Habitability Laws and How to Avoid Lawsuits

Jul 10, 2024

Bijan Shakibkoo from SNS Law Group recently joined a discussion with the Apartment Owners Association to talk about habitability issues in California, and how landlords can avoid lawsuits around this issue.

Transcript:

Hi everybody, this is Jeff Faller with the Apartment Owners Association. Today we’re going to be talking about habitability in California. This is California building code that becomes an issue sometimes when you serve an eviction notice.

Lots of times this is something that comes up, but you want to maintain your property 100% anyway, and so just knowing the code and being aware of just what the requirements are is so important.

Apartment Owners Association

Before we get into that, AOA has been around for over 40 years and we are dedicated to your real estate success. We are in your corner with all kinds of tools that will help you manage your properties better. We have property management software, we have the highest quality tenant screening that you will find, and so much more.

You can call in and get property management advice, and it is $97 a year, not a month, a year, and there is no per unit fee. In addition to it, there’s no extra user charge so you can have unlimited users.

Anyway, so really we’re here for you and we have a lot of different events that are coming up and I just wanted to mention a few of them. In person, in San Diego on the 14th, it will be landlord-tenant conflict resolution, and so that’ll be cool. Then we have on the 26th in Fremont, we have the 12 pillars of property management. That’ll be a great seminar that you’ll want to attend as well. And then on the 28th in Oakland, we’ll have understanding the eviction process and also just asset protection. So those different ones are coming up.

We just had the Bay Area Landlording Power Conference which was just amazing, so good to see everybody in person. And then we have on March 20th the AOA million dollar trade show and landlording conference and for that event, we already have over 150 different vendors that will be there. We have a virtual golf simulator that we’ll be using to make this thing more fun, but we’ll be using that as a way to raise money for the AOA Political Action Committee because we have some major things coming up.

The Justice for Renters initiative that’s going to be on the ballot in November. We’re making yard signs and we’re going to give everybody a yard sign that’s a member. You want more, we’ll give you extra, and so we need to raise money to be able to do that and so fight this repeal of Costa-Hawkins.

For those of you that missed it, on Tuesday we had a live stream with an attorney in New York City who works with Pacific Legal Foundation, and you’ll want to catch that one because last week, the Supreme Court ruled to not take a New York City rent control case that has national implications. A lot of people often ask me, “How is rent control not a takings [case]?” And yeah, we all agree, but anyway, it goes into that a little bit. So those are things that are coming up, things that you can catch.

Guest Speaker: SNS Law Group

Anyway, we’re just really thankful for SNS Law Group making this video possible today. Just this morning, I looked to see, they have all five-star reviews on Google and Yelp. They’re focused on real estate and business law, those are the two areas that they really specialize in, but landlord-tenant disputes, of course, real estate development, acquiring and selling real estate, and many other legal matters that they cover.

So if you’re in the LA area, you may want to give them a call. You can go to our contractors and vendors page online or just look it up in your magazine and you’ll probably find them there.

So today our speaker is a co-founder and partner at SNS Law Group and before co-creating SNS Law Group, he found a passion for real estate management and development, and he managed over $100 million in assets for his clients. This is a high-level guy and he has a Juris Doctorate from University of West LA. So it’s really a pleasure and an honor to introduce to you Bijan Shakibkoo.

Bijan Shakibkoo. Esq.

Thank you very much, Jeff. I appreciate the introduction and it’s always a pleasure working with you and AOA. You guys have been a big support for our firm and we’re very happy to take on any of your clients and as always, thank you very much for the introduction.

Good afternoon everyone, my name is Bijan Shakibkoo. I am a co-founder and managing partner over at SNS Law Group. My practice areas are really a range of things in the real estate realm. I’ve practiced in the real estate realm and have done much work within the real estate realm within the past decade, but specifically within the legal realm, my practice areas are unlawful detainer actions, real estate litigation, contract disputes, a lot of business litigation, landlord-tenant disputes, quiet title cases, and partition cases. So here at our firm, we really handle a broad range of real estate practices.

Habitability Claims Overview

Today, what we’re really going to talk about, and what’s been coming up a lot in our firm and we’ve been having a lot of clients give us a call about, are habitability issues. Right now, what’s been going on, especially in the residential realm of real estate for landlords, is a lot of tenants are filing lawsuits for habitability claims. The way that they’re articulating this, how I look at it is, as a Ponzi scheme. They’re trying to put a landlord in a position where they can take money from them. We have well over a handful of cases that we’re defending landlords on habitability claims.

Habitability Lawsuits and How to Avoid Them

This is coming up a lot, and they’re similar to ADA lawsuits where you’ll get an individual who is handicapped or disabled, and they’ll come onto the property and they’ll find issues with the property that are not per code, and they’ll turn around and slap a lawsuit to make money.

A lot of these tenants are also defending themselves in eviction cases based off these habitability claims.

