J & N REALTY, INC.

Crime and Responsibility in Rental Housing & Homeowners Associations  

The purpose of this course is to outline some of the ways in which rental property owners and their agents can take responsibility by actively and cooperatively participating in reducing existing crime, preventing future crime, and reducing liability in their communities.  The following chapters include detailed information that will assist owners in these endeavors.  

Property managers, owners, and residents of multi-housing communities need to work together with police and government officials to keep illegal activity off their properties and out of their neighborhoods.  The reduction in the quality of a neighborhood has a devastating impact on multi-housing properties and the number and quality of residents they attract.  Criminal activity results in a decrease in property values, and chronic drug activity, vandalism, graffiti, and gang activity can reduce a formerly healthy neighborhood to a shadow of its former self.   

The professional, ethical management of quality housing is the California Apartment Association’s members’ long-held mantra.  By taking responsibility and ownership of neighborhood problems, property owners will reap the benefits of positive neighborhood change.    

While the city officials and the police force have a duty to deter crime, the neighborhood, community, property owners, and all of its citizens should partner with them in addressing the problem at its root.  Illegal activity should be reported, and the neighborhood should promote citizen responsibility to maintain properties in a manner that discourages criminal activity.   

Do not Claim You Have a Crime-free or Safe Neighborhood  

Make sure that neither you nor your staff tout the property as “crime-free”, “drug-free”, or proclaim that it is in a “safe neighborhood”.  Rather, you and they can discuss all of the safeguards you employ.  The nomenclature used in describing the property may give residents a false sense of security, such as the terms “security fencing”, or “security patrol”.  Instead, it is advisable to use terms such as “access controlled” property, “gated” property, and “courtesy patrol”.  

Owners have increasingly been held liable for crimes committed on their property.  Your claim that the property is safe or crime-free may give rise to an expectation that crime will not occur.  You can take every crime prevention measure in the world, but you cannot control the actions of other people; e.g., a resident with no criminal history may become involved in a spousal dispute leading to violent criminal acts.  (See discussion on domestic violence and restraining orders.)  

Costs of Criminal Activity in Rental Properties Include:  

1. Decline in property values as the activity affects the reputation of the neighborhood.  

2. Property damage from abuse, retaliation, or neglect.  

3. Toxic contamination and fire resulting from drug manufacturing.  

4. Civil penalties, including loss of property use, and property damage.  

5. Loss of rent during eviction and repair periods.  

6. Vacancy loss due to evictions causing other residents to vacate as well as the resident who is being evicted.  

7. Owner, employee, and resident fear and frustration when faced with dealing with dangerous residents.  

8. Increased resentment and anger between neighbors and property managers. 

Crime Prevention through Environmental          

Change Physical Environment to Affect Behavior  

Crime Prevention through Environmental Design (CPTED pronounced “sep­ted”) is a branch of situational crime prevention that has been in existence for about forty years.  Its basic premise is that the physical environment can be changed or managed to produce behavioral effects that will reduce crime and fear of crime, resulting in an improvement to the quality of life, and more profitability for business owners.  Although many CPTED tenets apply to new construction, some can be applied to older projects when they are being rehabilitated and upgraded.  Since cost is always a factor, landscaping and lighting changes can reap great rewards and are some of the most cost-effective ways to achieve great results.    

Reduce Opportunity for Crimes to Occur  

One of CPTED’s primary aims is to reduce the opportunity for specific crimes to occur.  Where CPTED differs from traditional strategies (such as a property owner’s installation of locks on doors and windows) is that the techniques include use of environmental factors to affect the perceptions of all users of a given space – addressing not only the opportunity for the crime but also perceptions of fear on the part of those who may otherwise be victims.  

Behavioral Psychology  

Drawing heavily on behavioral psychology, CPTED concepts and strategies emphasize the relationships that exist between people and their environments.  The way we react to an environment is more often than not determined by the cues we are picking up from that environment.  Those things that make normal or legitimate users of a space feel safe (such as good lighting), make abnormal or illegitimate users of the same space feel unsafe in pursuing undesirable behaviors (such as stealing from motor vehicles).   

CPTED principles are used in a wide range of contexts, from social planning to urban design, from community safety to security risk management applications.  The underlying principles can be traced back to ancient civilizations.  Even though planners are very familiar with CPTED designs, they may not fully incorporate CPTED designs that meet behavioral or functional objectives.  The by-products of this are fear, reduced productivity, and increased opportunity for crime. 

One of the best ways to maximize our safety is to adhere to the principle of "know thy neighbor.”  Streets and homes should be designed to encourage interaction between neighbors: good examples of these design elements are the front porch and property lines that are defined simply by low shrubbery instead of high fences.  In the eastern areas of the United States, it is uncommon to have fences dividing neighbors from one another, while in the western United States it is rare not to have a fence.  The western states’ philosophy of keeping people out may actually have the opposite effect, in providing screening for illegal activity.  

CPTED guidelines, when applied to subdivisions, can create a safe environment without the use of more common and conspicuous methods.  Often the safety measures taken in subdivision communities, such as high fences and video-monitored gates, can have a negative instead of positive psychological effect on residents.  Although security is increased, a prison-like atmosphere may weigh oppressively on the residents.   

CPTED guidelines include streets designed with gateway treatments, roundabouts, speed tables and other "traffic calming" devices that discourage speed and cut-through traffic.  In addition, in keeping public areas observable, you are telling potential offenders, they had better think twice before committing a crime, since their actions may be witnessed by residents and others.  

Multifamily buildings pose the same problems as single buildings, although these problems can easily be compounded by the number of dwellings and residents.  There are more public areas to consider with shared interior hallways, elevators, laundry rooms, and parking areas.  

Managing multiple dwelling buildings does not necessarily mean there will be multiple problems.  There is a certain amount of truth to the old saying; "There's safety in numbers" and with neighbors who take responsibility for each other, there is no reason why a multifamily building cannot be as safe a place to live as in any residential single-family neighborhood.  

Crime Prevention through Environmental Design (CPTED) Guidelines  

1. Natural Access Control  

• Walkways and landscaping should direct visitors to the proper entrance and away from private areas  

• Access should be limited   

• Streets should be designed to discourage cut-through traffic  

• Balcony railings should never be a solid material or more than 42 inches high  

• Entrances into parking lots should be defined by landscaping, architectural design, or monitored by a guard  

• Dead end spaces should be blocked by a fence or gate  

• Common building entrances should have locks that automatically lock when the door closes  

• Hallways should be well lit  

• No more than four apartments should share the same entrance  

• Elevators and stairwells should be centrally located  

• Access to the building should be limited to no more than two points  

2. Natural Surveillance  

• All doorways that open to the outside should be well lit – strategic lighting of entrances  

• landscaping should not create blind spots or hiding spots  

• Pedestrian scale street lighting should be used in high pedestrian traffic areas  

• Exterior doors should be visible from the street or by neighbors  

• All four facades (building sides) should have windows  

• Parking spaces should be assigned to each unit located adjacent to that unit, and not marked by unit numbers  

• Visitor parking should be designated  

• parking areas should be visible from windows and doors  

• parking areas and pedestrian walkways should be well lit  

• Recreation areas should be visible from a multitude of windows and doors  

• Dumpsters should not create blind spots or hiding areas  

• Elevators and stairwells should be clearly visible from windows and doors  

• Shrubbery should be no more than three feet high for clear visibility  

• Buildings should be sited so that the windows and doors of one unit are visible from another  

• Stairwells should be well lit and open to view; not behind solid walls  

• remove pay phones or construction porta-potties if they attract non­residents or troublemakers – crimes can be committed there unobserved.  

• All of the above are intended to create “defensible space” to increase observation by residents and managers, thereby reducing crime.  

3. Territorial Reinforcement  

• Property lines and private areas should be defined with plantings, pavement treatments, or fences  

• The street address should be clearly visible from the street with numbers a minimum of five inches high   

• all buildings and residential units should be clearly identified by street address numbers that are a minimum of five inches high, and well lit at night  

• Lots, streets, and houses should be designed to encourage interaction between neighbors  

• Entrances should be accentuated with different paving materials, changes in street elevation, architectural, and landscape design  

• Property lines should be defined with post and pillar fencing, landscaping, and gates, and plantings should direct pedestrian traffic  

• All parking spaces should be assigned  

• landscaping materials should be selected to serve the intended purpose, i.e. to form a natural fence  

• Low shrubbery and fencing should allow visibility from the street  

• Building entrances should be accentuated by architectural elements, lighting, and /or landscaping  

• Door knobs should be 40 inches from windowpanes  

• Common doorways should have windows and be key controlled by residents  

• Mailboxes should be located next to the appropriate residences  

4. Target Hardening  

• Interior doors that connect a garage to a building should have a single cylinder dead bolt lock  

• Door locks should be located a minimum of 40 inches from adjacent windows  

• exterior doors should be hinged on the inside and should have a single cylinder dead bolt lock with a minimum one-inch throw (See Civil Code §1941.3 for more information.)  

