This article addresses resolutions to conflicts between a tenant’s right to privacy within his rented space and the landlord’s need to access the space.
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. He leaves the light on and his pet inside, but locks 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 to witness the entry to make sure the apartment 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 check out the apartment.
Unfortunately for the tenant, the police find illegal possessions in plain view casually lying around the apartment.
Did the landlord have the right to enter the apartment?
And did he have the right to allow the police to come in?
Yes to both! The landlord had the right to enter. The landlord reasonably believed the safety of his other tenants and the building might have been in jeopardy.
Also, the officer was present at the landlord’s request 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 search a tenant’s garage at the request of the police, but without a warrant. The police suspect the tenant is manufacturing drugs.
May a landlord consent and allow the police to enter a tenant’s garage?
No! The landlord has no right to possession while the premises is occupied by the tenant. Thus, the landlord has no possessory right which allows him to let the police enter the premises once he has leased it to the tenant, even if he suspects the tenant of committing a crime. The police must first obtain a search warrant to legally authorize them to come onto the premises occupied by the tenant. [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 by the tenant under state law rules of abandonment or surrender. [United States v. Sledge (9th Cir. 1981) 650 F2d 1075]
Also, “lock-box” entry by the police with the assistance of 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 to the police. The police 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 occupancy is severely limited since the possessory rights to the property have been conveyed to the tenant and are no longer held by the landlord until reversion.
For instance, 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 which are either necessary or previously agreed to by the tenant;
to complete a pre-termination inspection for deficiencies which may possibly be deducted from the security deposit;
to show the unit to prospective or actual buyers, lenders, tenants or repairmen and contractors;
when the tenant has vacated the premises by surrender or abandonment ; or
under a court order allowing entry. [Calif. Civil Code §1954]
A property manager’s entry into a tenant’s unit out of concern for the safety of the property or his other tenants constitutes an emergency allowing entry without the tenant’s knowledge and permission. The property manager may properly enter the unit for the limited purpose of dealing with the emergency. [Plane, supra]
Consider a nonresidential real estate lease which prohibits any tenant violations of government laws and regulations.
The landlord asks the tenant for permission to come onto the property to investigate whether the leased property contains any contamination from hazardous waste.
The tenant refuses to give the landlord permission to conduct the investigation, claiming the landlord does not have a right to determine whether contamination exists until the lease expires.
However, the landlord has the right to determine if contamination is occurring on the property since hazardous waste contamination is a violation of the law and is a breach of the lease provision prohibiting unlawful activities on the property. [Sachs v. Exxon Company, U.S.A. (1992) 9 CA4th 1491]
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]
The written notice of the need to enter must be served on the tenant and give him a reasonable time period in which to prepare for the entry. A 24-hour notice is considered reasonable, unless extenuating circumstances indicate more time is needed to actually receive the notice or prepare for the entry.
Service of a 24-hour notice of entry in advance of the entry is accomplished by any one of the following methods:
handing a written notice to the tenant personally;
handing the notice to an occupant of the unit who appears of suitable age and discretion to relay the notice to the tenant; or
posting the notice on or near the usual entry door or under the door so it will be discovered by the tenant.
Alternatively, the notice may be mailed, but at least six days must pass after mailing before the intended entry can be scheduled to occur. [CC §1954]
The time of day for the entry must only be during normal business hours, emergencies excepted. If the entry is after business hours, the tenant’s consent must be obtained “at the time of entry,” even if previously arranged to occur after business hours.
The notice of entry procedures should never be used to harass a tenant in a retaliatory and abusive manner. [CC §1954]
A tenant in a community apartment project or a homeowner in a condominium project, collectively called common interest developments (CIDs), must receive no less than 15 days and no more than 30 days written notice when the management or association needs the occupants to vacate the project in order to treat termites. [CC §1364(d)(2)]
Entry for pre-termination inspection
A residential landlord may enter a tenant’s unit when the tenant requests a joint pre-termination inspection of the premises.
The purpose of the pre-termination inspection prior to expiration or termination of the tenancy is to advise the tenant of any deficiencies in the condition of the premises so the tenant can correct or eliminate them before vacating to avoid deductions from his security deposit.
Before the residential landlord may enter to conduct the pre-termination inspection, the tenant must be given a 48-hour written notice stating the date and time for the inspection. [CC §1950.5(f)(1)]
Service of the 48-hour notice of entry is accomplished in the same manner as for the 24-hour notice of advance entry to complete repairs.