Implied Warranty of Habitability

The first thing that I really want everybody to understand is typically when a landlord is receiving a lawsuit under a habitability claim, it’s really focusing on the cause of action of an implied warranty of habitability. What that means is that landlords have a duty to maintain their rented properties in a habitable condition. That means when they sign a lease contract with their tenant, there is an implied warranty that the unit or dwelling is a habitable dwelling. It’s in every single lease agreement, primarily residential lease agreements, that it’s implied.

Specifically under Civil Code 1941.1, which is a very important civil code for landlords to understand because that gives you the guidance on what the standards are and what to watch out for when you have a tenant occupying a unit, and to make sure that it’s a habitable dwelling.

Waterproofing and Weather Protection

The conditions that would render the property uninhabitable are first, insufficient waterproofing and weather protection of the building. It’s very important to maintain the roof, make sure there’s no leaks going on in the roof, and if there are any leaks, to address them, especially with the exterior walls of the building. If the exterior walls of the building are at credibility at issue where there’s water intruding into the building through the exterior walls, that must be maintained.

Any broken windows or broken doors, obviously that has to be fixed as well. That’s the landlord’s duty to do that and that is a claim that tenants will raise in order to defend themselves in an eviction action or ultimately file a habitability lawsuit against the landlord.

Plumbing and Gas

Other issues are plumbing and gas. It is important that all the plumbing and gas is in good working order. A lot of tenants, what they do is, and I’ve seen this on and on, they’ll try to actually create a habitability claim by doing the damage themselves, by going in and maybe damaging some of the plumbing or saying that they don’t have gas in their unit.

So whenever there are issues in regards to plumbing and gas within the dwelling, just make sure to address it and also make sure that it’s being done specifically by somebody who specializes in that type of work.

If permits need to be pulled, that’s very important as well because a lot of the times when we’re getting into the nitty-gritty of litigation, what a lot of attorneys do is they request discovery and they want to see who’s the person that went out there and conducted these repairs. If they see that the individual was not qualified to do that type of work, it does really take an effect on the case. It is important to make sure that the individual who is going to be conducting those repairs or addressing any gas issues is qualified to do that, and the proper permits must be pulled as well according to building and safety codes.

Water Supply and Temperature

Other issues are water supply and temperature. We have to make sure that the tenant has access to water. All the sinks, all the kitchen sinks, the bathroom sinks, showers, all must be functioning, even the faucets. If the faucets are having issues, that has to be repaired too and that is a habitability claim that they could bring up. They have a right to have hot and cold running water.

For example, if there is a sink that is only issuing cold water, that’s an issue. It also has to have the choice to be able to have hot and cold water being given to the tenant as well.

Heating Facilities

Heating facilities, lack of heating facilities, it’s very important for the tenant to have heating in their unit. A lot of landlords, and there’s a lot of confusion on this, but the civil code actually does not require that the tenant has a right to AC, which is air conditioning. They don’t need to have AC, but they do need to have some sort of a heating appliance, so there needs to be some sort of heat being provided within that unit and obviously it has to be in good working order as well.

Electrical Issues

Electrical issues in the unit, all the lights must be functioning correctly, smoke detectors must be connected correctly, no faulty wires hanging, nothing that’s going to cause a safety or hazard issue towards the tenant. They must be in good maintaining order.

The whole premise around these is that whatever is going on within the dwelling, it has to be maintained and it must be in good order. If there’s anything not working, it’s important to address that. We’re going to get ahead further down in the slide about what that means.

Building, Grounds, and Areas Controlled by Landlord

The building grounds, the common areas, areas that are controlled by the landlord, it has to be in a clean and sanitary condition, so that means it must be free of any debris, filth, rubbish, garbage, rodents and vermin. You know, I’ve seen time and time with my clients where you know the the the housing department will come out there and they’ll just see you know just a little piece of trash on the property, or there’s any trash built up near the dumpster, they’ll issue a citation for that and they’ll give the landlord a notice to comply and it’s not fun dealing with the housing department, whoever has gone through it, they they do give a headache.

So it is important to keep the common areas of the proper property, or whatever areas that are in control of the landlord, in clean and safe condition. Especially safe, and we’re going to get to that next.

Other Areas

Other areas within either the dwelling or within the common areas or the common grounds of the property. The floors must be in good condition, the stairways must be sufficiently per code. Some structures are actually considered historical and given the age of the property, if it is already passed and it’s to code, it’s not an issue. Sometimes these newer buildings, they do require certain things to be up to code, but primarily things that have to be maintained and good repaired are the floors, the stairways of the property, and any railings.

I’ve seen a lot of cases where within the dwelling a lot of the floors would be bubbling up and that’s a hazard and also it’s a liability for the landlord as well because if the tenant goes ahead and trips and falls or a guest of the tenant goes ahead and trips and falls and that’s a lawsuit right there on its own. So it’s very important to keep the floors, the stairways of the building and any railings in good condition.

Mail Receptacles

This is, for landlords, I’ve noticed that they’re under the presumption that they have a mailbox so that’s okay just because they have a mailbox. But it’s also very important that the mailbox also has to contain locks and it has to be conformed with the Postal Service standards.

