Legal Corner Q & A

The Quandary of an Abandoned Unit

by Various Authors

Q. I am a one-third owner of a tenancy-in-common apartment building. My partner refuses to give me a copy of the keys or any accounting of the building’s finances and refuses to buy me out of my share. What can I do?
A. From your question, I am assuming that you are on the deed to the building and not really a partner. The legal rules for partnerships and partners are different than those for Tenancies-in-Common (TICs). If you are a partner, you do not own an interest in the property itself.

I hope that you have a comprehensive Tenancy-In-Common Agreement (TICA) that specifies your rights and responsibilities for the property, including rights to possession, management, decision making and the right to look at the books. Usually in a TICA, any owner has the right to look at the books and records. One of the most important provisions of a TICA is a waiver of partition. It usually states that, under certain circumstances, if one owner wants out, he/she must first offer it to the other owners; and there is a mechanism for determining the price and a procedure for the sale. Usually there are provisions for taking advantage of alternative dispute resolution (ADR), such as mediation. The owners would have to use ADR before filing a lawsuit. A TICA usually includes an attorney’s fee provision that provides, if you have to go to court or arbitration to enforce your rights under the TICA and you win, you can recover your fees from the other owner. This fee provision can help you persuade the other owner to be reasonable and comply with his/her obligations.

If you do not have a TICA, you will discover the process is more complicated and expensive. Even without a TICA, you are still a TIC, but subject to the rights and responsibilities implied for a TIC under California law. For example, without a TICA or some other waiver of partition, any owner can go to court and force a partition of the entire property. For an apartment building, a court would order the sale of the entire property. That might be good leverage against the uncooperative owner to be reasonable. Without an agreement, you cannot force another owner to buy you out or vice-versa. Also, absent a TICA, any owner (even one that owns one percent) has an equal right to possession of the entire property. This could create a ridiculous situation—you might even base a screenplay on this scenario. Without a TICA, no owner could exclude another from the property. If you are ousted by the other owner, after demand for entry and refusal, you could go to court to recover both possession and damages for your share of the value of use or occupation of the property from the time of the ouster. Court decisions have held that if all the owners bought the property together at the same time, there would be a fiduciary duty between the owners. In a partition or other action, you should also be able to force an accounting of rents and profits for the building. The law on this matter is complicated, so make sure you retain experienced counsel to assist you.
– Lawrence M. Scancarelli

Q.We have a unit that the tenant appears to have apparently abandoned—with everything in it. We served a Three-Day Notice to Pay Rent or Quit two months ago and have not seen anyone coming or going. What do we do?
A. You, as the landlord, may do several things when you observe that your tenant has apparently abandoned a rental unit. You may serve the tenant with a Notice of Belief of Abandonment. Such a notice may be served when the rent has been due and unpaid for 14 consecutive days, and you also believe that the tenant has abandoned the rental unit. The abandonment notice should be served by regular mail to your tenant at the rental unit and at any other address(es) where the tenant would reasonably receive it (such as his/her place of employment or at the parents’ home).

The abandonment notice expires after 18 days from the day it is served by mail. After the 18-day period expires, you as the landlord, can personally enter the rental unit and change the locks. Any personal property left behind at the rental unit cannot simply be disposed of by the landlord, but must be handled in accordance with separate statutory notice requirements. At least now you will have possession of the rental unit.

However, if prior to the expiration of the 18-day period, the tenant provides the landlord with a written statement indicating that he/she does not intend to abandon the rental unit and provides an address at which the tenant may be served by certified mail, then the rental unit will not be deemed abandoned, and you cannot enter the rental unit and change the locks after this 18-day period. Your tenant, however, is not excused from his/her obligation to pay the rent.

You may also commence an unlawful detainer action against your tenant for nonpayment of rent. When a valid Notice to Pay Rent or Quit is properly served, and your tenant fails to comply with the notice, then you are entitled to commence an unlawful detainer action (eviction action) against him/her in Superior Court.

This process may be a little more onerous, time-consuming and expensive than the abandonment process. The significant benefit of this process, however, is that you can probably obtain a default judgment against your tenant, thereby authorizing the sheriff to restore possession of the rental unit to you with the blessings of the court. In other words, this process may result in a final court judgment against your tenant.

Last, regardless of whether you choose to serve an abandonment notice or to commence an unlawful detainer action, you may also choose to contact any interested party (such as the tenant’s employer or parents) regarding the tenant’s whereabouts. Something serious may have happened to the tenant (like hospitalization) and, in this case, the rent will immediately be paid if the right person is notified. In any event, you should consult with an attorney to decide which option is best for your situation and to ensure compliance with all statutory requirements.
– Steven C. Williams

Q. Who pays for the replacement of a light bulb in a tenant’s apartment? We have a grumbling tenant who believes the owner is responsible.
A. Generally a landlord’s duty to repair is confined to his/her duty (1) to keep the tenant’s unit in tenantable condition under Civil Code Section 1941 and (2) to continue to provide all housing services provided since the inception of the tenancy.
Civil Code Section 1941 deals with more serious obligations of the landlord to provide heat and water, to clean common areas, to maintain proper electrical and plumbing systems and the like. The replacement of a light bulb would not be an obligation under Section 1941. Thus, the landlord is not responsible for replacing the lightbulbs. The replacement of a light bulb could possibly be considered a housing service, but in my opinion, this is doubtful. As an item that is known as disposable, its replacement is more correctly characterized as a maintenance task undertaken by the tenant.
– Jeffery P. Woo

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine.
The nformation contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Lawrence M. Scancarelli can be reached at 415-398-1644, www.sfrealestatelaw.com. Steve Williams is with Wiegel & Fried, LLP, 415-552-8230. Jeffery Woo is with Woo & Associates, 415-705-6470, www.mypropertyrights.com. Copyright © 2004 by the San Francisco Apartment Magazine. All rights reserved.