Retaliatory Actions and Evictions

20 Replies

Not really asking for advice here but did want to share a recent situation. Newer tenant who signed a non-smoking agreement when he moved in was smoking pot. Another tenant complained of the smell. I gave newer tenant a warning notice that he was not allowed to smoke per his lease and this was a tenant complaint and a lease violation. The situation escalated rapidly.

I received a long and rambling message from him stating he has an anxiety disorder, has had breathing issues since moving into unit, his Ionic Breeze is covered in fungus or mold, says crack is being sold outside his apartment, warned there would be "legal problems" and wanted to meet. 

I texted him that I would be happy to meet the following day.

He texted back with a lengthy text that he did not want to meet with me, he feels singled out and harassed. Says we will speak after he has spoken to an attorney. He is contacting Adult Protective services and filing a formal complaint with HUD, Consumer Affairs, Better Business Bureau and Dept of Fair Employment and Housing. He also says I have corrupt business practices, he is a Christian and I owe him an apology. He will also be contacting my insurance company re meth heads on premise. He is suing the tenant who complained for libel even though he's not sure who complained. And he wants me to pay him to move out.

I gave it a day and wrote a text stating I am not aware of any illegal drug use on the property but if he is, please call the police and here is the number. I reminded him that he signed a non-smoking agreement and let him know that all he has to do if he is unhappy there is provide a 30 day written notice of his intent to move.  ( He's month to month. ) Short and sweet. 

Another long and rambling text stating that he will not be victimized by my dismissive attitude. He says he is honest and I'm a crook. Also demanding to know the name of the person who complained. At this point he is pissing off all the other tenants who want him gone because he's violating their right to a quiet and peaceful place to live. 

I'm pretty sure I can just give him a 30 day notice and be done with this nonsense but want to run it by the attorney. This is the kicker. Because of all of his threats and accusations I  should not give him the notice because the judge will view my actions as retaliatory. I have to wait six months since his last complaint otherwise my chances are slim to none that I will prevail. 

Giving a 30 day notice on a month to month lease is a right granted to both parties in the lease.  No reason or explanation for the notice is needed

512-293-3885

I am not sure where you are coming up with needing to wait six months. That is a benefit of having a month to month lease. Seems to me that by giving him a month’s notice you can get him out without needing to give him any reason. Perhaps consult an attorney if you will give you peace of mind but dragging it out six months when you have a month to month lease seems like madness to me.

@Christine Swaidan We have retaliatory eviction laws in my state as well - lots of gray area there. If it were me I'd give the tenant a 30 day notice and communicate with him as little as possible from now until the court hearing. The more you say the more ammunition you give him to use against you. If you do need to defend yourself in court on a retaliatory charge I'd say you acted on his initial breach of lease which was smoking in the unit. 

With that said, I'm not an attorney nor am I familiar with CA law. I'd find one who is and seek guidance from him/her.

Give the tenant a immediate 30 day notice. Although he is likely mentally unbalanced he will simply move since all his threats are posturing in a attempt to intimidate, and seems to have had a effect.

Get rid of him asap for the sake of your tenants.

Christine,

I think he's just "blowing smoke" (I couldn't help myself!!) lol

Yes, there are retaliatory rules in most states, so definetly hold with the non smoking issue and give him the thirty day notice of his month to month as of November 1st, if his lease is a calendar month

Kim Meredith Hampton, Real Estate Agent in FL (#BK0601196)
407-253-9324

Your first notice of the smoking violation was written and dated, right?  As long as you dated the violation, and kept a copy in the tenant file,  you are OK.  The tenant sounds crazy to me, and is clearly attempting to manipulate you with his threats.  I doubt it will come to anything.  Print out his text messages.  I use Quickbooks notes feature to record the date and time any legal notice is sent to a resident.  I use the date/time stamp feature in Quickbooks just to establish a legal time line of events.

As a nurse, I have had occasion to make referrals to Adult Protective Services.  The fact that he is making his own referral, only shows he has NO clue on how APS referrals work, and only shows he is attempting to intimidate you with bureaucratic agency initials.

