<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by CuriousInCalifornia:
I recently entered into a verbal agreement with a boyfriend's friend who wanted to move in to our extra room. The agreement was that since she couldn't get on the lease agreement, she would stay until the end of the lease agreement.
2 months into the situation and she feels it is not working out at all, and she wants to leave. She gave her 30 day notice, which is up on the 7th of April. However, she still owes the remaining rent up to the 7th and some money for utilities totalling $149. However, we have not heard or seen her for almost 2 weeks.
Would it be reasonable to assume that we could get a locksmith to open her door (she put an actuall key lock on her room door) after the 7th and use whatever property inside to fulfill the debt owed to us? If so, does she give up the right to access any property after a certain time?
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My response:
It's a good thing that you wrote, which shows that you knew that there was "something" you had to do under the law, but didn't exactly know what to do. For that, you are to be commended. Most persons would merely take the law into their own hands and do with the premises and the property as they wish. Now, in order for you to remain "lawful" in these circumstances, there are certain procedures, as a landlord, that you must follow. You aren't going to like the procedures in this matter, because the procedures are tedious and time consuming, but nonetheless must be followed.
Okay, so now you have three problems - - one concerning entry into the room, and next, what to do with the property you presume to be within the room, and finally, how to deal with a former tenant whose whereabouts are unknown. Here, now, are the laws and procedures for you to read, understand, and follow, that are required under California law:
ENTRY INTO PREMISES:
Circumstances Under Which Residential Landlord May Enter: A landlord may enter a tenant's "dwelling unit" during the tenancy term only for the following reasons:
1. Emergencies: In case of emergency. [Ca Civil § 1954(a); see, e.g., People v. Plane (1969) 274 Cal.App.2d 1, 3, 78 Cal.Rptr. 528, 530--landlord's right of entry to ensure building's safety upheld, where tenant arrested unexpectedly and left unit with reasonable possibility of a lighted stove]
2. Showing to new tenants: To show the unit to prospective or actual new tenants, purchasers, mortgagees, workers or contractors. [Ca Civil § 1954(b)]
3. Repairs: To make necessary or agreed-upon repairs, decorations, alterations or improvements. [Ca Civil § 1954(b)] But, absent agreement, this does not include a right of entry to make extensive alterations that would unreasonably interfere with the tenant's possession. [Dwyer v. Carroll (1890) 86 Cal. 298, 24 P 1015]
4. Services: To supply necessary or agreed-upon services. [Ca Civil § 1954(b)]
5. Waterbed inspection: To inspect for waterbed violations. (Subject to the Ca Civil § 1954 notice requirements, below, if the tenant is setting up a waterbed in the unit, the landlord has the right to inspect the bedding upon installation, and periodically thereafter, to insure its conformity with the requirements of Ca Civil § 1940.5) [Ca Civil § 1940.5(f)]
6. Abandonment or surrender: When the tenant has abandoned or surrendered the premises. [Ca Civil § 1954(c)]
7. Court order: Pursuant to court order. [Ca Civil § 1954(d)]
8. By agreement: The landlord's right to enter for any other reason, without a court order, may only be pursuant to agreement with the tenant.
It would appear, under your fact situation, that number 6 might be your choice.
Time of Entry: Except in emergencies or when the tenant has abandoned or surrendered the unit, the landlord may enter (again, strictly for one of the above purposes) only during normal business hours unless the tenant consents at time of the entry. [Ca Civil § 1954]
(Presumably, a court may prescribe a different (non-business hours) time--i.e., when the entry is pursuant to court order under § 1954(d); but the statute does not expressly so state.)
Notice of Entry: In addition, the landlord must give the tenant "reasonable notice" of intent to enter, except in emergencies or when the tenant has abandoned or surrendered, or unless it is "impracticable" to give reasonable notice. [Ca Civil § 1954]
Twenty-four hours' advance notice is presumed "reasonable" absent evidence to the contrary. [Ca Civil § 1954]
ABANDONED PROPERTY:
DISPOSITION OF PERSONAL PROPERTY IN VACATED UNITS
Statutory procedures for lawful disposition of property left behind: When a tenancy terminates (whether voluntarily or involuntarily), the evicted, abandoning or otherwise vacating tenants are bound to remove their personal property. Whatever they leave behind may be removed by the landlord and disposed of under prescribed statutory steps.
The landlord has three possible (nonexclusive) statutory options:
a. Apparently "lost" property: If it appears that property left behind is lost, the landlord may dispose of it pursuant to Ca Civil § 2080 et seq. (Ca Civ Pro §§ 715.030, 1174(e));
OR
b. Apparently "abandoned" property: If it appears that property left behind has been abandoned, the landlord may dispose of it pursuant to Ca Civil § 1980 et seq. (Ca Civ Pro §§ 715.030, 1174(f)-(m));
OR
c. Property as to which tenant has requested return: If the vacating tenant timely requested return of the property, the landlord may surrender it pursuant to Ca Civil § 1965 (Ca Civ Pro § 1174(f),(h)).
"Self-help" risks tort liability: Following the statutory procedures protects landlords from potential liability for an improper "conversion." [Ca Civil §§ 1989, 1965(d); Ca Civ Pro § 1174(e)] Resort to other "self-help" remedies to retain or dispose of property not removed by vacating tenants exposes landlords to significant damages liability. [See Ca Civil §§ 1981(e), 1965(e); Gruber v. Pacific States Sav. & Loan Co. (1939) 13 Cal.2d 144, 149-150, 88 P.2d 137, 140; Love v. Keays (1971) 6 Cal.3d 339, 344-345, 98 Cal.Rptr. 811, 814; Gray v. Whitmore (1971) 17 Cal.App.3d 1, 26-27, 94 Cal.Rptr. 904, 919; see also Gonzales v. Personal Storage, Inc. (1997) 56 Cal.App.4th 464, 477, 65 Cal.Rptr.2d 473, 481--emotional distress damages awardable for conversion of personal property]
"Reasonable belief" standard: Both the "lost" and "abandoned" property statutes require the landlord to take various steps based on his or her "reasonable belief" about the identity of the lawful property owner (or owners). "Reasonable belief" in this context has a uniform definition:
The landlord is held to the actual knowledge or belief that a "prudent person" would have under the facts then known. The landlord need not make an investigation (whether by searching public records or otherwise) to determine who the owner is unless (1) he or she has specific information indicating that such investigation would "more probably than not reveal pertinent information" and (2) the cost of an investigation would be "reasonable in relation to the probable value" of the personal property involved; but if an investigation would be required under this standard, the landlord will be held to the actual knowledge or belief that a "prudent person" would have following such investigation. [See Ca Civil § 1980(d); Ca Civ Pro § 1174(m)]
Apparently "Abandoned" Property: To dispose of apparently "abandoned" personal property without risk of liability to the owner, the landlord must follow the procedures set forth in Ca Civil § 1980 et seq. (where tenant vacates other than by writ under unlawful detainer judgment) or Ca Civ Pro § 1174(f)-(m) (where tenant vacates under writ of possession following unlawful detainer judgment) . . . unless the Ca Civil § 1965 procedure for surrender of property upon tenant request has been initiated or completed.
Property eligible for disposition as "abandoned": These statutory procedures apply to person