However, the tenant may waive the 48-hour notice if both he and the landlord sign a written waiver. [CC §1950.5(f)(1)]
Entry during “For Sale” period
Real estate brokers who list property for sale which is occupied by a tenant, called a rental, need to inform the seller of the agent’s right to coordinate inspections of the property by prospective buyers under one of two notice procedures. [CC §1954]
The purpose of the advance notice of entry is to eliminate the element of surprise which leaves the tenant unprepared to deal with the inspection and to prepare the unit for exhibition on a later 24-hour notice.
Once informed of the procedure for entry and inspection, some sellers, justifiably or not, 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. Sellers often feel the tenant should remain uninvolved in the sales process. The weaker the sales market, with its lessened likelihood of a sale, the greater the seller’s concern will be to keep the tenant uninvolved until the agents have a buyer who has entered into a purchase agreement with the seller.
To avoid surprises for all when the tenant is contacted to cooperate in exhibiting the premises to the buyer or the buyer’s home inspector, two procedures exist for the listing agent to enter the unit with a buyer.
A 24-hour advance written notice of the intended entry may be served 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. If instead it is mailed by regular or certified mail, six days must pass before the time for entry can occur. [CC §1954]
The alternative to the 24-hour written notice is a 120-day “For Sale” notice which is given to the tenant personally or by regular mail during the listing period. The notice commences a 120-day period during which the landlord or the landlord’s listing agent may, on a 24-hour notice by phone, enter the unit during normal business hours with a prospective or actual buyer or the buyer’s home inspector to conduct an inspection of the unit.
At the time for entry, the tenant then receives no less than 24 hours’ advance notice by phone (or orally if in person) of the actual entry. The actual entry is conditioned on leaving a written note in the unit regarding the entry and completion of the inspection. [CC §1954]
Here, the 24-hour notice by phone given during the 120-day period following service of the written “For Sale” notice is unique to sellers and their listing agents. The selling agent representing a buyer must arrange for the listing agent to give the 24-hour advance telephonic notice. The selling agent may not be given this authority, 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 exhibit the unit. Once resolved as to which notice procedure the seller is willing to authorize, the information is shared with selling agents through the MLS printout 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 written) notice of entry.”
The selling agent should be reminded when the listing agent arranges for entry by telephone that on completion of the inspection he must leave his card or other document in the unit noting he has entered and shown the property.
Entry on surrender or abandonment
A residential landlord or his manager may enter a dwelling unit when the tenant has vacated the unit and his right to possession has been terminated by expiration of a lease, surrender, a declaration of forfeiture under a 3-day notice or a notice of abandonment.
Neither a surrender nor an abandonment of the tenant’s right to possession takes place when the tenant merely vacates the unit. The landlord must react to the tenant’s vacating to actually work a termination of the tenant’s leasehold interest to possession, and thus establish a surrender or abandonment.
By a surrender, the tenant who has breached the lease vacates the premises and conducts himself in a manner which indicates to the landlord the tenant’s desire to both:
terminate possession by a return of the premises to the landlord; and
cancel the lease or rental agreement obligations owed to the landlord.
If the landlord agrees to the termination of the tenant’s possession and a cancellation of the lease/rental agreement, or if the landlord’s conduct on taking possession constitutes his acceptance of the tenant’s offer to vacate in exchange for cancelling the lease agreement, a surrender has occurred. Thus, the tenancy is terminated (as well as the lease) and the landlord is allowed to enter and take possession of the dwelling unit (by mutual agreement).
As an alternative to accepting possession and cancelling any right to collect future rents due under the lease/rental agreement by a surrender, the landlord may serve the tenant with a 3-day notice to pay or quit and include a declaration of forfeiture in the notice. Thus, on expiration of the 3-day notice, the tenant’s right to possession has been eliminated and the landlord or his agents may enter and reoccupy or relet the premises since it is vacant. The lease agreement remains uncancelled.
An abandonment requires a breach of the lease/rental agreement and a vacating of the premises by the tenant. Like a surrender, an abandonment requires the tenant to never intend to return to the premises. Also, a tenant intending to abandon the leased premises cannot unilaterally terminate his leasehold right to possession. The transfer of possession to the landlord requires the landlord to act before the right to possession is terminated by abandonment.
However, unlike agreeing to a surrender, the lease agreement is not cancelled on the landlord’s notice of abandonment. Only the leasehold interest in the real estate is terminated.
To establish an abandonment by a tenant who has breached his lease and vacated, the landlord must serve the tenant with a notice of abandonment. On expiration of the notice without the tenant denouncing the abandonment, the tenant’s leasehold interest is automatically terminated. The landlord retains the right to collect future rents due under the unexpired (and uncancelled) lease/rental agreement.