So if there is no lock for the tenant’s mailbox, it is very important to get one because you know they’re going to raise issues as far as you know my mail is being stolen, I’m not receiving my mail, so it’s very important to be able to assure that those mailboxes have locks and they’re in good condition as well.

Health and Safety Code 17920.3

The health and safety code, it coincides with the civil code that we mentioned earlier, which is 1941.1. And typically when tenants want to hire an attorney, an attorney looks through all these types of issues, they look at these two codes and see if the landlord is abiding by any of these codes.

Bathroom, Lavatories, Bathtubs, Showers

It’s very important, they really do coincide with one another, so the unit has to be in adequate sanitation, if there’s any improper water closets or lavatories or bathtubs or showers in the dwelling, it has to be in good condition.

A lot of my issues that I’ve seen with my clients who call me, they tell me that the tenant doesn’t like the color of the wall or they don’t—it’s more like stuff that is more aesthetically pleasing. That’s not really a duty that a landlord has to provide to the tenant. What’s really important is that it’s in a clean manner, it’s in good condition. So long as it’s in a good condition and it’s not raising any health or safety concerns, then they’re fine. So if they’re happy with a pink wall then it’s too bad. The wall is pink. You can’t raise a habitability issue on that.

Kitchen Sinks, Hot and Cold Running Water

Any lack of improper kitchen sinks, lack of hot or cold running water, kind of similar to what I spoke about earlier, lack of adequate heating, improper operation of required ventilating equipment, any infestations, insects, vermin, rodents, and visible mold growth.

Infestations

Two things that tenants love to raise are infestations and mold. And I will tell you with infestations, it is a very strong claim that a tenant could have because when there’s infestation going on within the dwelling, it’s pretty apparent, and if they have documentation of that, it’s difficult to be able to defend on. So if there’s any issues with any infestations of bed bugs or cockroaches or ants and stuff like that, it’s very important to address those.

Mold Growth

Now as far as mold growth—mold growth is very common right now. It happens in a lot of buildings, especially the older ones where they lack ventilation. On a legal standpoint, if a tenant is trying to file a habitability claim based off of mold growth or they suffer damages from mold, it’s very speculative in order to prove that in court.

When it comes to mold, mold takes time to build up. And then also, the health concerns towards mold also takes time. And if the individual is obviously allergic to mold, then obviously it will show up sooner, but individuals who are not allergic to any mold, it really takes time for those health damages to rack up.

So when we’re going into litigation for mold issues, it’s a hard thing to prove on the tenant’s end, but at the same time, if there is any evidence of mold in the unit, if they’ve gotten testing that shows that there’s positive spores or high count of spores within the dwelling that have mold, it is very important to address that, because just by that report it shows that there’s mold in a unit and it does bring a lot of liability towards the landlord.

So mold is a very common thing. It’s very important to advise your tenants to keep the dwelling in ventilation, if they need to, if it’s an older building, maybe try to leave the fan on when they’re taking a shower, or if there’s a window in there, to leave that window open. But if they do request or if they do put the landlord on notice that there’s any mold in the unit, it is very important for the landlord to be able to address that.

Landlord Responsibilities

What are the landlord’s responsibilities? What I advise my clients to do anytime a tenant brings up any repair requests or any issues within the dwelling, I would first advise my clients to keep everything in writing and also document everything.

If there’s any request for repairs being made, I would let the tenants know if they want to make a repair request to put that in writing so you have that documented.

Address Issues within a Reasonable Time

Because, how the law works is that if the landlord has a duty to obviously provide a habitable dwelling, and if the tenant puts the landlord on notice of any conditions in the property and any conditions that need to be repaired, the landlord has a reasonable time to be able to address those issues.

The statute is not very clear as to how many days does the landlord have to be able to address those issues, it’s just a reasonable time. So depending on the circumstances, it’s really a case by case basis. So, if there is a massive leak coming from the roof and the landlord hasn’t done anything about it in a couple weeks then that would definitely be unreasonable and that would be a breach of the implied warranty of habitability.

Document the Repairs

And like I said, document everything. Everything should be in writing. Any communications between the tenant and the landlord should be in writing. I would respond adequately to the tenant, send somebody out there to take a look at it, and then also, if it needs to be remedied, depending on the issue, definitely remedy it.

I think the biggest thing that I really want to stand out here is try to keep everything in writing and document everything, take pictures of the repair requests that are being done, take pictures before and after the repairs have been done.

And if, for example, if they’re giving issues about mold then it’s very important to get a certified mold specialist in there to do a test and to take their report. Because if you’re going to send a handyman there to go and wipe down the wall where it shows that there might be some mold, that could be an issue and the tenant could use that against you.

So, if they are claiming any mold within the unit, just make sure you get a certified mold inspector to get in there and get that fixed.

What Can the Tenant Do?

This is what the tenant can do in the event the unit is uninhabitable. What they could really do here is, and this is the part where it really becomes a headache and where you really start to see what kind of a tenant that you’re dealing with, and how they are trying to gather their evidence to use a habitability claim against you.

