This article addresses the resolution to the conflict between a tenant’s right to privacy within his rented space and the landlord’s need to access the space prior to termination or expiration of the tenancy.
Conflict with tenant’s right to privacy
Unknown to a residential landlord, a tenant changes the locks on the door to his unit. Several months later, the tenant is arrested by law enforcement officers as he steps out of his apartment. The tenant is hastily escorted away, leaving on lights and his pet inside, but locking the door.
The landlord becomes aware of the tenant’s dilemma. Fearful the gas stove was also left on, he attempts, but is unable to enter with his passkey.
The landlord calls the police and asks them to witness his entry so he can inspect the apartment to make sure it is in a safe and secure condition. The landlord then enters the apartment through a window. The police are let in to observe the landlord’s conduct. They proceed to make a visual inspection of the apartment.
Unfortunately for the tenant, the police find illegal possessions in plain view casually lying around the kitchen and dining area of the apartment.
Did the landlord have the right to enter the apartment? Did he have the right to allow the police to come in?
Yes to both! The landlord had the right to enter since he reasonably believed the safety of his other tenants and the building could have been in jeopardy.
Also, the officers were present at the request of the landlord to act as an eyewitness so the tenant could not legitimately claim the landlord removed any of his possessions. [People v. Plane (1969) 274 CA2d 1]
In contrast, consider the landlord who permits the police to enter and search a tenant’s garage at the request of the police, but without a warrant. The police have reason to believe the tenant is manufacturing drugs, an illegal use of the premises and of concern to the landlord.
May a landlord collaborate and allow the police to enter a tenant’s garage?
No! The landlord has no right to possession when the tenant’s right to possession has not expired or been terminated, even though the tenant has vacated and only a day remains under a 30-day notice to vacate. Thus, the landlord has no possessory right allowing him to enter the property or let the police enter the premises since he has leased it to the tenant, even if he suspects the tenant of using the premises to commit a crime. The police must first obtain a search warrant to legally authorize them to come onto the premises occupied by the tenant when the landlord has no right to entry. [United States v. Warner (9th Cir. 1988) 843 F2d 401]
However, a landlord does have the right to allow police to enter a unit abandoned or vacated by the tenant as determined by state law rules of abandonment or surrender since the tenancy has been terminated. [United States v. Sledge (9th Cir. 1981) 650 F2d 1075]
Further, “lock-box” entry by the police in collaboration with a multiple-listing service (MLS) member to check out a crime is prohibited without a warrant. The entry violates the purpose of a listing broker’s agency and his lock-box authority. The broker may enter only to show the premises to prospective tenants who accompany him (or other authorized agents), not the police since they are not prospective tenants. [People v. Jaquez (1985) 163 CA3d 918]
Landlord’s right to enter
A landlord’s right to enter a residential or nonresidential unit during the period of the tenant’s right to occupy the premises is severely limited. The possessory rights to occupy the property have been conveyed to the tenant and are no longer held by the landlord, until a reversion of possession occurs on termination of the tenancy.
For example, a residential landlord may enter the tenant’s actual dwelling space during the lease or rental term only in limited circumstances, namely:
· in an emergency;
· to make repairs, alterations, improvements, or supply services that are either necessary or previously agreed to by the tenant;
· to complete a pre-termination inspection for deficiencies which would result in a deduction from the security deposit [See Chapter 16];
· to show the unit to prospective or actual buyers, lenders, tenants or repairmen and contractors;
· when the tenant has vacated the premises and his right to occupy terminated by surrender or abandonment; or
· under a court order allowing entry. [Calif. Civil Code §1954]
Notice of entry for repairs
Before a residential landlord proceeds with any maintenance or services which require entry into a tenant’s unit, the tenant must be given a written notice of the landlord’s intent to enter. Maintenance includes all routine or non-emergency repairs, decorations, alterations, improvements, replacements or services, whether or not agreed to by the tenant. [CC §1954; see Form 567 accompanying this chapter]
The written notice must give the tenant a reasonable period of time in which to prepare for the entry. A 24-hour notice is considered reasonable, unless extenuating circumstances known to the landlord or his property managers, such as the tenant’s vacation or business trip, indicate the tenant needs more time to actually receive the notice and prepare for the entry.
Entry during “For Sale” period
Real estate brokers who list residential or nonresidential property for sale which is occupied by a tenant, called a rental, need to inform the seller about the seller’s right to coordinate inspections of the property by buyers under one of two notice procedures. [CC §1954]
To avoid surprises when the tenant is contacted and advised to prepare the premises for an inspection by a prospective buyer, two procedures exist for the listing agent to enter the unit with the buyer.
A 24-hour advance written notice of the intended entry may be served by the seller or his manager:
· on the tenant personally; or
· on an occupant of the unit of suitable age and ability to inform the tenant of the notice; or
· by posting the notice on or near the entrance to the unit or leaving it under the door. [CC §1954(d)(1)]
If instead it is mailed by regular or certified mail, six days must pass before the time for entry can occur. [CC §1954; see first tuesday Form 567]
The seller’s alternative to the 24-hour written notice is a 120-day “For Sale” notice. The “For Sale” notice may be given to the tenant personally or by regular mail at any time after the seller enters into a listing to sell the property. [CC §1954(d)(2); see Form 116 accompanying this chapter]
The “For Sale” notice commences a 120-day period during which the seller or the seller’s listing agent may, on a 24- hour notice by phone to the tenant, enter the unit during normal business hours with a prospective or actual buyer to conduct an inspection of the unit.
Prior to the time for entry, the tenant must receive no less than 24 hours advance notice by phone or in person of the actual entry date and time. The actual entry is conditioned on the listing agent leaving a written note in the unit regarding the entry and completion of the inspection.
Here, the giving of the 24-hour notice by phone, during the 120-day period following service of the written “For Sale” notice, is exclusively the right of the seller and his listing agent. The agent representing a buyer must arrange for the listing agent to give the 24-hour advance telephonic notice. The buyer’s agent may not be given authority to notify the tenant, unless he is also the listing agent.
Thus, on taking a listing to sell property occupied by tenants, the listing agent needs to inform the seller of the two notice procedures for entry to present the unit to prospective buyers or buyers under contract. Once resolved as to which notice procedure, if any, the seller is willing to authorize in the listing agreement, the information is shared with buyer’s agents through the MLS publication of information on the listed property under “showing instructions,” such as “call the listing office (LO) or listing agent (LA) to arrange for 24- hour telephonic (or alternative written) notice of entry.”
The purpose of the advance notice of entry is to eliminate the element of surprise which would leave the tenant unprepared to ready the unit for inspection and to deal with the inspection on a later 24-hour telephonic notice.
Once informed of the procedure for entry and inspection, some sellers may restrict inspections of the property to qualified buyers who have entered into a purchase agreement. Thus, sellers might not allow prospective buyers to preview the premises until they have entered into a purchase agreement and been financially qualified as capable buyers.
Sellers often do not feel tenants should be involved in the marketing process. The weaker the real estate market, with its lessened likelihood of a sale and abundance of units for rent, the greater the seller’s concern will be to keep the tenant uninvolved until the agents have a buyer under contract who is ready to conduct his due diligence investigation before closing escrow.