• Exterior doors should be metal or solid wood, never hollow-panel.  

• Exterior doors should have strong strike plates to avoid being kicked open.  

• Double doors are easily forced open.  Flush lever bolts installed at the top and bottom are recommended.  If glass is on doors, make sure that the door is bolted at the top and bottom to avoid reaching through broken glass to open the door.  

• Hinges that are exposed on doors can be easily removed.  Perform retrofits that allow the door to stay in place even if the hinges are removed.  

• New buildings should not have jalousie, casement, or awning style windows  

• All windows should have locks (if designed to be opened Civil Code §1941.3 requires locks)  

• sliding glass doors if they can’t have a dead bolt lock, must have a metal strap with a dead bolt extending from it (See Civil Code §1941.3)  

• Single cylinder dead bolt locks must be installed on all exterior doors 

• Door viewers – this device has a wide-angle lens that allows you to see someone standing outside your door without opening it.  

Alarms  

• In addition to CPTED recommendations, installing a perimeter burglar alarm (for exterior doors and windows) that rings loudly on the premises is advisable although it may be cost prohibitive.  

• Second line of defense – an interior alarm or panic alarm that is connected to the local police department is an amenity that some owners have opted to install.  

Place-specific Crime Prevention – CPTED One Step Further In 1997, The U.S. Department of Justice, Office of Justice Programs, National Institute of Justice published “Solving Crime Problems in Residential Neighborhoods: Comprehensive Changes in Design, Management, and Use.”  This publication examines place-specific crime prevention, which takes the tenets of CPTED one step further: place-specific crime prevention refers to programs of physical design changes, public and private management changes, and use-pattern changes that are targeted to a particular place and its crime problems.    

Place-specific crime prevention builds on environmental design and defensible space adding active crime prevention including community policing and community crime prevention to emphasize modification of design, use, and management of a specific place.  This approach avoids the problems of “one size fits all” crime prevention.  Every place has its own particular challenges that must be met with innovative techniques by the team in the neighborhood that clearly understands those idiosyncrasies.    

Resident Awareness is Part of the Solution - General Tips to Prevent Residential Burglaries  

• Watch for people casing the neighborhood, and strangers asking questions such as, “Have you seen my lost dog?” or “Can I speak to Harry?”    

• Don’t open the door to a stranger.  Ever.  

• Open the door for maintenance repairpersons only if they have appropriate identification or uniforms, or verify with the leasing office to confirm that they need to enter the apartment.  Residents are entitled to reasonable notice in writing, usually 24 hours prior to entry, absent certain exigent circumstances.  

• Many rapes occur in the early morning hours.  Do not allow a stranger in just because it is during daylight hours – or for any reason.  

• Don’t allow a stranger to use the phone or bathroom.  He may be casing the place.  

• Don’t let a person in to use the phone if he claims he has been in an accident.  You can call 911 for him.  

• A youngster may be scouting the area for a potential burglary, or may come to the door while criminals wait just out of view.      

• Watch for people parked in cars for a long period of time.  

• Use timers on indoor and outdoor lights when you are going to be gone for an extended period of time.  

• Leave the radio on, or put it on a timer.  

• Stop the newspaper.  

• Have the lawn mowed.  

• Don’t keep valuables in the bedroom – the first place a criminal will look.  Keep them in an unlikely place, but not the linen closet or the freezer – since those are too common.  

Preparing Your Property       

Keep the Property up to Habitability Standards  

Maintaining housing standards is not only important to public welfare, it protects against neighborhood decay.  Failure to maintain standards in a rental unit is more likely to attract problem residents – it announces to potential criminals that the owner’s standards are low and that inappropriate resident behavior is likely to be overlooked.  

If a resident has been attracted for the wrong reasons to a poorly maintained unit, the tenancy may result in a protracted and expensive eviction.  Landlord/tenant laws protect residents from owner retaliation if the resident complains that the owner has not complied with minimum housing standards (retaliatory eviction).  The resident can raise this as an affirmative defense in court.  If an owner attempts to evict a problem resident from a substandard unit, a judge will have to weigh the behavior of a problem resident against that of a problem owner.  Owners who fail to meet their responsibilities under the law may find that they have compromised their rights under the law as well.  

Before renting your property, make sure it meets applicable local maintenance code standards, habitability requirements of California landlord/tenant law, and – if you rent to Section 8 residents – the U.S. Department of Housing and Urban Development (HUD) standards for “decent, safe, and sanitary” housing.  For more details, see California Civil Code 1941.1 and Health and Safety Code Section 17920.3.  

Keep the Property Visible, Control Access  

The following are some recommended “first steps” for making “CPTED” changes to rental property.  Taken alone, few of the following elements will have a significant impact.  Taken together, they will stop some operators from wanting to move into the property, and will make it easier for neighbors (or surveillance teams) to observe and document illegal activity should it start up.  Initial steps include:  

• Lighting – Use it to the best advantage.  Install photosensitive lighting at all entrances.  Buyers, sellers, and manufacturers of illegal drugs do not like to be seen.  At minimum, the front door, back door, and other outside entrances should be equipped with energy-efficient flood lighting that is either motion or light sensitive – made to go on for a few minutes when a person approaches or to go on at sunset and stay on until dawn.  Backyards and other areas should also be illuminated as appropriate.  While lights should illuminate the entrances and surrounding grounds, they should not shine harshly into windows – either yours or the next-door neighbor’s.  Make sure applicants understand that the lighting is part of the cost of renting and that it must be left on.  Tip: Put numbering on the lights so that residents can quickly identify the ones that are out.  (Staff should perform frequent property walks at night to ensure lights are replaced promptly.)  

• Fences – Make sure they can be seen through.  If you install fencing, wrought iron is best because it limits access without also offering criminals a place to hide.  It also does not provide an easy surface for graffiti.  Wood fencing can also be used effectively, provided wide gaps are left between the boards.  In some cases, you might also consider a lower fence height – for example, four feet high instead of six.  Consider replacing or modifying wood fences that have minimal gaps between boards.  Keep hedges trimmed low.  

• Landscaping – Keep bushes around windows and doorways well trimmed.  Bushes should not impair the view of entrances and windows.  Tree branches should also be trimmed up from the ground so as to discourage the possibility of a person hiding.  

• Addresses – Post the address clearly.  Only the drug operator will benefit if the address is difficult to read from the street.  When address numbers are faded, hidden by shrubs, not illuminated at night, or simply falling off, neighbors will have one more hurdle to cross before reporting activity, and police will have more difficulty finding the unit when called.  

Large apartment complexes should have a permanent map of the complex, including a “you are here” point of reference, at each entrance.  These maps should be clearly visible in all weather and well lighted.  If the complex consists of multiple buildings, make sure building numbers can be read easily from any adjacent parking area, both day and night.  Also, make sure that rental units are numbered in a logical and consistent manner to make it possible for police officers or the fire department to locate the unit as rapidly as possible.  

• Traffic Flow – Control flow and access.  In larger complexes, control access points to deter pedestrians passing by from entering the property.  Do the same for automobile traffic.  People involved in drug activity prefer “drive through” parking lots – those with multiple exits.  Consider blocking some parking exits, adding fencing, and rerouting traffic so that all automobile and foot traffic, coming and going, must pass the same point – within view of the manager’s office.  Another cost effective solution is to install speed bumps.  

If more control is needed, issue parking permits to residents.  You can also require visitors who park on site to register with a courtesy patrol person, who will record their license plate numbers as well as drivers’ licenses.  Just make sure not to discriminate if you have this policy.  Post signs forbidding cars without permits to use the lot.  Towing companies that specialize in this type of business can provide you with signs, usually for a nominal setup fee.  Make sure the signage is in accordance with local ordinances, and that the ordinance information is included on the signage.  Depending on the availability of street parking for guests, either deny guest parking altogether or limit it to specific spaces.  Be consistent in having violators towed away.  Remember it is your parking lot, not a public one.  Be sure to notice and tow vehicles with expired license plates and those that are obviously inoperative.  

• Design for a strong sense of community – encourage use of common areas.  Each of the other steps described in this section should be integrated into building plans to help design a safer rental unit from the start.  In addition, for apartment complexes in particular, building plans should include design elements that will help foster a sense of community.  Recreational areas and other community facilities can help encourage neighbors to become acquainted.  Having more than one pool or barbeque and picnic area can help to establish relationships with neighbors throughout a complex.  Building layouts should nurture more personalized, neighborhood environments over those that may reinforce feelings of isolation and separation from the community.  

Keep It Looking Cared For  

• Remove Graffiti Immediately – Graffiti may be the random work of a juvenile delinquent, or the work of a gang member marking territory.  Regardless, it serves as an invitation for more problems, and it can demoralize and intimidate a neighborhood.  If you believe graffiti may be gang related, call the police.  Then remove it or paint it over.  Remove it again if it reappears – do not let it become an eyesore.  Residents may be willing to volunteer to remove graffiti.  Volunteers can be found at Neighborhood Watch meetings.  

