Illegal to Lock Out Late-Paying Tenant

QUESTION: My new rental agreement has a clause that worries me. It states that if I do not pay rent on the due date, the property owner can change the locks and remove my property without notice. Is this legal?

ANSWER: Under Section 789.3 of the California Civil Code it is illegal for a landlord to lock out a tenant by changing the locks, shutting off the utilities or any other method. If a property owner were to try such a method to remove an unwanted tenant, the tenant could file a court action. A judge may award damages for inconvenience, emotional distress and loss of use of the premises, along with punitive damages of up to $100 a day for the time the tenant is unable to stay in the premises or goes without utilities.

Even if you sign the agreement containing such a clause, it is invalid. Another Section of the Civil Code, 1953, voids agreements that ignore rights given a tenant by other civil codes.

However, you may be dealing with a property owner who is either ignorant of the laws, or who knows the laws but wants to do business his own way. In either case, this may presage a tenancy riddled with problems. If you have not yet signed the agreement, talk with the property owner about your concerns. If this clause is an honest mistake, and the owner is willing to respect your rights, everything may work out. If not, keep looking; there are plenty of good landlords who are aware of their responsibilities and who want to keep all of their dealings within the law.

Six-Day Difference in Notices Is Costly

Q: I gave my landlord a 30-day notice on the first of the month. However, my roommate didn’t submit his notice until the sixth day. The landlady now says that we will owe six days of rent next month and if we don’t pay it, she will take the money out of our security deposit. I don’t feel this is fair since I gave my notice on time. Am I not entitled to my full deposit back?

A: Unfortunately, your deposit money and your roommate’s deposit money are in the same pot, and the landlady does not have to treat the deposit separately.

If you still feel strongly about this, perhaps your local housing mediation program can help persuade the landlady to return your portion without the rent deduction. If this doesn’t work, talk to your roommate--after all, he created the problem, and perhaps he would agree to reimburse you for the extra rent payment.

Landlord Keeps Tenant Deposit for Painting

Q: We recently moved out of a home we had rented for seven years. Our landlady refused to return any of our $400 deposit because she said we were there for more than five years and although she was satisfied with the condition of the house, she needed the deposit to cover the cost of painting. Is she entitled to keep our entire deposit to paint the house?

A: The general concept concerning a deposit is that the outgoing tenant(s) should leave the property in the same condition it was in at the time of move-in, except for “normal wear and tear.” Most landlords find that after two or three years of tenancy, repainting is needed, and because it is usually considered normal wear, tenants should not be charged.

Of course, most of us don’t want to go to court over such an issue. Talk with the landlady and tell her that the deposit is just that--a deposit to be used for necessary cleaning and repairing damage caused by the tenants. If she balks, you might refer her to the excellent Nolo Press book “The Landlord’s Law Book, Rights and Responsibilities” (Vol. 1). And if that doesn’t work, you might try a local mediation service or you may have to file in Small Claims Court to recover your deposit.

This column is prepared by Project Sentinel, a rental housing mediation service in Sunnyvale, Calif. Questions may be sent to 582-B Dunholme Way, Sunnyvale, Calif. 94087, but cannot be answered individually. For help in the Los Angeles area, call the Westside Fair Housing Council at (310) 477-9260.