the entry inside the unit.

The first, and obvious, consequence of failure to give 24-hours' notice is that the landlord may be denied entry. Absent an emergency, a tenant not given proper notice has no obligation to admit the landlord, and the landlord may very well be left standing with his contractor (who is, of course, charging for his time) at the threshold. An unauthorized entry by the landlord is a trespass; and, depending upon the seriousness of the abuse, may entitle the tenant to damages for harassment, invasion of privacy or infliction of emotional distress. Civil Code §1954 specifically provides that a landlord may not abuse the right of access or use it to harass the tenant. The basis for a suit and recoverable damages will hang on the individual facts. In addition, a landlord who commits a “significant and intentional violation” of Civil Code §1954 for the purpose of “influencing a tenant to vacate” the dwelling is liable to the tenant for a civil penalty of up to $2,000 for each violation under Civil Code §1940.2(a)(4),(b).

As with any other “right,” the tenant's actual remedy for wrongful entry may be more theoretical than real in the case of a minor violation. Remember, lawsuits are expensive to bring, and the tenant's lawyer will potentially want a significant monetary recovery to justify the effort. On the other hand, if the landlord's wrongful entries seriously interfere with the tenant's use of the property and quiet enjoyment, the tenant has the right to vacate and terminate the lease (excusing any further duty to pay rent) and to sue for damages for “constructive eviction.” Constructive eviction, like any other wrongful eviction under the San Francisco Rent Ordinance, is punishable by treble damages and is a very serious matter. If the tenant fails to vacate and instead sues for attempted wrongful eviction or harassment, this tenant action could result in substantial damages against the landlord. And minor violations, even if not directly leading to a suit, can seriously embarrass a landlord in any later court or San Francisco Rent Board proceeding, brought by either the landlord or the tenant.
– Saul M. Ferster

Q. Must landlords provide their tenants with a 1099 for interest on deposit?

A. Yes. Residential landlords are required to issue 1099s for any funds on deposits that earn in excess of $10 per calendar year. There are exceptions to this based on the type of recipient. For example, if the tenant is a corporation, the landlord does not have to issue a 1099. The 1099-issuance rules are covered in the Internal Revenue Regulations under 1.6049-4.
– Clifford E. Fried

Q. When I go into a tenant's apartment to inspect a report of damage, can I take pictures?

A. Yes, with certain limitations. You should notify the tenant in writing that you intend to enter the premises to inspect for necessary repairs. In this notice, you should also state that you will be taking photos in order to document the damage. Alternatively, you could ask the tenant's permission at the time of entry. In this way, the tenant will not be surprised if you take photos and would probably not raise any objection whatsoever. The photos might well be necessary for insurance purposes or to assess potential liability based upon the cause of the damage. However, you could predict objections from the tenant if you were to take photos of scenes unrelated to the damage issue, such as dirty dishes in the sink, an unmade bed or the marijuana growing under lights in the closet. The tenant has a reasonable expectation of privacy. Invasion of the tenant's privacy rights could give rise to a lawsuit against the property-owner for breach of the implied warranty of quiet enjoyment. In every lease, the law implies the landlord's obligation to provide the tenant with undisturbed use of the premises. Invasion of the tenant's right to quiet enjoyment is actionable in a court of law, and the tenant could recover general damages as well as punitive damages.

If you need to photo-document damage in order to prepare for possible litigation against the tenant for having caused the damage, the tenant might object even though you have a perfectly legitimate reason to take the photos. The litigation process provides methods for your attorney to document and preserve evidence, even very early in the litigation. Do not insist if the tenant objects. Instead, consult with your attorney as to the best course of action under the circumstances.
— Michael C. Hall

The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Saul M. Ferster can be reached at 415-863-2678. Clifford E. Fried is with Wiegel & Fried, LLP, 415-552-8230. Michael C. Hall can be reached at 415-512-9865. Copyright © 2005 by the San Francisco Apartment Magazine. All rights reserved.