Tip: Goof Off is a product designed to remove graffiti.  

• Repair Vandalism – The Broken Windows Theory  

The broken windows theory holds that maintaining a property in a clean, inviting, and neat manner is not just aesthetics; it is one of the most basic and effective security measures.  As with graffiti, an important part of discouraging vandalism is to repair the problem fast.  If the vandalism appears to be directed against you or your residents, the police should be advised immediately and additional approaches considered to address the situation.  If the damages include a broken window in a rental unit, you must repair it immediately to ensure that the unit remains habitable.  Please note that you cannot charge the resident for repair of the window unless you can prove that he broke it.  If the resident has willfully broken a window and caused other structural and not easily repairable damage, he may have committed “waste” as defined by California law and may be evicted pursuant to an Three-day Notice to Quit for Breach of Covenant – but you still have to fix the window right away.  Note – always see an attorney for any eviction other than a standard failure to pay rent unlawful detainer action.  

• Keep the exterior looking clean and fresh – Fresh paint, well-tended landscaping, and litter-free grounds help communicate that the property is maintained by someone who cares about what happens here, and who is paying attention to things that are going on.  

Maintaining the Neighborhood  

Do Your Part By Participating in Community Programs  

In multi-family units, unless your residents report suspicious behavior, you may not find out about drug activity until the problem becomes extreme.  Some people – residents and homeowners alike – are frightened to report illegal activity until they discover the “strength in numbers” of joining a community watch organization.  Anonymity can be preserved while participating in a watch program.  Whatever you call your program, the goal is the same: transforming a rental complex into a community.  

Organizing a community is more than just encouraging residents to act as “eyes and ears.”  In the absence of a sense of community, the isolation that residents may feel can lead to apathy, withdrawal, anger - even hostility - toward the community around them.  Organizing efforts can lead to profound changes: as apartment residents get to know each other and the manager, a sense of community – of belonging - develops, and neighbors and residents are more willing to do what it takes to keep a neighborhood healthy.  

Complexes that enjoy a sense of community often have more stable tenancies and fewer problems than comparable complexes that are not organized.  Managers who have initiated such efforts note these benefits:  

• Lower turnover, leading to considerable savings  

• Less damage to property and lower repair bills  

• Reduced reported crime  

• A comfortable and relaxed atmosphere for the residents  

• A positive reputation in the complex, leading to higher quality applicants and, over time, higher rents, and increased property values.  

Strong Management  

Strong management is the key.  Management must establish a positive presence in the community.  Suggestions are:  

1. Evict tenants who create a nuisance.  If you have undesirable residents who are involved in drug or gang activity, take the legal steps required to move the residents out.  (You should evict tenants if they are suspected of dealing drugs, with a 30-day notice if they have a month­to-month agreement, or a 3-day notice for nuisance, which requires proof and documentation.  Always seek legal counsel for evictions other than for failure to pay rent.)  Drug dealing is a nuisance per se under California law, so that you do not need to prove the severity of it, just drug dealing alone is enough to warrant an eviction.  Owners must provide quiet enjoyment of the premises for residents, and having drug dealers and associated crime on the property violates the covenant of quiet enjoyment.  Failure to evict them will give rise to lawsuits from neighbors, residents and even local authorities, and associated costs in the tens of thousands of dollars.  

2. Make community activities a management priority.  In addition to Neighborhood Watch activities, have general activities where residents can gather, meet, and get to know each other and management on a social basis.  If other complexes are nearby, encourage events that involve the other complexes, such as volleyball tournaments.  Barbeques, movie nights, ice cream socials, luaus at the pool, a kid’s club, and children’s tea parties are a few examples of the types of activities that can bring residents out to mingle.  A community garden is another opportunity for positive interaction and can be used to give back to the community if fruits and vegetables are donated to a local food bank.  

3. Develop a communication system – use newsletters about activities in the complex and in the community.  Solicit information for the newsletter from the residents.  Ask them about the effectiveness of the courtesy patrol.  Make sure all residents have the manager’s phone number or a number they can use to leave messages.  Make sure messages are responded to promptly.  Encourage residents to develop a list of contact numbers for each other.  In a Neighborhood Watch program, residents will be encouraged to exchange phone numbers.  

Effective Methods to Employ if Criminal Activity and Drug Use is Already Embedded in your Community - Harass the Harasser – Some of the Most Effective Methods:  

Three measures that deter criminals are:  

1. Formal Surveillance – cameras, call boxes, and closed circuit TV.  

2. Access Control – keep doors, gates, and interior common spaces locked.  Have visitor check in booths, guardhouses and pass cards for the common areas.  This may seem harsh and expensive, but it is extremely effective in cleaning up a property that is already experiencing heavy crime.  

3. Surveillance by Employees and Others – private security guards, courtesy patrols, administrative staff, bus drivers, and even crossing guards are extra sets of eyes to report criminal activity. 

Remember - the cost of one lawsuit is far more than the cost of implementing some of the measures mentioned here.  An owner can choose to stage certain improvements over time, while performing some of the least expensive methods immediately.  Adequate outside lighting, trimming landscaping that obscures views, and immediate graffiti abatement are very inexpensive first steps to sending a strong message to criminals.    

Anti-drug Policy Programs  

A strong property manager is needed to recognize criminal behavior and enforce anti-drug programs.  The manager and other staff should be able to identify drugs and drug users; detect signs of drug dealing, and recognize gang activity.  The anti-drug program should include good record keeping of information on authorized residents versus unauthorized visitors to the property.  As mentioned above, a good way to keep track of visitors is to require their registering before entering the property.  This will not work for pedestrian traffic, so it sometimes is difficult to ascertain whether or not someone is a legitimate resident, or a visiting drug customer.  Observation and interaction with neighbors is key.  There should be protocol for screening residents.  There should also be policy on how to deal with difficult crime-related situations, and phone numbers and procedures for dealing with the police department and other community services.  Anti-drug policies should be posted for all residents in a centralized location and should also be incorporated into month-to-month and term lease agreements.  

Educate Your Residents  

Attracting and keeping good residents is your goal.  The best way to keep good residents is to be proactive in addressing and eliminating drug and gang activity if you have it on your property.  Residents must feel confident that management is addressing and solving drug and gang problems in the community, or they will not come forward.  

Residents will then notify management of behavior that could jeopardize the health of their community including any suspicious behavior, provided they feel comfortable in doing so, and can remain anonymous.  Note that residents may be asked to give statements or to appear as witnesses to support an eviction for dealing drugs.  

Employee Anti-drug Policy  

Have strong employee anti-drug policies and enforce them.  Make sure all new employees attend an orientation regarding drug policies.  Drug testing prior to hiring is recommended.    

Terminating a Chemically-Addicted Employee  

Firing a person is never easy.  However, having a chemically addicted employee is an advertisement to residents and criminals that drug behavior is allowed within a complex.  The new employee orientation should specifically address that drug use on or off the property is grounds for termination.  Employee handbooks or regulations should include this information.  Make management’s position on drugs clear ahead of time.  This will help to avoid an argument at the time of termination.  If termination is necessary, keep the termination interview short.  Have documents that outline behavior and performance problems.  Do not judge.  Exhibit your concern, state your position clearly, and reference the stated anti-drug policy in the employee handbook. 

Drug use at work is not a protected disability under the Americans with Disabilities Act (ADA).  A 9th Circuit Court of Appeals case in 1995 held that termination of an employee for illegal drug use on the job was not a violation under the ADA for a disability (drug addiction), rather it was for misconduct.    

Reasonable Accommodation  

If you have already hired an employee, and have 25 or more employees, you must reasonably accommodate any person who voluntarily enters a drug rehabilitation program if it does not cause you an undue hardship.  See your labor and employment attorney for counsel as to whether you should terminate the employee or provide reasonable accommodation.     

Hiring Employees  

Mentioned earlier in the course is the importance of making sure that your employees are screened as carefully, in fact more carefully, than your applicants.  This is not only for peace of mind and discouragement of undesirable elements moving into the property but also because of liability.  If an employee breaks the law while on duty, both the employee and the employer can be held liable.  Even if you elect not to perform criminal background checks on rental applicants, you should perform them on all prospective employees, from groundskeepers to community managers.  In addition, make sure that your insurance policy covers illegal acts of your employees.  

Zoning and Other Local Issues Affecting Property  

Management should participate in associations such as the California Apartment Association’s local chapters or divisions, community programs, elections, and meetings that could affect zoning or other issues affecting the landlord-tenant relationship.  Management should encourage residents to be active in community affairs.  Information regarding meetings and elections could be listed in the newsletter or posted on a community bulletin board.  Interaction builds a feeling of community and of having a vested interest on the part of resident.  