Without proof of the termination of the tenancy by abandonment on expiration of the notice, the landlord taking possession could be faced with an angry tenant claiming forcible entry – and money damages – or a financially detrimental surrender and elimination of the lease agreement.
For example, a manager rents an apartment to a couple who are expecting a child.
The husband, needing further training for his job, moves to another county for several months. His wife stays in the apartment, intending to do so until her husband returns.
Later, the wife leaves the unit and travels to visit her husband. She posts a note on the unit’s front door. It is addressed to her brother who checks in on her from time to time. The note states her destination, but makes no mention whether she will return. A delinquency in the payment of rent does not exist.
The manager reads the note, misconstrues the meaning and re-rents the unit.
On the wife’s return she discovers new tenants living in the unit and confronts the manager.
The expectant mother is reduced to retrieving the family possessions from the storage unit where the resident manager placed them.
Shortly afterwards, the wife suffers medical complications from the physical and emotional stress of relocating.
Here, the property manager’s entry into the unit and the subsequent re-renting was unjustified. Thus, the property manager, as well as the landlord, is liable for all losses caused by the property manager’s actions. [Richardson v. Pridmore (1950) 97 CA2d 124]
Alternatives to abandonment include:
acceptance of a surrender terminating the possession and cancelling the lease/rental agreement; or
service of a 3-day notice to cure the breach (pay) or vacate which includes a declaration of forfeiture of the lease.
On expiration of the 3-day notice or the notice of abandonment, the landlord or his agents may enter and occupy or relet the premises while retaining the right to collect future rents due under the lease/rental agreement breached by the tenant.
Entry by court order
Even if a landlord has the right to possession of the premises due to a forfeiture or expiration of the lease, he may only enforce his possessory right to recover possession from the tenant who remains on the property by using legal means to evict the tenant – self-help is absolutely unacceptable.
For instance, in an unlawful detainer (UD) action, a landlord obtains a judgment against a tenant due to the tenant’s failure to promptly answer the lawsuit. Before the eviction is carried out under the court order, the court “sets aside” the judgment. The court-ordered eviction is now invalid.
However, the landlord acts on the now invalid eviction order. The landlord enlists two uniformed county marshals who, without knowing the eviction order is invalid, appear at the tenant’s door demanding the tenant vacate the unit.
The tenant leaves the unit immediately and the landlord takes possession. Later, the tenant seeks a money judgment against the landlord claiming the conduct of the landlord was a forcible entry and detainer of the premises.
The landlord claims his conduct cannot be considered a forcible entry and detainer since his method for evicting the tenant did not lie wholly outside the law. The landlord obtained a court order (although he knew it was invalid) and did not personally evict the tenant – he used law enforcement officers instead.
However, the landlord is liable for forcible entry and detainer. He evicted the tenant by relying on a judgment which he knew was no longer valid.
The landlord’s use of uniformed law officials to carry out the forcible entry and removal of the tenant does not excuse his use of a known invalid eviction order. The landlord is still using forcible self-help methods. [Bedi v. McMullan (1984) 160 CA3d 272]
Now consider a nonresidential landlord who obtains a money judgment against his tenant for unpaid rent.
A writ of possession is erroneously issued and the tenant is evicted by the sheriff.
The tenant seeks to recover possession since the money judgment did not award the landlord possession of the premises or include an eviction order.
The court refuses to order the landlord to surrender possession of the property to the tenant, but recalls the writ as having been erroneously issued.
The tenant then seeks to recover his money losses for the eviction claiming the landlord is liable for forcible entry and detainer since the landlord had him involuntarily removed under an invalid writ of possession.
The landlord claims he is not liable for forcible entry or detainer since he relied on court authorization – the writ of possession – to evict the tenant and recover and retain possession of the premises.
Here, the landlord is not liable for the tenant’s money losses since imposing liability on landlords who rely on a properly issued court order which is erroneous and later recalled, would undermine the public policy favoring orderly judicial process (instead of self-help) by opening up landlords to liability when acting under the authority of the court. [Glass v. Najafi (2000) 78 CA4th 45]
Tenant’s right to privacy
Leases and rental agreements occasionally contain a provision giving the landlord the right of re-entry for the purpose of retaking possession of the premises should the tenant breach any performance called for in the lease or rental agreement.
