Let's face it, listing a tenant occupied property can pose challenges as many tenants are not particularly happy about the prospect of having to move. When I look at the MLS showing instructions for tenant occupied properties, I wonder what arrangements the listing agents have with the tenant. Many listings only show that the property is tenant occupied, a telephone number for the tenant and instructions to call the tenant directly to arrange for an appointment. We all have left messages for tenants and never received a call back. We quickly blame the tenant for not being cooperative. The reality is, the tenants don't have an obligation to respond to telephone calls from other agents wanting to show the property to prospective buyers.
A landlord's right to enter a residential (or non-residential) property during the period of the tenant's right to occupy the premises is severely limited. The landlord's right of entry Entry is governed by California Civil Code section 1954:
"(a) A landlord may enter the dwelling unit only in the
following cases:
(1) In case of emergency.
(2) To make necessary or agreed repairs, decorations, alterations
or improvements, supply necessary or agreed services, or exhibit the
dwelling unit to prospective or actual purchasers, mortgagees,
tenants, workers, or contractors or to make an inspection pursuant to
subdivision (f) of Section 1950.5.
(3) When the tenant has abandoned or surrendered the premises.
(4) Pursuant to court order.
(b) Except in cases of emergency or when the tenant has abandoned
or surrendered the premises, entry may not be made during other than
normal business hours unless the tenant consents to an entry during
other than normal business hours at the time of entry.
(c) The landlord may not abuse the right of access or use it to
harass the tenant.
(d) (1) Except as provided in subdivision (e), or as provided in
paragraph (2) or (3), the landlord shall give the tenant reasonable
notice in writing of his or her intent to enter and enter only during
normal business hours. The notice shall include the date,
approximate time, and purpose of the entry. The notice may be
personally delivered to the tenant, left with someone of a suitable
age and discretion at the premises, or, left on, near, or under the
usual entry door of the premises in a manner in which a reasonable
person would discover the notice. Twenty-four hours shall be
presumed to be reasonable notice in absence of evidence to the
contrary. The notice may be mailed to the tenant. Mailing of the
notice at least six days prior to an intended entry is presumed
reasonable notice in the absence of evidence to the contrary.
(2) If the purpose of the entry is to exhibit the dwelling unit to
prospective or actual purchasers, the notice may be given orally, in
person or by telephone, if the landlord or his or her agent has
notified the tenant in writing within 120 days of the oral notice
that the property is for sale and that the landlord or agent may
contact the tenant orally for the purpose described above.
Twenty-four hours is presumed reasonable notice in the absence of
evidence to the contrary. The notice shall include the date,
approximate time, and purpose of the entry. At the time of entry,
the landlord or agent shall leave written evidence of the entry
inside the unit.
(3) The tenant and the landlord may agree orally to an entry to
make agreed repairs or supply agreed services. The agreement shall
include the date and approximate time of the entry, which shall be
within one week of the agreement. In this case, the landlord is not
required to provide the tenant a written notice.
(e) No notice of entry is required under this section:
(1) To respond to an emergency.
(2) If the tenant is present and consents to the entry at the time
of entry.
(3) After the tenant has abandoned or surrendered the unit."
For purposes of showing property to prospective buyers, there are essentially two authorized methods [section 1954(d)(1) & (2)]. The landlord can give reasonable advance written notice for each intended entry or provide the tenant with a 120-day "For Sale" notice. It's the landlord's choice which method should be used. 24-hour advance notice is considered reasonable absent evidence to the contrary. Having to give 24-hour advance written notice for each entry to show does not appear very practical as each of the notices has to be served by the seller/landlord or his manager either personally on the tenant or on an occupant of the unit of suitable age and the ability to inform the tenant of the notice or by posting the notice on or near the entrance to the unit or leaving it under the door. It can also be mailed by regular mail or certified mail, but if mailed, six days must pass before the time for entry can occur. You can see that having to go through this procedure for every entry may not be practical.
The landlord's alternative to the reasonable advance written notice is a 120-day "For Sale" written notice [section 1954(d)(2)]. The "For Sale" notice (C.A.R. form NSE) may be given to the tenant personally or by regular mail at any time after the seller enters into a listing to sell the property. The "For Sale" notice commences a 120-day period during which the seller or the seller's agent may, on 24-hour notice by phone to the tenant, enter the unit during normal business hours with a prospective or actual buyer to conduct an inspection of the unit. I think it is important to uunderstand that only the landlord and the landlord's agent is authorized to enter to show the property to buyers and only the landlord and his/her agent may call the tenant to notify the tenant of a showing. If an agent other than the listing agent wants to show the property to a prospective buyer, the buyer's agent must arrange for the listing agent to give 24-hour advance telephonic notice to the tenant. An argument could be made that an agent from the same brokerage as the listing agent would be considered the landlord's agent for purposes of section 1954(d)(2).
Please, also note that the right of entry is limited to reasonable business hours. Unfortunately. it is not clear what constitutes reasonable business hours. Are reasonable business hours Monday - Friday from 9 a.m. to 5:00 p.m. only or can you show on weekends? It's best to have a written agreement with the tenant.
Last, but not least, don't forget that the actual entry is conditioned on the landlord or agent leaving a written note in the unit regarding the entry. "At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit" (last sentence of section 1954(d)(2)). Leaving a business card will most likely suffice.
So, what does all this mean in the real world? I think it is imperative to understand how important it is to follow proper procedures to avoid being subject to claims by the tenant that his/her tenant rights were violated. For buyer's agents it is important to know that the telephonic notice to the tenant has to be done by the listing agent unless the tenant agreed in writing that buyers' agent can call him/her directly. Many MLS systems allow for documents to be uploaded and I would recommend the listing agent upload the tenant's written authorization to be contacted by buyer's agents directly. I have encountered listing agents who told me to just call the tenant directly and when I asked if the tenant authorized it in writing, they thought I was crazy for even asking. If a listing agent wants to deviate from the procedure set forth in section 1954, get it in writing. If you don't have it in writing, be prepared to follow the procedure to the T, which means that the landlord or his/her agent not only need to give the oral notice him/herself, but the landlord or agent must also be present at the time of the showing. Do yourself and your fellow agents a favor by following the proper procedures. Entering a tenant occupied unit without proper notice and tenant consent could have very unpleasant consequences.
Don't forget to leave your business card. It's not just professional courtesy. It serves as written note of entry required by section 1954.
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