Screening Tips  

Screening Tips and Red Flags for Criminal Applicants  

Tips to consider:  

1. Application Interview – a short interview at the time the application is accepted allows the owner to ask questions for answers that the applicant has not prepared in advance.  It also allows management to observe responses.  Applicants should know the answers to standard identification information without referring to the written application.  Caveat: all of the same questions should be asked of all applicants to avoid later claims of discrimination.    

2. Resident Screening and Credit Reports – there are many details to look for in proper screening of residents including red flags that may appear on credit reports.  Proper screening is the best way to prevent costly problems in the future.  There are special laws that you need to know regarding credit reports and things to consider when designing screening criterion that are too detailed for this class.  

3. Filling in Applications on Site – this will discourage dishonest applicants as they may not have time to make up a story.  It also allows them the ability to leave without confrontation once they realize management is serious about screening.  

4. Gross Inconsistencies – A large luxury car does not match up with a small income.  Be careful not to jump to conclusions, but watch for a combination of more than one thing that appears inconsistent.  (There may be a reasonable explanation for the car, such as an inheritance.)  For instance, a credit report that shows large expenses but a small income can indicate that something is not right.  Although you may not discriminate as to source of income, you are not required to accept an applicant who derives his income from illegal activity.    

5. “Friday Afternoon” Applicants who need to move in on the weekend should be avoided.  You need the time to check references and perform tenant screening and credit checks.  Do not rely on phone numbers – look them up.  Talk to prior owners if possible.  

6. Observe the Way Applicants Look at the Unit – are they looking at a place in which they intend to live?  Honest applicants are concerned about bathrooms, size, and number of bedrooms, etc.  An applicant looking for a place for illegal activity may not look at the unit the same way or give you feedback that a legitimate applicant would.     

7. Use of Fronts – Applicants planning illegal activity may use as a front someone who is presentable and meets the owner’s criteria.  Make sure part of rental criteria is that all residents over the age of 18 must fill out the application, that units may not be sublet, and that there is a strict “guest” policy to discourage people other than the applicants from moving in.  

8. Announce your Approach to Advertising – let applicants know in advance that you do careful resident screening in all of your advertising and literature.  

Finally, be careful that you do not discriminate through arbitrary discrimination in denial of an applicant.  For instance, you thought he “looked” like a drug dealer.  Alternatively, his car was too “fancy”.    

Lease Agreements and Community Policies           

Current Rental Agreement  

Make sure your rental agreements are kept up to date.  Federal, state, and local laws change constantly.  If you are working with an attorney, make sure you check with your legal resources on a regular basis.  If you are using pre-printed forms, check for updates. 

Month-to-month or Lease  

In California, it is more common than in some other states to rent on a month­to-month basis.  If you are concerned about illegal activities of your residents, a month-to-month rental agreement will maximize your ability to remove residents.  Good residents, on the other hand, may appreciate the stability of a lease agreement.  A lease agreement with a good resident is a good option for the property.  With a lease, while you give up your right to serve a “no cause” eviction, you still have the option of a “for cause” eviction.  (In rent-controlled cities, you must show just cause even with a month-to-month rental agreement.)  

Elements to Emphasize  

1. Subleasing is not permitted.  

2. Only those listed on the rental agreement are permitted to occupy the property.  List the overnight guest policy as well.  

3. No drug activity is allowed.  This means no growing, no manufactur­ing, no sales, no distribution, and no usage of illegal drugs.  (Prescription drug use or medical use of marijuana is exempted.)  

4. Residents are responsible for their own behavior AND for the behavior of their household members and their guests.  

5. Residents shall not unduly disturb their neighbors.  This violates their quiet enjoyment, and you as the owner must enforce this covenant for the benefit of others.  

“Drug Free” Lease Addendum  

You should attach an addendum to your lease specifically spelling out those crimes related to illegal drugs that will be considered violations of the lease.  This does not mean that you are claiming that the property is free of drugs or other crimes.  It does mean that every resident signs the addendum, and every resident has been put on notice that drugs will not be tolerated.  Evicting drug dealers is not a choice - an owner has not only an ethical duty to evict drug dealers but can also be held liable for his or her failure to do so.  Having a drug dealer operating on the property is considered a nuisance per se, meaning that no proof of the drug dealing being a nuisance is needed.  However, witness statements and careful documentation are needed to make the case that drug dealing is occurring.  Judges will not uphold an eviction based upon mere suspicion of drug dealing.  The burden of proof lies with the property owner, who in partnership with police and other community resources can work together to evict the drug dealer from the premises.  If a drug dealer is allowed to remain on the property, the nuisance violates the covenant of quiet enjoyment that the owner has agreed to provide for other residents.  

Property Condition Inspection  

Before the resident moves in, perform a property inspection with the resident.  Have both parties sign the agreement.  This will help in deterring damage to the property since the resident knows that any costs of additional damage will be assessed to him.  

Key Pickup  

Make sure that only those individuals listed on the rental agreement may pick up the keys.  This ensures that you are giving possession of the property to the resident(s) on the agreement and not to anyone else. 

Key Security  

Owners can be held liable for failure to secure keys in a locked drawer or cabinet in the office or elsewhere.  All keys should be accounted for and locked securely to avoid a criminal breaking in to access keys that would allow them into rental units.  It is advisable to use a coding system that is not kept with the keys so that the key cannot be matched to a unit or a name without the key code.  Keys should not be tagged or labeled.  

Information Regarding Narcotics and Gangs         

Gangs, Drugs, and Graffiti are Related  

Drug activity in your community could be a result of or in addition to gang activity.  What is a gang?  According to the Crime Prevention Center of the Office of the Attorney General, a gang is a group of three or more persons whose intention is to commit crimes including drug trafficking. 

Members take pride in membership and wear tattoos, clothing, or other paraphernalia to distinguish themselves from others.  Gangs are primarily male organizations but female gangs are becoming more prevalent.  Gangs are generally divided by race or ethnicity.  Consult with local police for gangs specific to your community.  

Besides their apparel, gangs announce themselves by marking their territories with graffiti.  Every available surface will be marked with some sort of permanent paint, marker, or actually etched into surfaces.  Beyond simply marking territory, graffiti announces gang activities, including the sale of drugs.  Graffiti can be deciphered by those that know how to read it and can actually be used to locate drug activity in the complex.  

Taggers are not necessarily gang members.  Tagging graffiti is considered artistic by some.  Sometimes tagging is to show daring by doing it in dangerous locations.  Taggers are generally but not always younger than gang members.  This type of graffiti does not use the same symbols as gang graffiti and can be differentiated by those who can read graffiti.  

Whatever the source, graffiti left untouched gives the impression that management does not care about the property or the type of residents it allows in the complex.  It is up to management to remove graffiti as soon as it appears.  (Goof-Off is a product designed to remove graffiti.)  Also helpful is to eliminate the large blank areas that create a canvas for graffiti artists.  

California and local laws provide for punishment for graffiti artists.  Conviction for possessing a spray paint can intended for graffiti as well as first time graffiti offenders can be punished by hours of community service.  Second convictions can carry jail time and fines as well as community service.  Community service punishment can include graffiti cleanup.  Anyone who threatens a person for removing graffiti is subject to jail time. 

Although there are many sources of information to assist in learning about gang activity, one of the best sources is the local police.  Maintaining a good relationship with the gang unit is essential in working to eliminate gangs on your property.  

Recognizing and Dealing with Illegal Activity              

Recognize the Signs of Addiction Do not put yourself in a dangerous situation in trying to gather evidence or trying to make sure and detect which illegal substance is present.  The purpose of this information is to educate you about drug users’ behavior and for you to recognize types of drugs if you see them – not to make you an expert on the subject.  

Different drugs produce different symptoms.  Some are more recognizable than others.  Below is a list of the most common drugs and their observable symptoms.  Why would you need to recognize one illegal drug from another when none of them are allowed on the property?  Why is it the responsible and ethical property owner’s duty to follow up in addressing illegal drug activity?  The reasons follow:   

The Preponderance of the Evidence Test  

Recognizing and documenting activity will become part of the evidence, and a preponderance of the evidence will support an eviction (unlawful detainer) action against the tenant.  Police cannot evict a resident for unlawful activity of any kind.  Only the property owner can evict a resident, but the owner can work hand in hand with police and other community representatives in the endeavor to address criminal activity on the property.  You should evict drug dealers because it is the best thing to do for the community and all of its residents, not just your own.  You should evict to avoid being sued for a legal nuisance, and for the failure to provide quiet enjoyment for other residents.  Therefore, you need to document the evidence, which can include witness’ and neighbors’ reports, your own observations, and observations from law enforcement.  The test to win in the eviction case requires the scales of justice to swing just slightly towards the likelihood that a person(s) is involved in illegal activity.  Fifty-one percent is the test for preponderance of the evidence.  Hiring an attorney with experience in this type of eviction is recommended.  

1. Cocaine and crack – regular late night activity, talkative behavior, paranoid behavior, constant sniffing or nose bleeds, and weight loss.  