Report to Government Agencies

The first thing they’re going to do is go ahead and file a complaint with the governmental agencies, whether that’s the Health Department, Los Angeles Housing Department, Building and Safety, they’re going to try to document as many things that they can to use against you.

That’s one of the things that technically when I see an onset of a habitability case happening, what they will do is they will first notify all the governmental agencies, they’ll get them out there, they’ll conduct their inspections, they’ll give the the landlord a notice to comply, and the landlord does have a duty to comply to that notice. And if they don’t, and especially if it’s a rent controlled property—what a lot of landlords want to refrain from is from the property being put into a REAP program and once the property gets into REAP, it gets it gets very difficult to get out, so it’s very important to be able to, again, address all the concerns for the tenant.

But what they will do first is go get these governmental agencies in and then try to file a complaint with the Housing Department as well.

I’ve had one case where we had a client where he hired us just to begin a simple eviction and we’re almost going over a year now in litigation. And this was just on an eviction action and she raised habitability claims, she went and hired an attorney, the attorney filed a lawsuit for a habitability claim, she’s still in the unit, hasn’t paid a dollar of rent in a year, and she’s gotten all the governmental agencies involved.

Unfortunately the property did end up going into REAP, and not from the owner’s fault at all. Because the tenant articulated this in a way where she deliberately planned this to be able to put the property in REAP and also recover more damages on the habitability claim.

And what a lot of tenants are doing now is they’re actually failing to provide access to the unit and that’s a very common thing that’s happening. They’ll say that there’s an issue with the unit and when the landlord wants to come out there to fix it, they won’t provide them access.

And depending on how the property is situated, if that issue is not addressed immediately, it could drag on to a year’s worth of litigation.

So, one of the things they could do, like I said, they could go make complaints with the governmental agencies.

Abate Rent

They could abate their rent. They could choose not to pay their rent.

Repair and Deduct from Rent

They could repair the issue in the unit and then deduct it off the rent.

Defend Eviction Case

And then they could also use that as a defense towards an eviction case, which is similar to the case that I had that I was just speaking about earlier. We started by filing a simple eviction case, and then she raised all these habitability issues, and I advised my clients, given the circumstances and given the evidence that she has, I think it’s better if we’re if we’re going to have to dismiss this case and address these issues and then refile later. So they could defend on that.

It is a very common thing to do, especially for non-payment of rent. So, if they’re not paying rent and if there’s habitability issues, they have a right to not pay rent.

File Lawsuit

And then ultimately they’ll end up filing a lawsuit for the habitability issues. So, it’s very important if you’re looking to file an eviction action, just make sure that you have addressed all the tenant’s repair requests and to make sure that that unit is habitable, because come to find out, once you file that eviction, if that unit is not habitable, and they have documentation of that, it will be difficult to get that case through and probably might get tossed out, and they’ll succeed.

Question and Answer

So that was the end of my slideshow, with implied warranty of habitability and any habitability claims. And I’m very open to taking questions and answers in regards to this, and I’m sure a lot of people have them, given these new circumstances that have been coming up.

Great, thank you so much, Bijan. There definitely are lots of questions and so many interesting things here. If you’re an AOA member, there was a guy that set up a code enforcement program for Los Angeles and he actually did a three-part series, and covered like 80-some-odd different code violations, with pictures, and really went into it. You can only access that when you log into your AOA account and that’s in there. It is not on YouTube, it is only in your AOA account, so that’s something that you can look at if you’re wanting even more information. Because, again, this is a topic that you could spend hours and hours on it, but I like the way that you covered it.

Now we can get to some of the questions.

Obligation to Fix Broken Door and Kitchen Cabinets After Pest Infestation Due to Tenant

Q:

We have Kevin, so thank you for your question here. He inherited a tenant from hell who smokes and has rats due to dirtiness. I paid for the pest control, now she wants me to fix the broken door and kitchen cabinets—am I obliged to do this?

A:

Bijan Shakibkoo

I would say you are. I would say you are. It’s very important to get those issues addressed. I understand that it could be a headache, and I would say if there is—to answer your question—yes, do make those repairs. But I would also say after you make those repairs, whatever attorney that you do work with, see if you can file an eviction action off that.

From what Jeff was telling me, there was smoking going on in the unit, and if they’re smoking going on in the unit that’s a breach of the lease agreement. That’s definitely grounds to be able to file an at-fault eviction, so I think that’s a great avenue to take. So long as you have that documentation that they’re smoking in there, that’s pretty solid grounds.

Jeff Faller

And then, also, just to follow up on the pest control—normally when they do that, there should be a report and you could ask them to document what they believe are the causes… some of the pest control companies will just do that for you. But you may need to request that if they didn’t because that will help you in court and Bijan’s like…

Bijan Shakibkoo

Of course. That’s a good point, Jeff. I was actually gonna add to that. A lot of these infestations are actually by the wrongdoing of the tenant. They’ll leave food around, they’ll leave the condition of the unit in a way where pests are attracted to it. It’s very important, what Jeff said, to be able to to get those reports and to try to put in those reports that this is how the issue occurred. Not by the landlord’s doing, but by what the tenant is doing within the dwelling.

