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Rent Board Stories #113, July 2004
By James L. Jacobson

THE GREAT LANDLORD LOCK OUT

There is a maxim of jurisprudence at Civil Code 3526 that says, “no man is responsible for that which no man can control.” That rule is rarely applied by judges now, and most don’t even seem to know about it. For the past 30 years. California judges have given property owners ever increasing responsibility for everything that takes place on their properties while reducing the amount of control property owners can exercise over their property and their tenants.

If you don’t believe it, take a look at your rental agreements, which now run to four or more pages of fine print warning the tenant of lead paint, toxic mold asbestos and child molesters who might reside in the neighborhood. They are posting signs warning of toxic substances, even when they don’t know of any on their land. This is a reaction to lawsuits where owners sometimes lose their property because of wrongful actions of others.

If you are a responsible property owner you know how important it is to make inspections to protect your investment. And if the tenant won’t let you in the unit, you can evict him or her, right?

Well, maybe not. At least not according to a judge named Joseph Biderman, who is deciding eviction cases in Culver City nearly came to the opposite conclusion in a recent eviction case. In that case an ACTION member was attempting to evict two upstairs tenants for making noise at all hours of the night and interfering with the “enjoyment, comfort and safety” of the downstairs residents. Part of the problems was caused because the upstairs tenants took out all the carpet in their unit so they could have hardwood floors. For nearly more than a year, they would let the owners inspect the unit, but would not let them install carpet with padding on the floors.

An eviction action was filed on grounds of nuisance and the case came before Judge Biderman. Judge Biderman apparently found the nuisance allegations boring because he decided that the case should be decided on grounds that the tenants denied the owners “reasonable access” to the unit. To support his interpretation of the law, the Judge read the Rent Control Section 1806 (a)(6) aloud in court. It says:

“The tenant has refused the landlord reasonable access to the controlled rental unit for the purposes of making necessary repairs or improvements as required by the laws of the United Stated, the State of California or any subdivision thereof, or for the purpose of showing the rental housing to any prospective purchaser or mortgagee.

As the Judge understood the Law, landlords could not evict tenants unless the repairs were required by law. Therefore, since carpets were not “required by the laws of the United Stated, the State of California or any subdivision thereof,” the tenants could not be evicted.

Think of the implications of this interpretation of the law. Property owners have no right to go into their units to inspect for mold, termites, asbestos, lead paint or gas leaks? Do you have to hire an attorney to find a legal reason which “requires” you to make an inspection every time you need access to the rental unit? Do you need to get a temporary restraining order or mandatory injunction of the tenant refuses to let you in? You probably can enter your units to inspect the smoke detectors, because inspection of those are required by local law. But you better mind your own business and not look around too much when you are visiting or you may be answering a tenant harassment complaint.

Fortunately, in the eviction case I am describing to you, the property owners won because they also had a written rental agreement which required access to make inspections, and therefore they were not dependent upon the Rent Control Law eviction provisions alone. Additionally, the case was based on nuisance, not denial of reasonable access to the rental unit in the first place. But if the did not have a written rental agreement, this story would probably have a very sad ending.

Meanwhile, the tenant’s attorney thought that the Judge’s interpretation of the Rent Control Law Section described above was a great idea, and he is now appealing the decision seeking a ruling from the appellate court that landlords cannot evict tenants for denying tenants reasonable access unless that access is “required by the laws of the United Stated, the State of California or any subdivision thereof.”

And if you don’t believe it, you can go to the Santa Monica courthouse and look up Rent Board Story 04U00197.