2. Methamphetamine – symptoms are similar to those in cocaine and crack users.  Hard core users may have open sores, bad teeth, and exhibit bad personal hygiene habits.  

3. Heroin – when on the drug, addicts are said to be on the “nod”.  They are disconnected and sleepy, even falling asleep during conversations.  Clothing and personal hygiene are not high on a heroin addict’s list of priorities.  They are often thin.  When not high, they can be aggressive.  While some addicts can be identified by needle marks in obvious areas, others are adept at hiding their injection sites.  

4. Marijuana – Users are disconnected and non-aggressive when on the drug.  They can become aggressive at other times.  The user’s eyes may appear bloodshot and/or dilated.  Their clothing can contain pinholes, especially around the neck and chest from sparks.  Marijuana users often exhibit weight gain.  There is a distinctive odor associated with the smell of marijuana.  

5. Other drugs  

a. Depressants – Users are depressed and drowsy.  Speech is slurred and behavior may be irrational.  Users may also be belligerent, confused, and generally lack coordination.  Note that not all drug users are using illegal drugs.  If the drugs are lawfully prescribed and no nuisance results due to the resident’s behavior resulting from use of the drugs, you cannot evict the resident.  

b. Hallucinogens like PCP, Peyote and Mescaline, psilocybin, and LSD produce auditory and visual hallucinations.  Users may appear irrational, have vision and coordination problems and may be aggressive. 

c. Designer Drugs – a variety of symptoms  

Learn to Identify Drugs  

1. Cocaine – Powdered cocaine looks like baking soda and is sold in small envelopes.  Crack looks like a piece of old dried soap and is sold in tiny sealable plastic bags, glass vials, or balloons.  

2. Methamphetamine – can be sold in a variety of capsules, pills and tablets or as white, cream, or yellow powder or rock resembling paraffin.  Crank and crystal meth have a strong medicinal smell.  

3. Heroin – can be a powder varying from white to dark brown or it can be a tar like substance.  

4. Marijuana – looks like dried parsley with stems and leaves.  Hashish comes in brown or black cakes or balls.  

5. Other drugs  

a. Depressants – come in tablet or pill form  

b.Hallucinogens  

i. PCP – liquid, capsules, white crystalline powder, pills  

ii. Peyote and Mescaline – Hard brown discs, tablets, capsules  

iii. Psilocybin – fresh or dried mushrooms  

iv. LSD – brightly colored tablets, blotter paper, thin squares of gelatin or clear liquid.  

c. Designer drugs – White powder, tablets, capsules   

Detect Signs of Drug Use in the Community  

Excessive foot and vehicular traffic to and from specific units in the complex indicates that something is going on.  So do large numbers of people that you do not recognize in the community.  Unusual activity like loading or unloading of personal property from units where the residents are not moving out may indicate that drugs are being paid for with stolen property.  If you find drug residue or paraphernalia in the landscaping or the complex, this is a definite sign that at least drug usage is happening in the complex.  People, even children, loitering in the complex especially if they spend time on radios or cell phones can function as lookouts for drug dealers.  Large guard dogs may be utilized if pets are allowed in the complex.  And of course, gang markings can indicate drug activity. 

Warning Signs in Residential Property  

All of the signs listed above are symptoms of drug use and drug dealing.  In addition, owners may observe other symptoms of dealing in the community.  

1. Exchanges of cash and packets through windows, mail slots, or under doorways.  

2. Failure to pay utility bills or rent and failure to maintain the unit or even damage to the unit.  

3. Expensive vehicles, particularly when owned by people without any employer of record.  

4. A tendency to make frequent late night trips.  

5. A dramatic decrease in activity after police are called.  

6. Unusually strong fortification of the unit.  Any additional fortification is most likely a violation of the lease.  The owner should not allow a resident to install locks or to build barricades of any kind.  

7. Firearms  

8. A willingness to pay rent months in advance, particularly in cash.  Note that you may have a no cash policy, if stated in the rental or lease agreement, but you may not have a cash only policy, according to a new law signed in October 2004.  The exception to a cash only policy is that you may require cash only for a period of up to three months after a check has been returned for insufficient funds.  

9. A tendency to pay in cash combined with a lack of visible means of support.  

Marijuana Growing Operations  

Growing operations require powerful lighting.  You may notice that electrical wiring has been tampered with to hook directly into power lines.  The powerful lights will be left on all night, resulting in higher utility bills.  In addition, marijuana plants require a high humidity level.  In addition to high humidity, owners may observe peeling paint or mildewed wallboard or carpet. 

Clandestine Labs  

Methamphetamine “meth” labs are dangerous because the chemicals used in the production of meth are poisonous and explosive.  If you suspect a meth lab, do not enter the property but contact the local police.  Signs of meth labs are:  

1. A strong smell of ammonia like a very dirty cat box.  

2. Other odd chemical smells that do not belong in a residential complex.  

3. Chemical containers and lab equipment such as beakers, flasks, rubber tubing, etc.  

4. Many empty containers of over-the-counter cold or allergy medications used in the processing.  

5. A large number of matchbooks or matchboxes used in the processing.  

6. A dark red residue on counter tops, coffee filters, or aluminum foil, in the unit that comes from the phosphorous in matches.   

7. A maroon residue on aluminum materials in the unit. 

Enforcing Policies and Eviction Procedures          

Ongoing Management  

Do not bend the rules.  If you are aware of any breach of your rental agreement or complex rules, take action before accepting the next rent payment.  If you accept rent knowing that there is a violation in progress, you may lose the right to serve any notices for the behavior.  If someone other than the resident tries to make the rental payment, find out why.  If a person not on the agreement is living in the rental, get the illegal occupants to fill out and be approved on a rental application or serve a notice to remove the illegal resident.  An eviction action for illegal sublet can commence very quickly, pursuant to a 3-day Notice to Quit for Breach of Covenant.  You must still abide by all of your responsibilities under the law.  When a resident does not pay rent, find out why immediately and get the matter resolved.  If neighbors call to complain about problems, check out the problems right away.  

Take Precautions Against Drug Offenders  

The best defense is to make sure you have your pre-screening and screening plans in place and stick to them.  Make sure your rental agreement covers all potential problems so that you can legally remove residents if you must as soon as necessary.  

Crisis Resolution  

The best remedy for illegal problems is observation and prompt action.  Walk your property at night as well as during the day.  Use the opportunity to check for lighting that needs to be replaced as well as observing the traffic in and about the property.  

Do not wait, act immediately.  Address problems quickly and fairly as soon as they arise.  You can implement a no parking or no standing or loitering zone in an area on the property where drug users loiter.  Know how to respond if a neighbor files a complaint.  If you detect drug activity in your community, report it to the police.  Hopefully, the investigation will succeed and result in the arrest and prosecution of a criminal.  You do not want this resident in your community, and the best way to deal with a drug dealer is to terminate the tenancy.  The process must be done legally but swiftly. 

Good Legal Help  

If you are not familiar with the process for eviction or are in any way unclear or unsure about it, find a skilled landlord/tenant attorney before taking any steps in the process.  Even if you are familiar with the eviction process, the process of using a Three-Day Notice to Quit for Breach of Covenant for drug dealing is not the same as serving a Three-Day Notice to Pay Rent or Quit.  It is highly recommended to obtain legal counsel before undertaking this type of eviction.    

You should evict a tenant who is dealing drugs.  If you do not, you can be held liable for many thousands of dollars in damages and even face the loss of your property.  If your property is in Los Angeles, Long Beach, San Diego, or Oakland, the city attorney may ask you to file an eviction against a drug dealer or will file it for you if you claim a safety-related reason for your non­compliance, such as fear of retaliation.  In October, 2004 a new law was signed that extended this program to 2010.  If you do not live in these limited areas, you must perform the eviction yourself, either with or without counsel.  If you have a month-to-month tenancy, you should serve a 30-day notice without stating a reason.  (The notice is for 60-days if the resident has lived there for one year or more, although this law is set to expire January 1, 2006.)  That is the fastest way to eject the drug-dealing tenant.  If you have a term lease, you need to prove the reason with a preponderance of the evidence after serving a Three-Day Notice to Quit for Breach of Covenant.  If your units are subject to rent control, you must prove your case under “just cause” eviction rules.  

Paying for legal help up front can prevent your having to pay for a lot of legal help later on, especially when dealing with a Three-Day Notice to Quit for Breach of Covenant.  A judge will not force a tenant to move in such a short time absent adequate proof.  It can be quite expensive and difficult to evict a suspected drug dealer or other criminal, and errors in the process will unduly delay it.  Local chapters and divisions of the California Apartment Association have lists of attorneys with eviction experience.  The yellow pages has a section for attorneys under the specialty of landlord/tenant law as well, or you may also check with your local chamber of commerce or the local bar association, for a referral.  

