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Kimball, Tirey & St. John LLP

Fair Housing Questions & Answers

Lynn Dover, Esq.

April, 2019

Question: How many protected classes are there in California?

Answer: In addition to the seven federal protected classes (race, color, religion, national origin, sex, familial status and disability) California has thirteen protected classes, some of which are unique to California. They are: marital status, age, ancestry, sexual orientation, source of income, medical condition, gender, gender identity, gender expression, genetic information, citizenship, immigration status and primary language spoken. California also prohibits discrimination based on the perception that someone is from a protected class or is associated with someone from a protected class. Finally, it prohibits discrimination on any arbitrary basis.

Question: What is a request for a reasonable accommodation?

Answer: A reasonable accommodation is a change or exception to the property’s rules, policies, practices or services that is necessary to afford a person with a disability full and equal use and enjoyment of the rental property.

Questions: What are some examples of a reasonable accommodation?

Answer: Common examples are allowing a resident to have an assistive animal, reserving a special parking space for a resident, allowing a resident who need to move due to a disability to terminate a lease without further obligation for rent, or modifying a rent due date to coincide with the receipt of disability payments.

Question: What is a request for a reasonable modification?

Answer: A reasonable modification is a physical change to the apartment of the common areas that is necessary to afford a resident with a disability full and equal use and enjoyment of the rental property.

Question: Who Pays for a reasonable modification?

Answer: Modifications are usually all the resident’s expense unless the property receives federal financial assistance in which case the landlord must make and pay for the modifications. The other exception is that if a newer property (built for first occupancy 3/31/91 or later) wasn’t built in compliance with accessibility laws in place at the time of construction, the landlord must pay to make it accessible.

Question: What is an assistive animal?

Answer: According to HUD, an assistive animal “is an animal that works, provides assistance or performs tasks for the benefit of a person with a disability, or provides emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Assistive animals perform many disability-related functions, including but not limited to, guiding individuals who are blind or have low vision, alerting individuals who are deaf or hard of hearing to sounds, providing protection or rescue assistance, pulling a wheelchair, fetching items, alerting persons to impending seizures or providing emotional support to persons with disabilities who have a disability-related need for such support.”

Questions: Can I require a tenant pay a deposit for their assistive animal?

Answer: No. It is unlawful to condition the granting of a reasonable accommodation, such as allowing a resident to have an assistive animal, on that person paying a fee or deposit. However, the resident can still be held liable for any damage to the unit above ordinary wear and tear that is caused by the animal and those damages can be taken out of the regular security deposit that the resident paid for the unit.

Question: A tenant wants to move in with a companion dog. Our property only allows cats as pets. Can I tell the tenant to get a companion cat instead?

Answer: No. You cannot apply pet restrictions to assistive animals. An assistive animal that best meets his/her disability-related needs.

Questions: I just received a Notice of Filing of Discrimination Complaint from the California Department of Fair Employment and Housing. What do I do?

Answer: You only have 20 days to respond to a fair housing complaint from either HUD or the DFEH. If you do not respond to the complaint in that time frame the agency will proceed with the case without your input which could result in a finding of discrimination against you. You should contact our office right away and also notify your insurance company of the complaint.

Question: Someone told me that a guest of a resident can file a fair housing complaint, is that true?

Answer: Yes. Guests have standing to bring a fair housing complaint or a lawsuit if the guest receives discriminatory treatment while visiting a resident at your property. A common example would be refusing to allow a guest to bring his assistive animal with him when he visits your resident at the property.

Question: An applicant came into my office and is clearly pregnant. Do I count the baby to determine whether her household meets our occupancy standards?

Answer: No. You should not count the baby until it is born. You should also have a reasonable policy about what happens when the addition of a minor to the household during the tenancy puts the household over occupancy. A suggested policy would be that the household gets to stay through the end of their lease or a certain number of months, whichever is longer. We recommend that the number be a minimum of six months, buy you may want to consider a longer period of time in order to help ensure that an enforcing agency would find the time period to be reasonable.

Question: What is the difference between ADA and fair housing laws? Does the ADA apply to my property?

Answer: The ADA (Americans With Disabilities Act) applies to the places of public accommodation. Fair housing laws apply to private residential rental housing (and housing sales). Only the areas of your property that are open for the public to come and do business with you are covered by the ADA, such as your rental office.




