The Move-In / Move-Out Process

Franco Simone, Esq.

3702 4th Ave.

San Diego, CA 92103

(619) 235-6180 Telephone

(619) 235-6392 Facsimile

Advertising Vacant Units:

• The California Fair Employment and Housing Act(FEHA) prohibits advertising that discriminates on thebasis of race, color, religion, sex, sexual orientation,national origin, source of income, ancestry, maritalstatus, familial status, or disability. Govt C §§12926(p),12955(c).

• Advertising for housing limited to persons of one sexto share living areas in a single dwelling unit is exemptfrom the prohibitions of Govt C §12955(c).

Written Rental Applications• What NOT to Ask: It is illegal for the Landlord to ask

Tenant questions about race, color, religion, sex, sexualorientation, marital status, national origin, ancestry,familial status, source of income, disability, age, medicalcondition or whether you have persons under the age of18 living in your household.

Exceptions: 1. LL can limit the number of persons per unit. 2. Section 8

• LL can charge up to $46.99* in an Application fee toapply to actual out of pocket costs

*this amount changes yearly

Saying No to an Applicant

• Do not need to give a reason,

BUT if the applicant is rejected because of information in the credit report, LL MUST immediately send to the applicant:

• 1) The name, address, and telephone number of the credit reporting agency;

• 2) A statement that the decision to reject the applicant was based wholly or partially on information in the credit report; and

• 3) a statement that the applicant has a right to obtain, within 60 days, a free copy of the credit report from the agency and the right to dispute the accuracy of the information.

Move-in Inspection

• Before signing a Rental Agreement or collecting any rent or security deposit, DO A MOVE-IN INSPECTION!!!!

1) Use a written Inspection Checklist

• It protects you in case of an eviction

• If you can, take pictures of the unit

• Make sure LL repairs any items in need of repair

Security Deposit• BASIC RULES:

• Unfurnished Rental Unit

• An amount up to 2 Months’ rent (Waterbed 2.5 times)

• Furnished Rental Unit

• An amount up to 3 Months’ rent (Waterbed 3.5 times)

• MUST BE REFUNDABLE - except for Application Screening Fee

• IF APPLICANT WANTS TO LEAVE A DEPOSIT, SIGN A DEPOSIT RECEIPT AND OFFER TO RENT OR LEASE

MOVING OUTA. Give Proper NoticeB. Initial Inspection Before Tenant Moves-Out

1. Exceptions2. Tenant’s Right to Request Initial Move-Out

Inspection- Sample Form 3. Scheduling the Inspection4. The Inspection 5. Final Inspection

C. Refund of Security Deposit1. Common Problems to Avoid2. Failing to Follow Accounting Procedures3. Applying Proper Charges 4. Prior Damage or Unclean Unit5. “Normal Wear and Tear”6. Security Deposit Accounting7. Accounting Receipts and Invoices

D. Storing The Tenant’s Possessions1. After an Eviction2. Not After an Eviction

Give Proper Notice

• Landlord must give proper Notice before he/she can move tenant out.

• 30/60/90 Day Notice – Month to Month Agreements

OR

• 3-Day Notice for Failure to Pay Rent, Nuisance, etc.

• NO NOTICE REQUIRED FOR AN EXPIRED FIXED TERM LEASE *unless your Lease requires notice

• Death of Tenant Terminates Mo/Mo agreement after 30 days, but not with a lease.

Initial Inspection Before Tenant Moves Out• Landlord MUST offer in writing to do pre-move out

inspection within two weeks prior to move-out

• Inspection provides Tenant the opportunity to clean and repair premises so that Security Deposit is returned.

• Exceptions:

1. LL cannot do an inspection UNLESS tenant requests it

2. LL NOT required to do inspection if LL served tenant with 3-day Notice to Pay Rent, Perform Covenant, Waste, Nuisance, or Illegal Use.

Tenant’s Right To An Inspection Notice

• LL must give Tenant written notice to Tenant within a “Reasonable Time” after Notice to terminate tenancy.

• Leases require Inspection Notice to be given within reasonable time before lease expires.