Choices for Eviction - Notices  

1. “No-cause” Evictions – You may evict residents for “no cause” by giving at least a 30-day notice the first year of tenancy when they are on a month­to-month rental agreement, and at least a 60-day notice after the first year.  (Current law provides that residents who have been there for one year or more are entitled to a 60-day notice, however this law is set to expire or “sunset” January 1, 2006.)  Ideally, this is the notice to serve since you do not have to go to court with any proof of the illegal activity.  If you have a term lease for a year or more, you cannot use this method.  If you are in a city with a rent control ordinance, or participate in the Federal Section 8 program, the usual rules for 30-Day or 60-Day notices do not apply.  Make sure you check the rules first before serving the resident with the wrong notice.  

2. 3-day Notice to Pay Rent or Quit – This is the most common of the notices, and is strictly used when rent is delinquent.  Do not accept partial payment, or you will invalidate the notice and have to start over.    

3. 3-day Notice to Perform Covenant or Quit – If the resident is not in compliance with the rental agreement you may serve a notice that requires the resident to correct the problem or move out in 3 days.  Do not use this notice for a minor problem.  Do use it for causing a person to get rid of a pet in violation of a pet policy, to get rid of an inoperative automobile, or to register an auto with expired tags.  This is not the notice to use when drugs are involved.  

4. 3-day Notice to Quit for Breach of Covenant – This is the most severe notice that can be served under California law and is reserved for serious lease violations, illegal behavior, nuisance, and non-compliant behavior that cannot be made right.  Use this notice for drug dealers on a term lease.  You should seek legal advice before attempting to serve this notice.  

5. Mutual Agreement to Dissolve – It may be possible that the resident would be willing to relocate to another community.  Do not be tempted to give the resident a good reference when negotiating for the proposed move.  It is ethical to respond truthfully to another owner if asked about late rent, or nuisance complaints.  Write a letter to the resident discussing the problems and offering supporting evidence.  Recommend dissolving the terms of the lease and allowing the resident to look for other housing.  Have the letter reviewed by an attorney familiar with landlord-tenant  

The Eviction Process  

The California Landlord’s Law Book: Evictions, Nolo Press, Edition 10, can guide you through the process of evictions based upon failure to pay rent.  You may decide to obtain an attorney for all evictions, but at minimum, it is recommended that you hire counsel for evictions for any reason other than failure to pay rent.  There are also eviction workshops held at the local municipal or superior court that offer invaluable assistance.  Court Clerks, although they cannot give legal advice, can advise you as to the forms required for filing, costs, timing, and the general process.    

1. Serving the Notice (3, 30, or 60-Day)  

It is vitally important that the notice be served correctly.  If unlawful detainer (eviction) cases go to trial, the eviction notice will weigh heavily in the case.  Make sure you use the right form or have your attorney provide it.  Make sure you fill it in correctly with the specific breach of the law or the rental agreement and make sure it includes the names of all of the adult residents in the apartment.  You should contact an attorney if the eviction is based upon anything other than failure to pay rent.  You also need to include the names of unknown residents: Does 1-5.  Since the residents are unknown, list them as “Does 1-5.  Make sure to wait the prescribed period of time before filing an unlawful detainer action in court.  The waiting period differs depending upon the method of service: personal service, substituted service on another person, or posting on the front door and mailing.  The best service is personal service.  Residents generally have 5 days from service to respond.  If service is not personal, additional time must be allowed for the response (15 days).  In addition, any unnamed residents who receive the “Prejudgment Claim of Right to Possession” forms have 10 days to respond.  

2. File and Serve the Summons and Complaint for Unlawful Detainer  

If the resident has failed to move out or comply with the notice within the required time frame, the owner may initiate an unlawful detainer lawsuit in Municipal Court to regain possession of the property.  Once the complaint has been filed, a Summons and Complaint must be served on the resident as well as any unknown occupants living in the rental unit.  If an unknown occupant is not served with the lawsuit, he or she can file a “Claim of Right of Possession” after the court proceeding is over, and the sheriff has posted the property with a notice that occupants have five days to move or they will be bodily evicted (physically moved out).    

The way to avoid this problem is for a sheriff or registered process server to ask if there are other occupants living there when serving the named occupants with the Summons and Complaint.  If so, the sheriff or process server serves each of the additional people (unknown occupants) with a copy of the Summons and Complaint as well as a blank Prejudgment Claim of Right to Possession form.  The server then records this information on a proof of service form.    

The unnamed occupants then have ten days to file a Claim of Right to Possession, or they will lose the right to do so when the sheriff posts the property for move out.  If a claim is filed by an unnamed occupant, they are added to the unlawful detainer action as a defendant by the court clerk, who sends a notice to the owner.  The unnamed occupant then has five days to respond to the Summons and Complaint.  If they do not, the owner can obtain a default judgment for possession.  Since only a sheriff or registered process server can serve the unnamed occupants with the paperwork, the eviction will take longer and cost more.  In addition, the time to obtain a judgment is extended from five to ten days after service.  

If you have no reason to suspect there are additional occupants, you may opt to avoid this process.  There are timing issues with the notices; make sure you have incorporated the correct amount of time and allowed time for delivery and performance.  Under California law, you must attempt to serve the resident in person before using other methods.  If you cannot hand-deliver it to your resident, you may give it to a competent person over 18 years of age at the property and mail another copy to the resident at his or her home address.  Alternatively, you can attach the notice in an obvious place near the entrance of the dwelling and mail a second copy the same day.  (Nail and mail)  This last method will require additional timing in the notice.  

3. Set for Trial and Get the Judgment  

The property owner must request the court to set a trial date, by filing a Memorandum to Set Case for Trial.  California law requires that a trial be held within 20 days of the date Memo to Set is filed, although in practice, some courts take longer.  Make sure you have documentation and witnesses to take to court to refute any defense claims by the resident.  A default judgment can be obtained if the resident has not filed a written response to the court within five days if personally served, or within fifteen days if he was not.  The owner will prepare a Proposed Order and Judgment, and a Writ of Execution for possession after getting a default judgment for Possession.  

4. Defenses to Unlawful Detainer – if Resident Contests the Eviction  

If a 30-day notice has been served without a specified reason, the resident has no acceptable defense unless he can claim retaliatory eviction (the owner has retaliated against the resident because the resident exercised a specified legal right,) or that he has a long-term lease that has not expired.  If one of the 3-day notices has been served and the resident contests the eviction, he must file legal documents within the time frames specified above.  There are several affirmative defenses that the resident may claim:  

The “Implied Warranty of Habitability” (California Civil Code, Section 1941.1) is an implied agreement that the owner will provide habitable premises in exchange for receiving rental payments.   

Some of the requirements are that an owner provide:   

• Effective weather protection   

• Waterproofing of premises including the roof, exterior walls, windows and doors  

• Plumbing in good working condition, with running hot and cold water connected to a sewage system  

• Electrical system with wiring, lighting, and equipment in good working order  

• Gas and heating facilities in working order   

• Clean unit, without trash, garbage, rats, mice, roaches or other pests  

• Floors, railings and stairs in good repair  

• Adequate covered bins or cans for garbage  

• Operable dead bolts on hinged unit entry doors and locks on windows  

• Working toilet, sink, and shower.  

This is a partial list of things that landlords must provide at a minimum (other items may include working appliances, if present upon move–in).  Tenants must take reasonable care of the unit and common areas.  The “Implied Warranty of Habitability” does not mean the rental unit has to be in perfect condition.  A need for minor repairs or the existence of cosmetic flaws do not make the unit unacceptable under the implied warranty of habitability standard.  Breach of the warranty of habitability means that the owner has not adhered to the requirements to keep the rental unit in a habitable condition.  This is an affirmative defense to an unlawful detainer action that could invalidate the proceeding.   

The Repair and Deduct Defense is another affirmative defense, and can be found in California Civil Code, Section 1942.  

If the tenant feels that the unit is sub-standard and is a breach of the implied warranty of habitability, the Repair and Deduct method allows the tenant to deduct money from the rent to pay for the needed repairs.  The amount deducted cannot be over one month’s rent and this method cannot be used more than twice in any 12-month period.  Before continuing with this step, the tenant must:  

1. Notify the property owner in writing that the repair and deduct remedy will be used because the repair was not made in a reasonable time.  The tenant may hire a competent person to make the repair or even do the repair themselves if it is done in a competent way.   

2. Keep a record of all related cost receipts and deduct those costs from the next rent payment.  Include copies of receipts and a brief explanation with the next rent payment.  If the owner evicts the resident for exercising this remedy, the eviction will be invalidated due to this being an affirmative defense to the lawsuit.   

Refusal of Rent, Waiver, Cancellation Defenses If the owner refuses to accept rent (during the 3-day period), the resident may claim this reason as an affirmative defense, as well as waiver or cancellation of notice to quit, due to the owner having accepted a partial rent payment, or acting in some way that would cause the resident to believe the 3-day or 30-day notice has been waived or cancelled.  

