The Other Side

The Unnecessary Conflict in Landlord Entries
by J. Wallace Oman

Entries by landlords into tenants’ homes are often fraught with suspicion, tension and hostility. This article discusses the law that regulates landlord entries, illuminates the problems that surround it, and discusses approaches that tenants take to deal with landlords, and their agents, who abuse it. Situations in which tenants unreasonably deny access to a landlord are beyond the scope of this article, although such noncooperative misbehavior certainly occurs with some frequency.

Landlords often have difficulty understanding that, legally, they have no inherent right to enter an apartment during the term for any purpose. Under old common-law doctrines, when the parties enter into a rental agreement, the landlord grants a right of “exclusive possession” to the tenant against everyone, including the property owner. The landlord additionally promises the tenant “quiet enjoyment”; the term guarantees that the landlord will not permit or do anything that interferes with the tenant’s peace and quiet in the rental unit.

These two doctrines protect tenants from legal or physical acts that disturb their peaceful habitation. Quite simply, a tenant can “bar the door” to illegal entries, an act that creates fertile ground for dispute and litigation.

California Civil Code §1954 affords landlords limited rights of entry so long as they do not cause a disturbance of the tenants’ quiet enjoyment or exclusive possession. Broadly speaking, it permits a landlord to enter during ordinary business hours to perform necessary repairs or show the apartment to prospective renters, lenders and property buyers. Unfortunately, major problems frequently arise when a landlord attempts to utilize those limited rights.

Tenants can sue landlords who violate their rights. In addition to common-law rights afforded tenants, Civil Code §1954 itself prohibits entry for the purpose of “harassment.” Further, Civil Code §1940.2(a) prohibits a landlord from influencing a tenant to vacate by certain prohibited acts, including intentional, significant violations of entry rights. Each violation carries a monetary penalty of $2,000 in addition to anything else the tenant might recover.

Ambiguities in the Code
Unfortunately, Civil Code §1954 has several significant gaps and ambiguities. For example, the statute fails to define certain key terms such as “normal business hours,” “landlord’s agent” and “necessary repairs.” As a result, disputes arise.

Many tenant lawyers take the position that normal business hours are limited to Monday through Friday, 9 a.m. to 5 p.m., while many landlords have defined the term as Monday through Friday, 9 a.m. to 6 p.m. and Saturday, 9 a.m. to 1 p.m. or longer.

Similarly, entry disputes would be reduced if the statute defined the term “landlord’s agent.” The term presumably includes any property manager, real-estate broker or broker’s employee, building contractor or other person working for a landlord. However, the statute only expressly speaks of “landlord” entry, not entry by a “landlord’s agent,” so some tenant attorneys take the position that only the landlord may enter or that the landlord’s agents cannot enter by themselves.

 Another ambiguity in the statute involves “necessary” repairs and services. While Civil Code §1954 allows landlord entry to make “necessary or agreed repairs” and to supply “necessary or agreed services,” it fails to define the terms. Repairs and services performed to cure habitability and tenantability defects are necessary, but other purported repairs and services raise questions if the repairs are aesthetic or the entry is solely to inspect for repairs. In some cases tenants are attempting to conceal their violations of the rental agreement, but in other cases tenants legitimately fear harassment by their landlords.

Disputes over Real-Estate Sales
Real-estate marketing and sales procedures also frequently cause landlord-tenant disputes. A large problem occurs when the landlord seeks entry on weekends or in the evenings for a real-estate broker or salesperson to hold an open house for prospective buyers. Here the tenant’s strong desire for privacy on weekends and in the evenings directly clashes with well-established real-estate sales practices occurring on weekends. Significantly, the statute’s listed and expressly permitted purposes for entry do not include open houses for brokers, so tenants can lawfully refuse entry for this purpose.

To attempt to deal with this problem, many experienced real-estate agents recommend to landlords that they offer discounted rent to tenants who are inconvenienced by night and weekend entries. But this type of compromise may never happen if the tenant fears that, once the building is sold, the new owner will attempt to evict the tenant, substantially raise the rent or take some other action hostile to the tenancy. In this case, not even a large financial inducement would persuade the tenant to cooperate with the real-estate agent.

Many entry disputes could be avoided if the statute were amended to declare specified tenant and landlord rights. However, until that happens, landlords and tenants can reach private accommodations to meet each other’s needs. They utilize common-sense techniques, such as telephone conversations, to work out mutually convenient schedules preceding formal notices and to utilize tentatively reserved time windows (like, Mondays, Wednesdays and Fridays from 9 a.m. to noon in February 2006), which the landlord or real-estate agent can formally reserve with written notices.

When clients come to me with an undesired notice of entry, my advice to them depends to a considerable extent upon my assessment of the likelihood of bad behavior by the landlord. When my clients and I fear abusive entry by the landlord and the landlord’s agents, we will often impose some or all of the ground rules for entry (which are listed below) if we cannot work out a mutually convenient entry agreement with the landlord and the landlord’s attorney. Following are a few of the possible resolutions to disputes.

* ● The landlord must give the tenant and attorney written notice at least 24 hours in advance (depending upon the situation, it may be reasonable to require the landlord to give much more than 24-hours’ advance notice) of the identity of each prospective entrant along with the dates and times proposed for entry (usually within a 2-hour entry-window period). A landlord may be requested or required to propose several possible dates and times for entry.

* ● The tenant or tenant’s attorney must approve each such entry in writing in advance (generally by email or fax) or else entry will not be permitted.

* ● At the time of entry, each prospective entrant who is not already known by the tenant must present photographic identification at the door before being allowed entry into the tenant’s unit. An entrant who has a business card that states any professional license number will generally be sufficient.

* ● Prospective entrants must log their entries by filling in the following information on a sign-in sheet, which will be provided by the tenant at the door: date, time of entry, name, purpose of entry and time of exit.

* ● The landlord must be present and must accompany the entrant throughout the entry. There shall be no more than two entrants at a time in the unit. Each entrant will be escorted continuously by the tenant or by an agent of the tenant, from room to room. No entrant may enter a room without escort. The entrants must keep together and may not disperse.

* ● No questions about the tenancy or about the condition of the property may be addressed to the tenant or the tenant’s agents. The tenant, of course, will answer questions related solely to the logistics of the inspection such as, “May I enter this room?”

* ● No entrant, including a landlord, may open any drawer, closet, cabinet or other contained space without making a specific request to the escort and without receiving specific prior permission from the escort to do so.

* ● Every tenant is entitled to record by video or audio, or with witnesses, what occurs in the unit during the entry. Such recording deters misconduct by anyone (here, the tenant’s concern is with the landlord and the landlord’s agents, of course) and preserves evidence for a court or the police should it be necessary. Such recording also protects the landlord and the landlord’s agents as well.

* ● If any personal property belonging to the tenant is damaged or stolen during the entry, the landlord shall be liable for such loss.

In conclusion, although it is not possible for some types of landlord entries to occur without ill will, many entries can be made without rancor if the landlords and tenants follow the reasonable procedures outlined here, and are cooperative and mutually respectful of each other’s different needs.

The opinions expressed in this article [February 2006] are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. J. Wallace Oman is a San Francisco attorney specializing in tenant representation. He is a co-author of California Eviction Defense Manual, 2nd ed.

Copyright © 2006 by J. Wallace Oman and San Francisco Apartment Magazine. All rights reserved.  Reprinted courtesy of J. Wallace Oman and of San Francisco Apartment Magazine.