Jeff Faller

And John on YouTube, he had a tenant that was a Pied Piper to ants, basically. And basically, he let the guy break the lease just to get him out. So, it’s important that, what that kind of tells me, or or what’s important, a good best practice would be to take pictures the day that you’re giving them the keys. Take pictures so you have it documented, this is how I’m giving you the unit.

Inspection Frequency

Q:

Hey Bijan, how often, what’s reasonable for people to be able to inspect the unit? Like, how many times in a year would you recommend that people inspect a unit to see that the smoke alarm’s still in place and all that stuff?

A:

Bijan Shakibkoo

There’s really not a… what we’re going to get into is—and I understand what you’re asking—it’s more of a whether it’s going to come into a realm of if the landlord is harassing the tenant, right?

And if they’re continuously entering the unit, by issuing, whether if it’s a proper 24-hour notice, and everyone makes sure that it is a proper 24-hour notice because they could also use that against you too. But if they’re coming in every week, then yeah, that’s unre… it goes to a reasonableness standard.

So if they’re coming in every three months just to conduct an inspection, that’s not an issue. But if they’re coming in, issuing a notice every week to get into the unit, obviously that’s unreasonable. So, it’s just more of a reasonableness standard given a case by case basis. So, if the unit is having a lot of issues and there needs to be repairs going on, then obviously you’re going to have to issue multiple notices to get in there to make those repairs.

But if the unit hasn’t been having any issues and you just want to conduct a basic inspection, I would say maybe every three months that would be sufficient.

Ceiling with Asbestos

Q:

What if you have an acoustic ceiling that has asbestos? Could that be a problem in the future?

A:

Bijan Shakibkoo

An acoustic ceiling that has asbestos? That’s a very good question. The popcorn ceiling. It really depends if it’s been disturbed or not. So, if you’re going in there and… because a lot of individuals are not sure whether there is asbestos in there… given the fact that it is a popcorn ceiling, it may be a presumption that it does have asbestos. But for the sake of the argument, let’s say it does and you see that that asbestos has been disturbed. So if you see, like, a hole in the wall or if you see them chipping off, then I would definitely address it.

Because that will be an issue. As far as my mind goes, to the legal standpoint of things, and if they really want to file a lawsuit based off of asbestos, asbestos is not something that occurs in the health overnight. This is something that’s through a long term period. So effects of asbestos won’t come up until years down the line.

But if you know that that unit has asbestos, and that popcorn ceiling is does have asbestos, and it’s been disturbed, it’s important to be able to address that.

Jeff Faller

So, don’t disturb it. And if you’re doing any kind of work that would disturb it, you really need to use a licensed contractor that has the certificates to handle that.

Bijan Shakibkoo

Exactly. And if they’re looking to remove it, also, please do not hire a handyman. Get a certified specialist in there to be able to remove that asbestos. Because even if that handyman that you hired gets sick based off of that, they could also file a lawsuit against you. So, it raises a lot of liability.

Jeff Faller

And the same thing goes for the lead, right, because there’s lead-based paint and, you know, same kind of thing.

Bathroom Ventilation and Mold

Q:

How do you handle a tenant who’s not wiping down the shower for mildew and ventilating properly, not running the heater which generates mildew and mold? We paid them to move and now everything’s okay but they’ve threatened to sue. So, what do you do with someone who’s not taking care of the place like that?

A:

Bijan Shakibkoo

It goes back to documenting everything. That’s the most important thing. It’s very important to be able to document the issue. Make sure that you have the report showing that it’s from the failure of the tenant ventilating the place, so in the event a cause of action does come down the pipeline, you have that documentation to show that, “Hey, I came and addressed these concerns. I already notified the tenant that they have to ventilate this issue. It’s in the report that states that this is a lack of ventilation, and this is my defense.”

A lot of landlords want to know, can I force them, or can I issue a three-day notice because there is a lack of, they’re not keeping the unit in a good condition, or they’re not ventilating it properly? Well, that really is going to go back to what the lease agreement states. Because, for example, I have a lot of clients that will call me and they say, they tell me just the specific issue. The first thing that I would do is I would go into the lease, if they have one, and I would pinpoint to see where in the lease agreement states that they have to keep it in a good working condition and they also have to ventilate the unit and if that’s there and they’re breaching it, that’s grounds for an eviction and we could issue a three-day notice for that.

Jeff Faller

And just a thing on mold. This is kind of more property management than legal, and I am promoting this product, but I get nothing for it, I just want you to know about it. It’s called Benefect. And this is totally non-toxic and it actually kills mold. And bleach might kill the mold but it leaves the spores and it just comes back and back, where if you use that stuff, it won’t. Benefect. Benefect is the name of it. People try to paint over mold, that doesn’t do it. There’s a lot of things that people try and it doesn’t work, but if you get like a mold remediation company, that’s what they use. You gotta take care of mold properly, you can’t just paint over it or put wallpaper over it or something. So, please take care of stuff. And, I mean, it’s in your best interest. It’s in the interest of your tenants. You want them to be healthy, you want them to be able to work, they gotta pay rent, right?

