1. Question:
I served a rent notice for my commercial tenant. The notice expires in 3 days. He just called me and asked if I would accept partial payment. Should I accept the partial payment?
Answer:
With a commercial tenant, California law permits you to accept a partial payment and proceed with an eviction if the notice contains language specified under California Code of Civil Procedure §1161.1(b). Your 3-day notice must specify that although you may accept a partial payment, you can still proceed with the eviction. If you do accept partial payment, inform the tenant in writing you will continue with the eviction, so they do not claim otherwise. Once the full amount of rent demanded on the 3-day notice is accepted though, you can no longer continue with the case. Keep in mind that if you accept partial payment, a court may be more likely to grant a tenant’s motion for relief from forfeiture, ultimately allowing the tenant to remain in possession by paying all rent due.
2. Question:
I filed an unlawful detainer against my commercial tenant, and they just sent me proof of a bankruptcy filing. Can I continue with my eviction?
Answer:
No. You need to file a motion for relief from the stay in the bankruptcy court. Once you get relief, you can proceed with the eviction for possession only. You will not be entitled to a money judgment, unless the bankruptcy court permits it.
3. Question:
I am preparing a commercial lease for my client who owns the property. The landlord is concerned about her privacy and wants me to name the management company as the landlord. Should I do this?
Answer:
No. The owner of the property should be listed as the landlord. However, the property manager may sign the lease as an authorized agent of the landlord. Your client may want to consider creating an entity or filing for a fictitious business name if they are concerned about privacy.
4. Question:
I own a commercial property and one of the tenants has complained about the noise coming from an adjacent suite. Do I need to concern myself with this?
Answer:
Yes. As the landlord, you need to ensure that all your tenants have the right to quiet enjoyment. It is a balancing act, but you should ensure that the tenant being complained about isn’t making excessive noise. If so, it may be necessary to serve the appropriate notice.
5. Question:
My commercial tenant just moved out at the expiration of its lease. How much time do I have to inspect the property and send a security deposit disposition form?
Answer:
In commercial leases, the landlord is not required to send a security deposit disposition form, unless required in the lease. However, the return of the security deposit is governed by California Civil Code §1950.7.
- If the only amount due from the tenant is unpaid rent, then the landlord has 30 days to return the unused portion, with the exception that if the security deposit is in excess of one month’s rent, the portion of the deposit in excess of an amount equal to one month’s rent must be returned to the tenant within two weeks after the tenant vacates, with the remainder to be returned or accounted for within 30 days from the date the landlord receives possession of the premises.
- If the amount due to the landlord includes costs to clean or repair, the landlord must return the unused portion within 30 days.
These time frames may be modified in a commercial lease.
6. Question:
My commercial tenant moved out and left a lot of personal property. What should I do?
Answer:
You are required to post and send a Notice of Right to Reclaim Personal Property to the tenant. After 18 days, if the tenant hasn’t contacted you, you can dispose of the property if you reasonably believe the value is less than $2,500.00, or an amount equal to one month’s rent for the premises occupied by the former tenant, (whichever is greater). If it is valued above $2,500 or one month’s rent, you should hire an auctioneer to conduct an auction.
7. Question:
My commercial tenant is withholding rent because he is complaining that the plants outside his store are dead. Can he withhold rent for this reason?
Answer:
No. The covenant to pay rent is independent of the other covenants in the lease. You can legally serve a rent notice for the tenant’s failure to pay his rent. The tenant may sue for damages but can’t withhold rent.
8. Question:
My tenant signed a lease but never moved in. Should I file an eviction or serve a Notice of Abandonment of Real Property?
Answer:
The conservative approach is to file the eviction in order to obtain a judgment and have a sheriff lockout conducted. If you do not believe the tenant will return and rent is unpaid for at least two weeks, you may serve a Notice of Abandonment of Real Property, wait 18 days and then take possession. However, if the tenant returns, he will likely be permitted to re-enter the property as you do not have a judgment that specifies otherwise.
9. Question:
My tenant was evicted but still has 5 more years on his lease. Can I sue for the remaining term?
Answer:
Yes. You can file a complaint for breach of lease for the remaining term of the lease, but you have a duty to mitigate your damages by attempting to re-let the space.
10. Question:
The tenant and I agreed to increase the rent verbally. Do I need to put that in writing?
Answer:
Yes, any changes to the lease should be in writing and signed by both the landlord and tenant. Contact Kimball, Tirey & St. John LLP if you would like an attorney to draft a lease amendment for you.
11. Question:
I filed an eviction against my tenant but want to work out a payment plan. How do I do that?
Answer:
Your attorney can prepare a stipulation enforced by the court with the terms of your payment plan. If the tenant defaults, you do not have to start the eviction over, but your attorney can file court paperwork for a judgment and sheriff lockout.
Kimball, Tirey & St. John LLP is a full-service real estate law firm representing residential and commercial property owners and managers. This article is for general information purposes only. While KTS provides clients with information on legislative changes, our courtesy notifications are not meant to be exhaustive and do not take the place of legislative services or membership in trade associations. Our legal alerts are provided on selected topics and should not be relied upon as a complete report of all new changes of local, state, and federal laws affecting property owners and managers. Laws may have changed since this article was published. Before acting, be sure to receive legal advice from our office. For contact information, please visit our website: www.kts-law.com. For past Legal Alerts, Questions & Answers and Legal Articles, please consult the resource section of our website.
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