Q&A

Is tenant who moved out after four days entitled to her money back?

A tenant who moves out after only four days asks for her money back, but the law is on her landlord's side

Question: I own a duplex, live in one of the units and rent out the other unit. Since the tenant is living right next to us, we have adopted an extensive selection process.

Using this process, we picked an applicant and allowed her to move into the unit after she gave us the first month's rent and security deposit. She was supposed to sign a one-year lease, but we never got around to that.

Instead, after four days she decided the arrangement would not work for her, and she moved out without notice. She told me that since she didn't sign the lease and since she didn't stay more than 30 days, the law says she was not required to give notice. She then demanded that we return her rent and full deposit immediately. Is there such a law?

Answer: There is no such law. Since this tenant never signed the lease, you probably will have difficulty enforcing it. But once she paid rent and moved in, she became a month-to-month tenant, regardless of the length of time she stayed in your house.

As a month-to-month tenant, she is required to give you a 30-day written notice of termination, and she is responsible for rent during that 30-day period, whether she stayed there or not. Based on this analysis, you are entitled to keep the first month's rental payment you received.

The deposit protects you against any other losses, such as damage to your unit. You are required to account to her for the deposit within 21 days after she physically vacated; and if there are no other losses, you should refund the full deposit within that time period. Contact your local mediation program for more information.

Caretakers can be kicked out

Question: I am the family trustee for my elderly father. He is in his 80s, and he insists on continuing to live in his home of 40-plus years. However, he has advanced arthritis, which means he needs some kind of live-in care.

I hired a caretaker two months ago who was recommended by a family friend. I am now unhappy with the care she is giving my father. I don't want to make accusations, but I want to remove her as soon as possible. I am worried that I might get sued if I tell her to leave immediately. What are the rules in this situation?

Answer: As a general rule, an adult who lives in a house or apartment with the permission of the owner for more than 30 days becomes a tenant. As a tenant, that person can be removed only pursuant to proper notice of termination of tenancy, and an eviction action in court — if there is no voluntary departure.

However, caretakers are one of the exceptions. Unless the caretaker has a separate, written rental agreement, he or she is an employee, not a tenant, and can be discharged without notice. However, there is still a dilemma if the caretaker fails to leave voluntarily after being discharged.

Technically, this person becomes a trespasser by remaining after being discharged, and if you find yourself in this situation you should check with your local police department to see if they will remove her.

Some local police don't like to get involved in what they consider to be a "civil" matter, in which case you will have to take further action. If there is credible evidence that the caretaker has been abusing your father, you can apply to the local superior court for an elder abuse restraining order, commonly called a "kick-out" order.

Many counties in California have restraining-order clinics or self-help centers that will help you with the paperwork if you have an appropriate case.

Every county also has an adult protective services agency that would respond to an abuse complaint. If none of these remedies work for you, your last resort may be to retain an eviction attorney to file an unlawful detainer lawsuit. Even if the caretaker is not truly a tenant, if she is unlawfully remaining in the premises, this lawsuit is the only remaining option to remove her.

For more information, contact a local fair housing or mediation program, or Project Sentinel at (888) 324-7468, or visit http://www.housing.org.

Van Deursen is director of Dispute Resolution Programs for Project Sentinel, a San Francisco Bay Area nonprofit. Send questions to info@housing.org.

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