• See Right to Request Initial Move-Out Inspection Form

Scheduling the Inspection

• IF tenant requests Initial Inspection

AND

• LL did NOT serve tenant with a 3-Day Notice

THEN SET AN INSPECTION DATE WITH TENANT

• Date MUST be within 2 weeks of Move Out AND

LL MUST GIVE 48 hours Notice to Tenant prior to inspection (48 hours may be waived in writing)

The Inspection

• Tenant need not be present. • Use Initial Move Out Inspection Record. • Leave copy of Move-Out Inspection Record

& Move-Out Inspection Statement with Tenant or in unit if Tenant not present.

• Only put items on checklist that did notexist prior to tenancy and are beyondnormal wear and tear.

• Tenant has right to clean and repair items on the list.

FINAL INSPECTION

• May be conducted after tenant moves out.

• LL can deduct from security deposit to repair or correct a condition:

1. That was on initial inspection and not corrected

2. That occurred after initial inspection

3. That was not found during the initial inspection due to the tenant's possessions.

Refund of Security Deposits

• Most common disagreement between LLs and Tenants

• Common Problems to avoid:

1. Deducting improper charges.

2. Deducting for items that existed prior to tenancy.

3. Charging for normal wear and tear.

4. Failing to pro-rate damage

5. Failing to give Deposit Accounting to Tenant within 21 days of move-out

Failing To Follow Accounting Procedure

• LL may be sued in Court.

• The Court may award Tenant the full Security Deposit plus twice that amount as a penalty. (Treble damages for “Bad Faith”)

• LL will have the burden of proof that he/she timely mailed/delivered the Accounting to Tenant and that the deductions were “reasonable”.

Applying Proper Charges to the Security Deposit

1. Unpaid Rent;

2. Repair of damages to the premises, exclusive of ordinary wear and tear, caused by the tenant or the tenant's guest or licensee;

3. Cleaning of the premises on termination of the tenancy; and

4. Remedying tenant defaults, which were specifically identified in the rental agreement as deductible from the security deposit.

Prior Damage or Unclean Unit

• LL may NOT deduct for damage that existed prior to tenancy.

• This includes missing items or damaged items.

• Tenant required to leave unit as “clean as it was when the tenant moved in”

“Normal Wear and Tear”

• Meaning is Very Vague-But includes some type of

pro-ration ( The “Useful Life Rule”)

• For Carpets and Drapes - simple wearing down including moderate dirt or spotting.

• Does NOT include large rips or large stains. Useful life of drapes/Carpets 5-8 years.

• For Repainting walls - Normal wear and tear includes small nicks, a few small holes, some dirt; BUT not large holes, writing on walls etc. Useful life 2-3 years.

Security Deposit Accounting

• Must be mailed or personally delivered within 21 days.• Exceptions:

1. No Accounting required if returning full deposit

2. Good faith estimate OK

a. if repair cannot be completed in 21 days, or

b. Services or materials by vendor and LL will not have invoice within 21 days.

c. Must give final Accounting w/in 14 days of completion of repair/receipt of invoice

Accounting Receipts and Invoices

• Accounting NEED NOT include copies of receipts/invoices

IF the amount deducted:

1. Is less than $125

OR

2. The tenants waived their right to receive them in writing

Storing the Tenant’s Possessions

• What do I do if the Tenant is evicted but left his belongings?

• LL must wait 15 days then,

1) if items less than $700 LL may dispose of the items.

2) If items are more than $700, LL must sell items at public sale

• Can charge a “reasonable storage fee”

• LL can move the items to another storage space

• No Notice required.

Storing the Tenants Possessions Part II

• What do I do if the Tenant has moved-out but left his belongings?

1. Serve Tenant a Notice of Right to Reclaim Abandoned Property

2. Wait 15 or 18 days (Personally/Post & Mailed Notice)

3. If value is less than $700 dispose at will; if greater than $700 sell at public sale

Final Tips on Stored Items

• Take pictures of the items.

• Take a detailed inventory of the items.

Questions