Retaliation Defense An owner cannot retaliate against the resident for exercise of a legal right, such as withholding rent for the owner’s failure to repair a necessary item.  

Discrimination Defense The discrimination defense can also be claimed as an affirmative defense by the resident.  Some attorneys advise that you contact legal counsel should the resident be a member of a protected class.    

Other Affirmative Defenses If the owner violated a rent control ordinance, accepted rent after the notice period expired, or if the resident claims “other affirmative defenses”, the resident can use this information to successfully defend the unlawful detainer lawsuit.  

5. Have Sheriff Serve the Writ for the Move Out  

As soon as you obtain the Writ, take it to the sheriff’s office to start the process.  Check with local authorities regarding the cost for service and the copies they require.  The law enforcement official will serve a notice on the resident which explains that he will be removed from the property if he does not move on his own.  This is generally done within 48 hours of filing the writ.  Residents then have 5-8 days to move out on their own.  

6. The Money Judgment  

Owner Liability for Failure to Act  

The average settlement paid by owners’ insurance companies for crimes such as rape and assault committed by a third party is $600,000 and the average jury award after trial is $1.2 million.  Owners also have a legal duty to protect residents who are injured by the criminal acts of assailants and thieves so they should proactively take preventative measures to respond to potential liability.  Failure to do so can cost much more than even the most sophisticated surveillance system.  One example of a preventative measure is changing the locks in every unit after a resident moves out.  

Evicting a drug dealer is not an option, since drug dealing is considered a legal nuisance, and failure to remove the dealer violates the covenant of quiet enjoyment entered into by the owner and other residents.  (Eviction is not necessary if the drug dealer leaves voluntarily.)  As an owner, you are subject to liability from lawsuits if you fail to provide premises that are drug-free.      

Your Responsibility in Building Rapport with  

City, State and Government Agencies     

The best way for you to build rapport to reduce crime and liability is to make alliances with the key players in the community, including residents, police departments, code enforcement department of cities or counties, and existing organizations such as neighborhood, block and lobby watches.  Community involvement instills a greater sense of ownership and a lower tolerance for criminal activity.  Trust among the actors is crucial in building alliances.  New management in a crime-ridden area may need to be persistent to make the police take them seriously while residents may fear retaliation if they are not supported by management and the police.  Understanding and trust among all of the players is important and necessary in taking back the streets from the criminals.  

Role of the Police  

It is a common misconception that law enforcement agencies can evict residents involved in illegal activity.  This is not the case.  Only the owner can evict residents, except for a state law program limited to four cities, which allows city attorneys to file eviction lawsuits on behalf of the owner.  State law extends to 2010 a program that allows Los Angeles, Long Beach, Oakland, and San Diego, city attorneys to require an owner to evict a drug dealer, or supply a written explanation of the reason he cannot comply.  A safety-related reason for non-compliance such as fear of retaliation will suffice.  If the owner will not file the action, then the city attorney can.  Police can arrest criminals for illegal activity but eviction is a civil matter.  Although arresting a criminal may remove him or her physically from the property temporarily, an arrest does not take away a person’s legal right to possess your property.  You must still evict him or her in a separate process, otherwise he or she has the right to return after incarceration and reoccupy your property.  

Because eviction is a civil process, it may actually be easier to evict a resident than it would be for the courts to convict that same resident of illegal activity.  Conviction of a crime requires proof beyond a reasonable doubt while civil proceedings only require just enough evidence to tip the scales in your favor (a preponderance of the evidence or fifty-one percent.  

The only time law enforcement may get involved in an eviction process is to enforce the outcome of the civil suit for eviction.  At the end of the eviction process if the judgment has been found in your favor, the owner must go to the police or sheriff and request that the resident be physically removed from the property.  The paperwork is called the Writ of Execution, and is served by law enforcement on the tenant, either personally or via the “nail and mail” posting and mailing process.    

So does that mean you wait until the police show up to arrest your residents for illegal activity or that you do not contact them unless you need a resident physically removed after a judgment?  Not at all.  There are many resources within local, county, state, and federal community and law enforcement agencies to help you maintain a drug, gang, and crime-free property.  These programs focus on recognition and prevention.  In helping the community, law enforcement agencies end up helping themselves.   

Visit the U.S. Department of Justice’s COPS (Community Oriented Policing Services) website at http://www.cops.usdoj.gov/  or view the three on-line tool kits to assist communities in building effective partnerships and sustaining programs for children and youth at http://www.ojp.usdoj.gov.  See the California Attorney General’s Office Publications website at http://caag.state.ca.us/publications/ for information.  You can do a search for “Regional Community Policing Institute” California.  Many counties in California have this program.  Alternatively, search for the “Violence Prevention Coalition” California for information on and from this organization.  

After you have done an Internet search for the help that is available, contact your local law enforcement agency.  Make an appointment to meet, and spend some time with your local patrol officers.  Let them know your commitment to striving to keep your community drug, gang, and crime-free.  Also, inquire about special problem-oriented policing officers and teams or task forces who specialize in drug and gang activity.  They can help you with what to look for in advance of any action.  They can advise you on when and how to contact the authorities and what information is required or helpful to them.  They can also help you with documentation and possibly your testimony needed for your eviction hearing.  The resources are out there.  Take advantage of them. 

HUD Housing or Owner’s Subsidized Housing  

Section 8 of the United States Housing Act of 1937 (42 U.S.C. § 1437f) and Section 236 of the National Housing Act of 1949 (12 U.S.C.  § 1517-z-1) refer to federal subsidy programs that allow people of limited means to rent housing by paying a portion of the rent.  Section 8 housing (now called “Housing Choice Voucher Program”) is administered through the U. S. Department of Housing and Urban Development (HUD) and administered locally by Public Housing Agencies (PHAs).43  For more information on the requirements of eviction for subsidized housing, see Civ. Code § 1954.535 and 24 C.F.R. §§ 882 etc.  

In general, residents of Section 8 subsidized housing tend to have broader rights than non Section 8 residents.  They may be more likely to resist eviction because eviction can make them ineligible for the program.  Before you rent, use the same procedures to screen a Section 8 applicant that you use when screening any other resident.  While you may use the same rental contract or lease agreement that you use with non-subsidized residents, there will be a lease addendum provided by the local PHA.  Make sure you read it carefully.  

Subsidized Housing 90-Day Notices to Terminate  

If subsidies are received, you may only evict residents for certain reasons.  The reasons should be listed in agency regulations or the form lease.  If you simply do not want to participate in the Housing Choice Voucher Program any more, that should be the reason listed, but you cannot do this until the resident’s initial rental term has elapsed.  After the first term is over, you can evict for no-cause.  Check with your local housing authority to determine the procedure and notice requirements.   

Domestic Violence  

Domestic violence is unfortunately a fact of life and may occur at a rental property you own or manage.  If residents engage in ongoing disruptive behavior constituting a nuisance, you may evict them after proper notice and documentation.  Documentation including other residents’ complaints is helpful in establishing proof of the nuisance.  See your attorney as the burden of proof for “nuisance” evictions can vary from jurisdiction to jurisdiction.  Although you may use a 3-day Notice to Quit for Breach of Covenant, it may be advisable to use a 30-day notice if the tenancy is month-to-month, since the former requires proof, and the latter does not, except in rent-controlled jurisdictions that require just cause to evict.  If the tenancy is a term lease for a year or more, you have no option but to use the 3-day notice.    

Many owners and resident managers maintain a very close, almost familial relationship with their residents.  Often there is a tendency for management to get involved and to take sides in a domestic dispute.  It is very important to let the police handle these matters and to stay out of discussions with either party involved.  One of the most dangerous calls a police officer receives is to respond to a domestic violence situation.  It can sometimes result in the death of the police officer.  Stay out of harm’s way, and let the police assume the risk and do their job.  

Your job is to provide quiet enjoyment for the residents of the community as a whole.  If you allow domestic violence to occur and fail to aggressively deal with the issue, you run the risk of violating the covenant of quiet enjoyment for others.  

Restraining Orders - Don’t Change the Locks  

Under no circumstances should you change the locks or allow one resident to lock out another.  A temporary restraining order (TRO) or a permanent injunction prohibiting a party from entering onto the property does not affect his or her rights under the rental agreement or lease nor diminish them in any way.  (However, if a court order specifies that the locks be changed, you should change them immediately.)  If a resident changes the locks without permission, that is probably a violation of the rental agreement and you can force them to give you a key (3-Day Notice to Perform Covenant or Quit) or to give up the tenancy.  Once you have a key, you may still be put in an awkward situation at best and a life-threatening situation at worst if the resident who has been locked out requests entry to the unit.  

Civil Stand-by  

If a resident has been restrained from contact, you may be asked by the resident to give him/her a key, or to stand by while he/she removes her possessions.  Advise the restrained resident to call the police for a “civil stand­by”.  Most police departments will provide this service without a court order.  Wait for the police to arrive before unlocking the door, then leave.  To avoid liability, resist the urge to mediate discussions with the residents or to talk to each one privately about the situation.  Do not discuss their situation with others.  