Bijan Shakibkoo

Especially right now. Right now tenants have a lot of protection and they will use this against you. Again, and I’m sure my partner has said this in the other presentations, the city of Los Angeles have lost their minds. They’ve been really applying these stringent laws against the landlords and making it very difficult to even do anything with your property anymore.

Getting Access to Unit

Q:

My renter requests to get the contractor’s name and they need the ID of the person to get into the unit. Is that legal?

A:

Bijan Shakibkoo

I would say no. And this is very similar to the previous case that I spoke about before. The tenant was denying access because they wanted to know who the contractor is and what kind of work that they’re going to be conducting. That’s none of their business. What their business is is that they made the repair request and the landlord has a right to get in there to make that repair. How it’s done, whether it’s aesthetically pleasing or not, it has no legal bearings to it. So you’re not entitled to provide them with the contractor’s information and whatnot. You could let them know that they’re coming on behalf of the landlord, and I am a contractor, and once they get there they’re obviously going to let them know who they are. So, if they’re denying access because they want to know who the contractor is going into, that’s not a valid, they don’t have a legal claim to that.

Hoarding and Obstructing Ability to Conduct Work on Unit

Q:

What remedies can a landlord use when the tenant is a hoarder and the unit is so cluttered that it’s virtually impossible to work in the apartment?

A:

Bijan Shakibkoo

Hoarding cases are very sensitive cases. What I would say is, the best way to be able to benefit yourself with a hoarder is to make sure that what they’re doing in there is up to code. So, for example, if they’re having stuff that is up to the ceiling, that’s obviously not up to code and that’s a fire hazard. And you could put the tenant on notice of that. So I would say, if they want to get in there to conduct the work and there’s belongings that are in the way, from hindering that, again, document it. Document the fact that you went there, take photos of the unit showing where the belongings are and how it’s obstructing the landlord to be able to make those repairs.

Notifying Landlord Before Tenant Makes Repairs

Q:

Must the tenant notify of an issue prior to repairing and removing from the rent. So it sounds like they’re just getting it fixed on their own without even telling the owner.

A:

Bijan Shakibkoo

A lot of the time, in a lot of lease agreements, it advises the tenant if there’s any modifications that are going to be done within the unit, they actually have to get the landlord’s consent first. And if they go ahead and make those repairs without putting the landlord on notice first, then the landlord is not going to be held responsible for that.

I would say that it really depends, but I would really look back at the lease agreement because that’s really what’s going to govern.

Known Habitability Issues but Tenant Hasn’t Reported Anything

Q:

What if the tenant hasn’t reported anything but there are some issues?

A:

Bijan Shakibkoo

If you are aware of issues, again, I know a lot of people don’t want to open up a can of worms. Again, it’s more important to address it. I know you don’t want to deal with that headache, but if you know that there’s issues going on within the dwelling, then I would for sure go in there and address it and get that repaired, yes. I would not wait until the tenant notifies me because you don’t want to give them ammo. The last thing that you want to do is to give them more ammunition to use against you, so it’s better to get in there and make that repair.

Staying Up to Code and Having a Certificate of Occupancy

Q:

DWP is requiring us to change the electrical panel. Code Department got involved claiming my tenant was stealing electricity. My contractor doesn’t think so. Do I have to let code enforcement in? No case has been filed.

A:

Bijan Shakibkoo

There’s a lot of questions that I have towards that… whether the tenant was the one who called the governmental agency to come out there or if code enforcement came out there themselves. I would say if they need to get access to the unit, yes, I would provide them access for that. And obviously if the panels need to be updated, then definitely address that issue because you want to be code compliant. You don’t want the tenant to have a claim that the unit’s uninhabitable because it’s not up to code. And that goes hand in hand with units that don’t have a certificate of occupancy. It’s very important to have that certificate of occupancy if it’s a permitted dwelling. These are big lawsuits too, where you know the unit’s not permitted, it doesn’t have a certificant occupancy, and in Los Angeles especially if it’s rent controlled, the tenant could claw back on all the rent that they’ve paid at three times the amount of treble damages.

Jeff Faller

So, right, yeah, that’s a big deal. And anytime you’re getting work done, get the permit if it requires a permit. You got to get it. And I’ve been speaking to members lately and they’ve even been saying that the insurance company is requiring a permit, they’re asking to see the permit for that water heater that was installed, or you know fill in fill in blank on what it might be that would require a permit, which sometimes you just don’t even get it. And you’re saving a few bucks on one hand, but then down the road if there’s ever a liability, then you’re totally exposed to risk. So, I just want to mention that. Any construction, get the permit. Get the permit, guys, you’re not saving money, I guarantee you’re just not.