September Q & A

1. Question:
I have a two bedroom apartment rented to two roommates. One roommate always pays the rent on time. The other roommate is habitually late. Can I do an eviction based on a partial payment even though the month is not over?
Both tenants are responsible for the entire amount of the rent so long as they are on the same rental agreement/lease. You should serve a three-day notice to pay rent or quit for the balance of the rent and name both roommates. If they do not comply, commence an unlawful detainer action naming both. 
How much can I raise the rent legally?
2. Answer:
Unless you are under rent control or a state or federal subsidy program, there are no limitations on the amount of rent you charge. You cannot unilaterally increase the rent unless your agreement is month-to-month. In that event, you can serve a written 30-day notice (or 60-day if the increase is greater than 10% within the last 12 months) to increase the rent. Otherwise, you must wait until the lease expires.
3. Question:
How can we determine if the roaches in the apartment were the result of bad housekeeping? Is it our responsibility to get rid of the roaches?
Ask your pest control professional to give his or her opinion on how the roaches came into the apartment unit. The court will rely heavily on expert testimony in these cases. If you can prove the tenant was responsible for the infestation, they are responsible for the cost of removal.
4. Question:
If our tenant sublets, and the sublessee defaults in the rent, do I give a notice to the tenant or the sublessee?
You can serve each one a notice with both of their names on it. They should be evicted in the same action.
5. Question:
What should I do if I suspect drugs are being sold out of one of our apartments?
Call the police and report the incident. Ask the police for any further direction. Document all of the calls and what you said, did and observed. Finally, contact an attorney to determine whether or not you have enough evidence to proceed with an eviction.
If a tenant does not give a 30-day notice of intent to vacate, can the full security deposit be kept by the landlord?
You can only deduct for any unpaid rent up to 30 days from the date the tenant vacated if the tenancy is month-to-month or until the premises are relet, whichever occurs first. 
7. Question:
I have signed a lease for one year with a tenant and now he wants to leave after four months. What is my recourse?
The tenant is responsible for the rent up to the date the lease expires or the date that you re-lease the property, whichever occurs first. You must use due diligence in trying to re-lease the premises.
8. Question:
We served a 60-day notice of termination of tenancy on a renter. We have not received a rent payment yet, so we served her a 3-day notice to pay rent or quit. Do you recommend that we start eviction proceedings now or do we wait until the notice expires?
You should proceed immediately with the eviction; if they do not have enough money to pay you, they may not have enough to move out voluntarily.
9. Question:
A couple moved into our rental unit one month ago. Since they moved in, we have received eight complaints from the neighbors, who are now at the point of wanting to vacate because of these complaints. What should I do?
If the disturbances are major and continuous, the court may grant an eviction based upon a 3-day notice to quit, but the disturbances to the quiet enjoyment of the neighboring property must be severe, and there must be witnesses to prove your case in court if the case is contested.
10. Question:
If you state in the month-to-month contract that rent is due on the 1st of each month, but there is not a late charge until after the 10th, can the resident pay every month on the 10th?
The rent is delinquent the day after the rent is due. Provided that the day the rent was due was a business day, a 3-day notice to pay rent or quit can be served the next day, even though the late charge is not yet due.
11. Question:
I have a prospective tenant whose company will pay his rent as a perk to his job. Who must sign the lease?
It is our strong advice to have both the company and the individual sign the lease. If the employment is terminated you would have a stranger in your unit without a signed lease.
12. Question:
If a guest causes problems or damages the property, what is my recourse?
The tenant is responsible to pay for the repair of any damage caused by their guest’s negligence or intentional act. If they fail to pay a 3-day notice to perform conditions and covenants or quit can be served, followed by an eviction.
13. Question:
If someone owes late charges and NSF check charges, do I give them a 3-day notice to pay rent?
The 3-day notice to pay rent or quit should only include rent – no late charges. A separate notice to perform covenant for late charges can be served at the same time as the notice to pay rent is served.
14. Question:
One of our tenants is moving out in three weeks. She has refused to allow any prospective tenants to see the apartment. Is there any way we can force her to let us in since the law says we have the right to show it?
You can serve her with a 3-day notice to perform conditions and/or covenants or quit requesting that she give you reasonable dates and times for entry. If she fails to comply, an unlawful detainer action can be filed.
15. Question:
Three roommates signed the lease. If one roommate pays the rent every month from his checking account, does that mean he is responsible for the rent instead of the other three roommates?
No, each resident is presumed to be “jointly and severally” liable for the breach of any of the provisions of the lease. This means they are individually, as well as collectively, responsible for all payments, including rent. Most leases state this in the body of the lease so there is no question.
16. Question:
If a rental unit is broken into and there is subsequent damage, who is responsible for the repairs?
If the damage is to the rental property as opposed to the tenant’s personal items, the tenant could be held responsible if the landlord could prove the tenant was negligent for instance by leaving their doors or windows unlocked. Otherwise, the landlord would likely be responsible to fix the repair, but would not be responsible for the tenant’s personal items.
All Q and A provided by Kimball, Tirey, and St.John

Landlord/Tenant Questions & Answers

Ted Kimball, Esq.

September, 2018