Calling 911  

If you have a copy of a restraining order, and you see the restrained resident entering onto the property, you can first call to warn the protected resident, and then call 911.  You have no duty under the law to do this, but you can make the calls without fear of liability.  Do not follow up with a visit to the unit, or take any other action.  Law enforcement will take over from there.  

Child Abuse  

If you suspect child abuse is occurring on the property, California allows for you to call any Sheriff or police station.  Law enforcement staff will take a report and send it to the proper jurisdiction.  Mandated reporters such as clergy, law enforcement, daycare workers, etc. must report child abuse.  Ethical and responsible property management employees and owners should report any suspicion of child abuse, but are not required to under the law.  

Elder Abuse  

If you suspect an elder or dependent adult is being abused, contact your local Adult Protective Services or local law enforcement.  Mandatory reporters such as health practitioners, clergy, employees of adult protective services agencies and local law enforcement agencies, must report elder abuse.  Ethical and responsible property management employees and owners should report any suspicion of elder abuse, but are not required to under the law.  

Megan’s Law  

Megan’s Law  

Megan’s Law was passed by Congress in 1996 to provide limited access to information about sex offenders.  In 1998, California passed legislation that required rental property owners and sellers to disclose the existence of a database of registered sex offenders, with language that must now be incorporated into every rental agreement.  In September 2004, a new law was signed by California’s governor that allows internet access to high-risk sex offenders’ home addresses as well as their photos and other information.      

Despite the fact that arguments have been made that sex offenders have paid their debt to society, and should not be required to register, both federal and state laws have been passed emphasizing that the value to society in identifying sex offenders (due to the high recidivism rate of repeat offenders), outweighs any argument put forth by  sex offenders.  

Megan’s law and the latest California law both stipulate that the use of any information derived from the database cannot be used for certain purposes, including discrimination in the area of housing or accommodations, and that up to a $25,000 fine shall be assessed against an owner if he or she does.  While the law prohibits an owner from denying rental of housing simply because a sex offender is listed in the database, the law also states that a person is authorized to use information from the database “only to protect a person at risk.”  One may argue that a sex offender living near children would put the children at risk.  Some offenders have committed crimes against other adults, both men and women.  They too could be at risk with a sex offender living nearby.  

Courts are holding owners liable for foreseeable injuries on a regular basis, and may impose a duty on an owner who fails to act to protect others.  Although law enforcement can disclose information about a sex offender when they believe he poses a risk, it is questionable whether a rental property owner can deny housing on that basis, merely because the sex offender is listed on the registry.  If the owner has knowledge of the sex offender’s history and evicts him on that basis, the owner may be liable for damages.  If the owner has knowledge of the sex offender’s history and rents to him anyway, the owner may be liable for damages for failure to protect other residents against a foreseeable and known risk.  

Solution for Some – “Don’t Ask Don’t Tell”  

Many owners simply do not check the database or perform criminal background checks in an attempt to avoid responsibility for failure to act on the knowledge that a person is a sex offender or that the criminal history of one resident may pose a risk to another.  This solution does not work if the police or someone else makes the owner aware that the resident is a sex offender, based upon knowledge gained from the Megan’s law list or any other means.  Once the owner has knowledge, he may then owe a duty to protect other residents from a now known and foreseeable risk of harm.     

A recent California Superior Court case, in a discussion of Megan’s law, opined that while Megan’s law forbids misuse of sex offender status information, it allows the police to use the information to protect the public.  (Stellrecht v. Decker, Superior Court, Orange County).  According to Stellrecht, once the police have identified an overt risk, the owner may evict.  The court differentiated between a sex offender who is simply on the list, from a sex offender who has been identified by law enforcement as an overt risk.  Although the court in Stellrecht did not find Megan’s law applicable in an unlawful detainer suit, since it is not a valid defense to unlawful detainer, it left open the question of liability for denial of housing based merely upon a sex offender’s inclusion on the registry.  

The California Supreme Court has not yet addressed the issue and lower court rulings are not binding upon other courts.  The Supreme Court did find that a balancing test must be applied when determining whether an owner owes a duty to victims injured on his property, and might use the same test in future Megan’s law litigation.  Since the law in regard to Megan’s law is unclear, owners’ liability is currently being assessed on a case-by-case basis.   

Solution for Others – Accept the Risk of Being Sued  

Some property owners, citing liability for failure to act to protect other residents, have decided to accept the risk of liability and to absorb legal costs and possible damages for discriminating against the sex offender by evicting him or refusing to rent to him in the first place.  If the offender is not evicted, there may still be liability for failure to act to protect other residents from harm.  The risk of being sued exists either way.  Some owners gamble on the fact that an evicted or denied sex offender will not likely file a lawsuit, and even if he does, damages are limited to $25,000.  An injured resident, on the other hand, may be awarded damages far in excess of $25,000, so the risk assessment is one of the lesser and less expensive of two evils.    

(In Rowland, the court stated the following factors should be considered in deciding whether public policy commands the imposition of liability: the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, and extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost, and prevalence of insurance for the risk involved.)   

Federal Fair Housing Argument  

The Supremacy Clause of the U.S. Constitution is found in Article IV, Section 2, and provides that federal law is superior to and overrides state law when they are in conflict.  The federal Fair Housing Act provides that an owner is not required to rent to applicants whose tenancy would constitute a “direct threat to the health and safety” of other individuals or whose tenancy would result in substantial physical damages to the property of others (42 USC § 3604(f)(9).  On this basis, California owners could argue that federal law has therefore preempted state law so that the Megan’s law statute is unenforceable.    

What Should an Owner do about Criminal Background Checks for Other Types of Crime?  

Each owner must make his or her own decision as to criminal background checks - if the decision is made to do them, they must be done on every single applicant at the same degree of scrutiny.  (This does not mean that you must do them on every applicant that applies.  Rather, you may wait until they have passed all of your other requirements, such as approval of reference and credit checks, before moving on to a criminal background check.)  Written criteria must document the policies and procedures to avoid any claim of discrimination that might arise due to claims of policies being enforced unequally.  If they will be performed, the owner has a number of decisions to make: 1) what counties will be included?  Adjacent counties, where the person works, where the property is located?  Statewide checks require fingerprinting, which may cause a good tenant to seek housing elsewhere rather than submit to the testing.  2) Where will the owner draw the line as to the types of crimes that are acceptable, including the length of time since a crime has been committed?  Will individuals who committed property crimes be accepted, but not those who committed violent crimes against a person?  Drunk drivers will be accepted, but not those who committed auto theft?  What about a sexual offender who was 18 with a 17-year old girlfriend, guilty of statutory rape?  The cost of criminal background checks can be prohibitive and vary with the degree of check performed.  

Megan’s law will “help” an owner detect the offender, but may not be the basis for a defense in court if the information gleaned from it is used to deny housing, since the statute plainly states that it cannot be used for such a purpose.  One option is to allow the sex offender to move in, but to inform all of the neighbors of the potential risk.  It is doubtful that many residents would decide to stay.  If law enforcement tells the neighbors, an owner still risks losing occupants – but has no control over the decision to inform them.  

Rental owners are forced to disregard any information on a sex offender’s background and must not discriminate in denying housing to him; while on the other hand, the information may be used to “protect a person at risk”.  Although Megan’s law itself does not put the onus to protect other residents on the property owner, it leaves open the question of an owner’s liability for failure to disclose the existence of a sex offender resident when his tenancy alone may be a foreseeable risk to others.  The decision of whether to allow a sex offender to reside at a property or not is one that must be made by each property owner.      

Conclusion  

There are many effective, efficient, and inexpensive solutions to large and small security problems, that are in many cases easy to implement.  By taking an active role and personal responsibility in the improvement of the neighborhood, owners will reap many benefits: Positive changes made to a property will affect the residents’ feelings of safety and security while discouraging the criminal element, and constant vigilance by residents, management, the police, and community watch groups will help to ensure that criminals go elsewhere.    

If you fail to maintain your rental property, however, you violate the resident’s right to habitable premises, and you encourage gangs and other criminal elements to move in.  Once they are in, it can be costly and time-consuming to remove them.  A resident can raise the defense that you failed to provide habitable premises which invalidates the eviction proceedings.  Allowing drug dealers to remain also violates the covenant of quiet enjoyment of other residents, which can lead to other lawsuits.    

You have a clear ethical duty to immediately address suspected drug dealers, and can be liable for failure to remove a legal nuisance.  While the cost of settlements or judgments can far exceed the cost of implementing security methods, filling the units with good tenants will reduce legal expenses by thousands of dollars annually.  

Regardless of your vigilant efforts, you may end up in court if you discriminate against a sex offender or if you fail to protect other residents against a foreseeable risk of harm.  At the end of the day, striving to maintain a property without drug dealers or other criminal elements is not just good business, it is the right thing to do.