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What do you do when you have a residential property owner that wants to sell their property, but has one problem - a tenant who wants their privacy and to have quiet use and enjoyment of their real property during the terms of their lease? As a real estate agent or broker, you want a commission check, and you need access to the property so you can take pictures and market the property through open houses (open houses normally occurring on the weekends).
The California case of Dromy v. Lukovsky helps answer a few questions in this regard, and I will try to help you understand the main points of the case.
Dromy v. Lukovsky 219 Cal. App. 4th 278 (2013)
This was an interesting recent California real estate decision out of the 2nd District Appeals Court (Los Angeles) which involves an owner trying to sell their property, and a tenant who wanted quiet use and enjoyment and was not completely amenable to the concept of having an open house conducted on the leased premises during the weekends. At issue was the language set forth in California Civil Code Section 1954 which discusses when a landlord may enter a dwelling in California.
The landlord wanted their real estate agent to be able to have access to the property to market to prospective buyers on weekdays, but also weekends. The tenant took issue with that, and argued that "normal business hours" allowing the landlord to access the property, did not include Sundays.
The tenant argued a right to quiet use and enjoyment of the property, and the landlord (by and through their real estate agent), argued normal business hours for real estate agents included the weekends, and their agent gave a declaration to this effect.
Since the parties could not reach an agreement on the issue, the landlord filed a "declaration relief" complaint seeking the court to declare the respective legal rights and obligations of the parties to the lease agreement, and pursuant to the meaning of CC 1954 (cite below). The Declaratory relief action was brought under California Code of Civil Procedure Section 1060 which states:
“Any person interested under a written instrument, excluding a will or a trust, or under a contract, or who desires a declaration of his or her rights or duties with respect to another, or in respect to, in, over or upon property, or with respect to the location of the natural channel of a watercourse, may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought.”
The Court's Ruling
The trial court found in favor of the landlord, and agreed that Section 1954 allows reasonable access to the premises during normal business hours, which the Court agreed would include Monday through Friday 1:00-4:30, and also included the weekends. The Court required, for weekend showings, that the realtor give 10 days written notice (email) to the tenant, and that the tenant respond within 48 hours to agree, disagree and provide alternative times and dates. The Court ruled that given the privacy issues raised by the tenant (who was concerned that personal things were gone though) that the landlord could only show up with their real estate broker present. The Court felt like such an approach was proper and struck the appropriate balance between the free alienability of real estate (i.e. the right to sell and transfer real estate) versus the right for a tenant to realize the quiet use and enjoyment of their property, which is implied in every lease, and can result in a “constructive eviction” where that right is breached.
Such a ruling shows there is some flexibility in the terms of section 1954, and the Court said if they legislature wanted to prohibit access to the property on Sundays, the legislature could have wrote that into the law.
California Civil Code Section 1954 (Landlord access to leased premises)
Here is what the code section says:
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
Court holdings and takeaways from the Dromy case:
1. Try to work things out between landlord and tenant in regards to a property seller and agent that want to list and market a property for sale in California.
2. It is reasonable and customary that properties that are up for sale (a landlord has a legal right to sell their property), be subject to an OPEN HOUSE ON SUNDAY. But this needs to be confirmed with the tenant in advance, and always best to get the written consent in WRITING so that you have the evidence.
3. If you cannot get a tenant to voluntarily agree to grant the owner and real estate broker access to the property, a complaint seeking Declaratory Relief can be one avenue to explore.
For more information visit CommissionCollege.com or call a California Real Estate Lawyer.
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