However, these re-entry-on-breach provisions are unenforceable. A tenant’s right to possession is a leasehold estate. A leasehold cannot be contracted away, released or waived based on the tenant’s later breach of a provision in the lease or rental agreement. To be an enforceable transfer of possession, the tenant’s possessory interest (leasehold) must be conveyed by the tenant at the time of the breach in exchange for cancellation of the lease (or some other consideration for conveyance), such as occurs under a deed-in-lieu of foreclosure. [CC §1953(a)(l)]
However, consider an owner who goes on an extended overseas vacation. He rents his home for the duration of his trip. The rental agreement acknowledges that the tenant will vacate immediately on the owner’s return.
The owner returns from his trip, but the tenant refuses to immediately relinquish possession of the house. While the tenant is at work, the owner enters the house, moves the tenant’s belongings and retakes possession of his residence.
Can the owner use self-help to dispossess the tenant?
No! The tenant’s occupancy gives him the right to exclude others, including the owner, as it does for almost all occupancies under an exclusive right to possession, such as a lease or rental agreement.
An owner, even though entitled to possession, cannot automatically re-enter when the tenant denies the owner possession.
As a landlord, the owner must first serve the occupant with a notice to vacate (unless the occupancy follows expiration of a lease) and proceed with a UD action to regain possession.
The bottom line: the tenant’s breach of the lease does not by itself work a forfeiture or conveyance of the leasehold to the landlord. Statutory notice requirements must be met to terminate a tenant’s right to possession by establishing the tenant’s unlawfully detainer of the premises (except on expiration of a lease). [Lamey v. Masciotra (1969) 273 CA2d 709]
Forcible entry by a landlord or property manager is conduct consisting of:
entry by open doors, windows or other parts of the premises without permission, prior notice, or justification ;
entry by any kind of violence or threat of terror ; or
entry by peaceable means, after which threats, force or menacing conduct is used to dispossess the tenant. [Calif. Code of Civil Procedure §1159]
Actions by a landlord, property manager or resident manager which are construed as forcible entry include:
any physical acts of force or violence;
entry through a window and removal of the tenant’s belongings in the occupant’s absence [Bank of California v. Taaffe (1888) 76 C 626];
entry under the false pretense of making an inspection and then taking over possession from the tenant [White v. Pfieffer (1913) 165 C 740];
entry by unlocking the door of the unit in the tenant’s absence [Winchester v. Becker (1906) 4 CA 382];
entry accomplished by a locksmith who opens the door during the tenant’s absence [Karp v. Margolis (1958) 159 CA2d 69]; and
entry by breaking locks. [Pickens v. Johnson (1951) 107 CA2d 778]
Tenant’s possessions as security
Some leases contain a clause purporting to give the landlord the right to take or hold the tenant’s personal property as security should the tenant default in the payment of money owed to the landlord under the lease.
For example, a tenant enters into a lease and occupies an apartment unit.
The lease provides the landlord with the right to re-enter the unit on the tenant’s default in the payment of rent and take the tenant’s personal possessions as security until the rent is paid.
The tenant fails to pay rent before it becomes delinquent. To enforce the security provision in the lease, the landlord uses his key to enter the unit in the tenant’s absence and remove the tenant’s possessions.
The landlord then refuses to allow the tenant to re-enter the unit until he is paid.
However, a landlord may not enter or interfere with a tenant’s access to the premises based on the tenant’s default on the lease, no matter how peaceably the entry is accomplished. [Jordan v. Talbot (1961) 55 C2d 597]
Forcible entry by others
Forcible entry onto the premises leased to a tenant occurs whenever anyone enters the tenant’s premises without the tenant’s present consent.
Consider a hotel operator who encumbers his interest in a hotel with a trust deed to provide security for a loan. The trust deed states the lender may appoint a trustee to take possession of the real estate and operate and manage the hotel should the hotel operator default on repayment of the loan.
The operator defaults on the loan. The lender appoints a trustee in compliance with the trust deed provision.
The trustee goes to the hotel to remove the hotel operator from the premises as agreed to in the trust deed provision.
The trustee, although not entering by force, breaks and replaces locks on the storage cabinets, raids cash registers and threatens to harm the hotel operator if he refuses to voluntarily relinquish possession of the hotel.
Is the trustee guilty of forcible entry onto the property even though the trustee was appointed under a trust deed provision agreed to by the operator and used non-violent means to enter onto the premises?