Bijan Shakibkoo

You’re absolutely right. I’ll add to that. If there’s been any work conducted in the unit that’s not permitted, and again, if it goes back, if there’s a lawsuit being filed, that would be used against the landlord. And primarily, especially with insurance companies right now, and a lot of landlords are aware of this, they’re no longer providing any more policies in California. A lot of the insurance companies are pulling out. And when I have my clients call me and they receive a lawsuit for habitability claims, they’re hesitant to give it to their insurance company, because number one, they don’t want to be cancelled, and number two, they don’t want their policy skyrocketing.

I always advise my clients, because I always want to save them money, I don’t want them paying me money when they could have insurance companies step in, and I tell them give it to your insurance. And they’ll tell me time and time again, I don’t want my insurance to be involved. I’d rather pay you the money, you defend me on this case so I don’t have the risk of getting my policy cancelled or my premiums going up.

Tenant Refuses Access to Unit

Q:

What can I do if I provide a 24-hour notice to enter and the tenant refuses access to the unit.

A:

Bijan Shakibkoo

Call my office.

Jeff Faller

That’s grounds for an eviction, is it not?

Bijan Shakibkoo

That’s grounds for an eviction. Yeah, right, that’s definitely grounds for eviction. And make sure you document that when you’re posting those 24-hour notices, take pictures of them. And if the tenant is not giving access, then you should get an attorney involved, whether it’s my office or any other office.

Lawsuit After Addressing Repairs in a Reasonable Amount of Time?

Q:

If you address repair issues in a reasonable amount of time, which you talked about, within a few days, and document it regarding leaks and mold, do tenants still have a leg to stand on in filing a habitability lawsuit?

A:

Bijan Shakibkoo

No. Not necessarily. There are those lawyers out there that love to shoot from the hip and create claims out of nothing. I can’t say that they won’t. But I would say that the merits to the case are very, there’s not going to be any merits to the case. So long as you addressed the issues, you got in there, you documented it. If they try to slap a lawsuit on there, you can easily get that tossed out.

Mold Inside Walls

Q:

Mold exists everywhere. How do you deal with a testing company that knows where to find mold in every apartment, inside the walls that are sealed and not open to the occupant?

A:

Bijan Shakibkoo

I wouldn’t go digging for it. If the tenant is making complaints about mold, obviously address it. If you go in there and you see that there may be issues about mold, then address those issues. But if we’re talking about within the drywall and issues like that, I would never… it’s like doing construction—you’re going to open up that wall then you’re going to be exposed to… now you’re going to be put on notice as far as what’s within that wall. And then you have no choice but to address it. But if things are reasonably apparent, if you see black mold on the wall or if there’s a heavy smell in the unit, then yeah those things need to be addressed. But I wouldn’t go out of my way to open up walls or really get into a heavy investigation. If it’s not apparent, don’t go too deep into it because you’re just going to open up a can of worms for yourself.

Jeff Faller

These are investment properties, so I know that we’re looking at the bottom line, but I do want to say that when it comes to mold, there are certain people that are highly allergic to it and they just respond way different than your average person. And I know that there are some people that are just straight lying, so I mean, I know there’s several different types of people out there. But there are some real cases where people just, for whatever reason, they’re just highly allergic and it’s like Kryptonite for Superman. So, try to understand that and really deal with it quickly because health is, I mean, what do you have if you don’t have your health?

Remedy When Tenants Threaten to File Lawsuits?

Q:

Is there any remedy for landlords when tenants constantly threaten to file lawsuits to exact concessions, even when you have diligently completed all the repair requests?

A:

Bijan Shakibkoo

Not necessarily. If they’re becoming a nuisance, or they’re becoming a headache and constantly reaching out to the landlord and giving a bunch of issues as far as within the unit, making complaints, there’s really not an avenue a landlord could take. But what I would advise that individual is maybe reach out to either my office, reach out to my office and see what other options that we’ll have for you. Because there might be other ways, because if this is a tenant that’s giving you a headache, there might be other avenues that we could be able to get them out.

Does 24-Hour Notice Require Tenant Confirmation?

Q:

After agreement from the eviction on the court is it okay to put a 24-hour notice with the renter and there’s no need to get their reply to confirm?

A:

Bijan Shakibkoo

From my understanding, there was a settlement agreement and an eviction action, and the landlord wants to get into the unit to either conduct any repairs with a 24-hour notice. You do have a right to post that 24-hour notice to get in there, but again, it just depends what kind of work is being done.

No, there’s no need for the renter to reply to that, it’s just a sufficient notice posted on the door, and again, I would recommend taking pictures of it as well, is enough. You don’t need to wait for them to reply, no.

Mold Inspection and Test

Q:

My renter requested to get the contractor’s name, and need the ID… I can’t force anyone to provide their ID. Also, the renter does not want to provide me with the photos. Is it okay to order an inspection or a mold test before doing the actual repair?

A:

Bijan Shakibkoo

Of course. I do advise that. If they’re giving issues with mold, what I would first do is test. See if there is mold and then get a licensed remediation company out there to remediate it. And then the remediation company will give a certificate of clearance.

Jeff Faller

Just open up the AOA magazine, there will be a mold category, and if you’re online, you can go to the contractors and vendors page and just type that in and then it will populate a list for you of companies that can inspect that. And then there are mold remediation companies.

