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2007-07-05 07:58:00

Clearing up Confusion: Right of Entry Rules for Residential Properties

One of the most frequent questions we receive in our law offices is, "What are my rights in regards to entering my resident's unit?" Under California law, when an owner rents real property to the resident, the resident is entitled to exclusive possession of the premises, even to the exclusion of the owner or property manager of the premises. The California legislature has, however, recognized that there are legitimate reasons for owners and managers to enter the premises and therefore decided to regulate, completely, the rights and obligations of owners and residents in respect to entering the resident's dwelling unit. In 1975, the California legislature limited the right of entry by a landlord to four categories. The statute states that these are the only reasons a landlord may enter the premises (unless specifically specified within another statute such as waterbed inspections). Furthermore, the rights and obligations under this statute cannot be waived by the tenant.

Emergencies

The first, in cases of emergency, is only permitted when there is a true emergency which effects the health or safety of the resident or the protection of the premises from damage. It must be impractical to give notice in these situations. Courts are extremely sensitive to the right of privacy of residents and will carefully scrutinize the "emergency" which led to entry by the owner or manager. Entry under this category does not require that a notice of intent to enter be given to the resident prior to entry.

Repairs, Services, Showing

The second category allows owners or their agents to enter into the premises to make necessary or agreed repairs or services or show the premises to prospective tenants or purchasers. This category also allows mortgagees, workmen and contractors to enter the premises.

Since the owner is responsible to keep the premises in a habitable condition, the owner may need access to the interior of the unit to maintain the unit's habitable condition and should be able to make periodic inspections for specific purposes, i.e. to inspect electrical or plumbing fixtures in accordance with industry standards. Entry for "general inspections" is not listed in the categories of permissible reasons to enter.

An owner or manager may also enter the dwelling unit to make any agreed upon repairs or services. A Notice of Intent to Enter must first be delivered to the resident giving the resident "reasonable notice" of the date and time of the proposed entry. Effective January 1, 2003, requests of entry must be in writing. The notice of entry may be either personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. We recommend posting all four corners of the notice to the main entry way.

California law requires landlords to give the tenant "reasonable notice." The law presumes 24 hours is reasonable. However, if the notice is only mailed, the law presumes that six days prior to an intended entry is reasonable. The only exception is in cases of an emergency or when the tenant has abandoned or surrendered the premises. In these events, entry need not be made during normal business hours and no prior notice is necessary.

Also, if the purpose of the entry is to exhibit the unit to prospective or actual purchasers of the property, the notice may be given orally, in person or by telephone, if the landlord has notified the tenant in writing within 120 days of the oral notice that the property is for sale and the tenant was informed they may be contacted to allow for an inspection. At the time of the entry, the landlord or agent is required to leave written evidence of the entry inside the unit.

Although the law presumes that twenty four hours is reasonable notice, but each case should be individually examined to determine what is reasonable under the circumstances. The court would measure the notice period by what a reasonable, prudent property manager or owner would have needed in like circumstances.

Abandonment

The third category allows an owner or manager to enter onto the premises "when the tenant has abandoned or surrendered the premises." It is not unusual to experience a resident who either moved out in the middle of the night or has indicated that he or she was moving but did not give final confirmation of the vacancy.

Abandonment, as defined by Black's Law Dictionary, means that there must be ". . . an absolute relinquishment of the premises by the tenant consisting of act and intention." These are sensitive issues and a look at the total circumstances is warranted before a decision to enter should be made. It is often difficult to determine if the tenant has abandoned the premises without taking a look inside. If there are objective facts which would lead a reasonable person to believe that the tenant had abandoned the premises, then you may enter based upon the belief of abandonment unless, of course, there is any indication that the tenant has not abandoned or surrendered the unit.

Posting a notice of your intention to enter is not legally required if you are entering based upon abandonment or surrender. However, many owners and managers make it their practice to post a 24-hour notice of intent to enter based upon abandonment to allow for the slight chance the resident did not intend to abandon the unit and has the opportunity to contact the owner or manager.

