Legal Fees Clause Cuts Both Ways
QUESTION: As a property owner, I try to keep current with all aspects of landlord-tenant rights and responsibilities. Several of my friends say my rental agreements should not contain a clause that requests attorney fees if a tenancy ends in a court action. What do you think?
ANSWER: A clause that allows for attorney fee compensation may benefit your tenants more often than it benefits you. If your agreement allows for reimbursement of reasonable legal and court costs and you are successful in court, you may have difficulty collecting the judgment if your tenant has few assets. However, if you lose and have attachable assets (for example, real property or bank accounts), the chances of the other party collecting from you are very good. Also, if there is a compensation clause and you do not retain an attorney, you may end up paying your tenant’s legal costs should he or she win, but if you should win, your tenants won’t have to pay your costs because you didn’t have an attorney.
So the choice is yours. If you don’t want to pay the tenants’ legal costs should they win, remove the clause from your agreements. But if you want to be reimbursed for legal fees should you win, keep the clause. However, court may not be your only choice. You may want to add a mediation clause to your rental agreements; you may also contact your local housing mediation program for assistance in resolving a housing matter before pursuing legal action.
Under Law, Landlord Can’t Harass Tenant
Q: I recently gave my landlord a 30-day notice of termination of tenancy. Ever since, he has repeatedly entered the apartment without warning, and has threatened to lock me out and change the locks. Once he came to the door with his son, who looks like a fullback, and said, “You better get out soon.” What can I do and what are my rights?
A: You are entitled to the peaceful enjoyment of your unit until your tenancy terminates. The landlord must not interfere with that peace and must comply with all laws regarding your access to your unit.
It is illegal for a landlord or his representatives to enter a tenant’s home without providing an advance notice that states the time and purpose of entry. The only instance in which a landlord can lock out a tenant is with a court order and with the supervision of the sheriff. Otherwise, a landlord cannot threaten to force out or lock out the tenant.
A landlord who ignores the tenant’s right to privacy can be sued by the tenant for trespass and even emotional distress. A court may award you damages for your inconvenience, emotional distress, the cost of property illegally removed by the landlord or stolen by third parties and for your loss of the use of the premises. The judge may also award you punitive damages.
If you can’t persuade the landlord to end this behavior, contact your local mediation service for assistance or contact an attorney or the police if mediation is refused by the owner.
Pact Signed in Haste Is Repented at Leisure
Q: I recently rented a room in a private home. The owner wanted me to sign a rental agreement, and since I was in a hurry and wanted to secure this rental, I signed the agreement without reading it thoroughly.
There are several questionable clauses in the agreement, but the one that bothers me the most states that “this rental agreement is a six months to one year term only.”
As I may want to leave before one year, what is my status as far as the length of my lease?
A: Based on what you have described, you probably do not have a lease but do have a month-to-month rental agreement.
The terms of a lease cannot be vague. The beginning and ending dates must be clearly indicated, which is not the case here. As you obviously have some type of agreement, the fall-back is a month-to-month (based on the time between payments), which either you or your landlady can terminate with a written 30-day notice.
For assistance in working with the landlady when you decide to move, you can contact your local housing mediation program.
In the future, be sure to check rental agreements--or anything else you sign--carefully to avoid a recurrence of this kind of problem.
This column is prepared by Project Sentinel, a rental housing mediation service in Sunnyvale, Calif. Questions may be sent to 1055 Sunnyvale-Saratoga Road, Suite 3, Sunnyvale, CA 94087, but cannot be answered individually.
For housing discrimination questions, complaints or help, call the state Department of Fair Housing and Employment at (800) 233-3212 or the Fair Housing Council in your area:
Westside Los Angeles, call (310) 477-9260.
San Fernando Valley, call (818) 373-1185.
Pasadena, call (626) 791-0211.
El Monte, call (626) 579-6868.
Orange County, call (714) 569-0828.
San Bernardino County, call (909) 884-8056.
San Diego County, call (619) 699-5888.