Yes! The trustee holds the same status as the secured lender and has no more right to possession than the lender. Thus, the trustee’s right to possession could only be lawfully obtained by judicial process – a receivership or foreclosure (judicial or by trustee’s sale) – against the interest in the property encumbered by the trust deed, and a UD action. [Calidino Hotel Co. of San Bernardino v. Bank of America Nat. Trust & Savings Ass’n (1939) 31 CA2d 295]
Forcible entry by the tenant
Even a tenant can be guilty of forcible entry.
Consider a prospective tenant who enters into a rental agreement without first inspecting the condition of the premises.
On inspecting the premises, the tenant discovers the physical condition of the premises is unacceptable. The tenant refuses to take possession. The tenant is not given a key or any other means of accessing the premises.
The landlord then renovates the improvements, realizing he will not be able to rent the premises until the premises is restored.
On the landlord’s completion of the renovations, the would-be tenant climbs through an open window in the landlord’s absence and takes possession of the premises.
Here, the tenant did not have authority from the landlord to occupy the premises since he refused to accept delivery of possession under the rental agreement and was not given further access to the premises. The tenant’s occupancy was gained only by his unauthorized entry, legally called forcible entry. [McNeil v. Higgins (1948) 86 CA2d 723]
Landlord as co-tenant
Consider the owner of a single-family residence who rents rooms to individuals, called roommates.
Soon, the owner spends less and less time residing on the property. However, the owner continues to maintain his mailing address at the residence.
After a week-long absence, the owner returns and discovers the locks on all the doors have been changed. He breaks a window and enters the property. The roommates claim the owner is guilty of forcible entry since he broke into the property by using force.
Did the owner’s roommates have the exclusive right to possession barring the owner from forcibly entering the property?
No! The owner was not attempting to regain possession. Rather, he was a co-occupant in actual possession of the premises at the time of entry.
The owner and his roommates had joint possession. No one roommate had been given exclusive possession as against any other roommate. As a joint possessor with the right to occupy the premises concurrently with others, the owner is not liable for forcible entry. [Bittman v. Courington (1948) 86 CA2d 213]
Losses due to wrongful dispossession
A tenant wrongfully removed from his premises by a landlord or property manager is entitled to be returned to possession of the premises, called restitution. The tenant also has additional remedies against the landlord and the property manager. [CCP §1174(a), (b)]
A tenant may recover all money losses caused by the wrongful entry by a landlord or his agent. However, the amount of money the tenant may collect is limited to losses incurred during the time period the tenant retained a legal right to possession prior to the expiration of his lease or termination of a rental agreement, but was dispossessed. [Orly v. Russell (1921) 53 CA 660]
For example, a nonresidential tenant is served a notice to vacate by the landlord to terminate his month-to-month tenancy.
Later, prior to the expiration of the notice to vacate, the tenant is barred from entry to his premises by the landlord. The tenant is unable to continue operating his business from the location of the property. The tenant’s period of occupancy expires under the notice to vacate without his regaining possession of the premises.
The tenant wants to recover for the landlord’s unlawful detention of the property and for loss of business income.
However, recovery of the tenant’s losses is limited to the net operating income (NOI) which could have been earned during the balance of the unexpired term. [Orly, supra]
Damages to the goodwill of a tenant’s business may also be considered. If the tenant has built up goodwill with the customers of his business, he may be able to use the remaining days of his final period of tenancy to advise customers of his expired lease and new location.
The landlord who forcibly enters the leased premises during the remaining period of the tenancy is liable for the tenant’s losses due to lost earning power when the tenant is deprived of transferring customers to his new location, called business goodwill. [Schuler v. Bordelon (1947) 78 CA2d 581]
A tenant whose possession has been interfered with can recover his money losses due to:
lost profits [Stillwell Hotel Co. v. Anderson (1935) 4 C2d 463];
rental value of the lost use of the premises [Stillwell Hotel Co., supra];
loss of goodwill (earning power) [Schuler, supra]; and
emotional distress caused by the landlord or property manager’s conduct towards the tenant. [Newby v. Alto Riviera Apartments (1976) 60 CA3d 288]
Also, the tenant may collect up to three times his actual money losses for the forcible entry as punishment judicially inflicted on the landlord if the landlord willfully or maliciously took possession from the tenant.
For example, a landlord seeking to collect a debt owed by his tenant ejects his tenant’s employees from the leased premises, changes the locks and refuses to allow the tenant access to records and personal property.
Here, the landlord is acting with malice and the tenant has the right to recover trebled damages. [Civic Western Corporation v. Zila Industries, Inc. (1977) 66 CA3d 1]
Additionally, a landlord or property manager using actual force or violence to enter a leased unit is guilty of a misdemeanor. [Calif. Penal Code §418]