Mandatory AC Units?

Q:

Is it mandatory that we install AC units?

A:

Bijan Shakibkoo

No, it’s not. Pertaining to the code, AC units are not mandatory, however heating appliances are.

Jeff Faller

Right. I was surprised… someone just showed me in the code where it says that it has to be 70°. You have to maintain 70° on the heating side.

Bijan Shakibkoo

It might be L.A. Municipal Code, not sure, but there’s no requirement that there needs to be air conditioning. It just has to be a heating appliance.

Asbestos Culpability

Q:

Again with asbestos: Isn’t the tenant culpable for seeing that when initiating the lease?

A:

Bijan Shakibkoo

Oh yeah, it’s reasonably apparent, yeah. There is, on a negligence standpoint, if you see that, yeah, that is a popcorn ceiling, but you went ahead and signed the lease anyways, so long as it’s not being disturbed, it shouldn’t be an issue. But if they’re deliberately disturbing it, then yeah, you have to get that fixed.

Q:

The renter did not want to be at the home during the repair, they only wanted me to open the door. How to provide me if I send some contact with me but they can claim I damaged their belongings?

A:

Bijan Shakibkoo

That’s a very common thing that tenants like to do. They like to state that my belongings were stolen or you damaged my belongings. Again, that just comes down to documenting everything. If you feel like you’re dealing with a tenant that’s going to try to make these claims, then I would advise you to have the tenant present there at the time, or at least bring a witness with you. Because in the event if it does end up in litigation, you have a witness to be able to testify to that. To answer your question, try to get that tenant in there with you, and if not, just document everything, bring a witness, and conduct your repairs.

LARSO and Air Conditioning Units

Q:

LARSO does not require an air conditioning unit?

A:

Bijan Shakibkoo

The L.A. Municipal Code is a little bit different from the civil code 1941.1 and the health and safety code. And that’s specifically pertaining to habitability. As far as the L.A. Municipal Code, which I didn’t dive into, because some of our viewers don’t—majority of them might not have rent controlled properties—it’s a little bit different. And they go by their own guidelines, so I would recommend them to review the municipal code to double-check on that.

Jeff Faller

It seemed like it was just proposed on the L.A. County level, about the AC units, if I remember.

Bijan Shakibkoo

Could be proposed, but I have never litigated, nor have I… an AC issue. Heating, all the time, but air conditioning, no.

Eviction and Habitability Claims

Q:

If I start an eviction and the tenant pays rent before court, can they still claim habitability?

A:

Bijan Shakibkoo

So, if you started an eviction, and the tenant has been paying their rent, yes they can still claim habitability. However, well, I was going to get into another realm, but yes, they could still technically claim habitability, yes.

24-Hour Notice After Eviction

Q:

Does the 24-hour notice apply to the situation after the eviction and come with the agreement?

A:

Bijan Shakibkoo

No, it applies to… any landlord has a right to issue a 24-hour notice, whether if there’s an eviction or not, if before, after, during, doesn’t matter.

Jeff Faller

And it’s in the AOA lease agreement. And make sure you’re using a fresh lease. The mold addendum is one of those that needs to be with it. There’s a mold booklet that you have to give them before you sign the lease. I believe it’s the mold that goes before you sign the lease, right, they need to see that one?

Bijan Shakibkoo

Correct. There’s a disclosure, the mold addendum.

Jeff Faller

Right. So lots of landmines. Hopefully we’ll help you avoid a few of them. And if not, then go see…

Bijan Shakibkoo

Call my office.

Jeff Faller

…SNS and they’ll take care of you. But really, maintenance, it’s good to take care of your building. If there’s mold, why is there mold? Is there a leak somewhere and then over time that could end up becoming more and more costly? Just take care of your stuff as soon as you possibly can. If you have the means to do that, please do. So often, trying to save money ends up really costing you money.

Closing Remarks

Jeff Faller

Bijan talked a lot about documenting. We have, AOA has property management software. It’s not included in your membership but you get it at a discount. And that is a great way to just document all your repairs, and through the tenant portal they can make the maintenance requests. And you can send emails that just get documented. And a place even where you can just log other types of communication, whether it’s in person or phone call or whatever else, you could just log it.

Anyway, so that’s something that’s available for you so take a look at that. Just go to the AOA website and if you scroll down some, past, on the homepage there you’ll see an advertisement for that, so that’s always something that you can pick up and give it a try.

I’m excited about seeing you at the L.A. Convention Center.

Bijan Shakibkoo

I am too, I am too. Looking forward to it. This is going to be our third one that we’re going to be over there with you guys and it’s always been a pleasure, it’s always great, it’s always a good time there.

Jeff Faller

Thank you so much for just sharing your time and giving of your time like that, we really appreciate it. Everybody, thank you for taking care of your buildings and being in the know… so I know that it’s going to pay off for you and we’ll see you next time.

Bijan Shakibkoo

Thank you Jeff, I appreciate it as always.

Jeff Faller

Okay, take care.