When entering, it is always advisable to have at least two people present to check around for any recent signs of living activity, such as unspoiled food or sleeping bags. If there is still a reasonable belief that the tenant has abandoned the unit, photographs or video tape are wonderful ways to document the condition of the unit before taking over possession and removing any personal property.

This method should not be confused with the abandonment of real property procedure set up by the California legislature to protect owners and managers from liability for taking over possession based upon their good faith belief of abandonment. Under this procedure, owners and managers can protect themselves from liability if they reasonably believe the tenant has abandoned the unit in question.

To take advantage of this procedure, the owner or manager must send a notice of his or her belief of abandonment of the rental unit and allow the tenant 18 days from the date of the notice to declare that the unit has not been abandoned. However, before the abandonment letter can be sent, the rent must remain unpaid for a period of 14 days. If the tenant fails to notify the owner of his claim of possession, the owner may take over possession after the notice time has expired. There is still some liability exposure for the owner, however, if the tenant claims that the owner's belief of abandonment was unreasonable.

Court Order

The fourth and final category allows entry by the owner when the entry is pursuant to a court order. This implies that the owner or manager cannot engage in self help if the resident refuses entry, even in cases where the owner is completely within their rights for the entry. Instead, the owner or manager must seek a court order prior to entry. To enforce the order, the Marshal or Sheriff would meet the owner at the premises to allow safe entry into the dwelling unit.

Unfortunately, a requirement for a court order to enforce entry forces the filing of a lawsuit because the court cannot grant an order out of thin air; it has to be attached to litigation. One way to commence litigation is to use the Three Day Notice to Perform Conditions and Covenants or Quit. For example, if the owner wanted to show the property to prospective tenants or allow workmen in to make necessary repairs, but the resident refuses, the Notice to Perform Conditions and Covenants or Quit would instruct the resident to give reasonable dates and times for entry into the unit. If the resident fails to comply with the notice, an action for unlawful detainer could be filed. Once the lawsuit is filed, the owner is then able to apply for the court order allowing the entry.

Obviously, it is far better to use your power of persuasion to convince the resident to allow entry voluntarily. Keeping a copy of the applicable code and pointing out to the resident the obligations of California law and your lease may persuade a recalcitrant tenant to obey the law. If your rental agreement or lease provides for attorney's fees, the threat of litigation coupled with attorney's fees awards may also convince the resident that it is not in his or her best interest to refuse reasonable entry needs.

Waterbeds and Smoke Detectors

The law also affords two other limited reasons for entry into the resident's dwelling unit: to periodically inspect smoke alarms and to inspect waterbeds for compliance with state law.

For waterbed inspections, the law specifically provides that "... the owner, or the owner's agent, shall have the right to inspect the bedding installation upon completion, and periodically thereafter, to insure its conformity with this section." It is wise to specifically address these issues in the lease and clearly define what rights the owner or manager has in regard to entering the rented unit.

General Inspections Prohibited

The above reasons, methods and procedures are the only ones an owner or manager may use to legally enter the resident's dwelling unit. Many owners and managers believe that they can enter the unit for inspection purposes only. Entry for general inspection purposes is not, however, permitted under current California law. In fact in the early 1990s, a bill was introduced in the California legislature to allow owners and managers to enter the inside of the unit for general inspection purposes, but the bill died in committee.

Time of Entry

Time of entry unless in an emergency is also limited to normal business hours. Most judges construe "business hours" to mean between 8:00 AM and 5:00 PM, Monday through Friday, although an argument can be made that for leasing agents and property owners and managers, Saturdays and Sundays are normal "business hours."

The reason the legislature heavily regulated the issue of entry is to protect the right of privacy of the resident. Violation of entry rules could lead to litigation and liability for invasion of privacy and trespass among other possible causes of action. It is therefore prudent and responsible to stay clear of the appearance of violating the rules of entry set forth by the California legislature. 

(The above discussion is general in nature and should not be construed as individualized legal advice. Readers are cautioned to seek individualized legal assistance based on a detailed analysis of their particular facts and circumstances. If you have any questions regarding the above material or any other matter involving landlord-tenant issues, you may contact the Law Offices of Kimball, Tirey and St. John, 800-338-6039.)

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