If your tenant had needed a Fair Housing  accommodation to use medical MJ due to anxiety, it is on the tenant to provide a request for the accommodation before violating the lease agreement.  Plus, you would be OK in denying the accommodation as edible MJ would not be  a lease violation and is a reasonable alternative. 

I would be on the alert for testers calling from Fair Housing posing as potential tenants when you advertise your vacancy.  (This happened to me after a contentious lease non-renewal.  It turned out fine.)  Make sure you or your leasing agent is up to date on Fair Housing and don't let them trip you up over the phone.  (Smile in your voice, all are welcome to apply!)  

Stay strong.  You are in the right on this one.

This could be headed into a nightmare,, only because he's already threatened 2 times to himself retaliate.. 

If your not timid,, I'd frankly give him written notice today of non-renewal. A Full day prior to month end.. so he has full 30 day notice his lease will end Nov 30th.  YOU don't give reason, You just give notice of non-renewal.. IF he doesn't pay November rent,, then file for non payment.. after you give pay or quit..

Inform your attorney this is what you have planned.. if he says delay then that's up to you. Document, Save, print out all messages he texts or sends, and refrain from verbal phone contact. Physically meet him only with another person.

You also can call Adult protection / Social services and request a well check on this tenant that you are concerned he is acting irrational and wonder if he has a case worker that is working with him.

Honestly,, he sounds off the track.. how'd he get approved for this apartment.. 

Good Luck

Double Check you state landlord tenant laws first..

As long as you are following the law and not doing anything illegal or retaliating yourself, you're fine.  He may not go without a fight, but if he doesn't agree to quit, serve him with 30 days notice to vacate and then evict.

He can threaten with a layer all he wants but he is violating the lease and you have every right to get rid of him.  the moment he tells a lawyer what you are doing because he is smoking pot, no lawyer will take that on and if they do (a lawyer may take anything he can bill a client), no judge would side with him.

See if you can get neighbors to provide you written complaint about that tenant.  Then it proves, you are taking action in regards to complaints from other tenants.  Its your job to follow up on complaints.  You are not retaliating.  You can tell the judge to keep written complaints confidential for protect tenant's privacy.

@Greg H. I know I can give him a 30 day notice but the attorney I spoke to was not confident that I would win. I'm reluctant to spend money and create more hostility when I might have to have the guy around for a while. 

@Amy Beth six months is a California thing. I was mostly posting this tale of woe because I wanted to share this with other landlords. Good to have month to month leases but nothing is perfect. 

@Ryan Murdock I spoke to two attorneys. One said don't give him the notice and the other said it's iffy.

@Thomas S. I think he is upsetting enough of his neighbors that he may move. Yes, I think there are some mental issues, too. I am told a neighbor called the police to report him for annoying behavior. 

@Kim Meredith Hampton I don't want to give him a notice unless I can win.

@Bettina F. All notices were served properly and records are being kept. Thanks for the tip on testers. 

@Deanna McCormick I let him in. He's employed with an excellent credit score. I blew it!

@Justin B. I'm keeping an eye on him to make sure there is no more smoking. I'm not dropping this.

@Rick T. Great idea about having documentation for his issues with other tenants. 

Thanks, everyone for tips and support. I confess it has unnerved me. Just don't need this right now--but life goes on! I am not communicating with him and I am saving all texts just in case. Moving on to other projects. Starting a rehab on a big house that is long overdue for some tender loving care and doing a rehab on a 1+1. Both start November 1. It will be a busy month.

@Christine Swaidan

Are we missing something?  Your lawyer indicated you may not win what ?  You have a month to month lease that both have the option to terminate for ANY or even NO reason by giving 30 days notice correct ?  If a real estate lawyer thinks you might not "win" if you are taken to court, I suggest another lawyer

While I understand that California law can be friendly, I am not aware of how a tenant can challenge a 30 day termination.  If he fails to move out at the expiration of the 30 days he becomes a holdover tenant which typically incurs penalties and a higher burden to prevail in an eviction

512-293-3885

Christine,

I wouldn't let it go either.  However, I know you "don't need this right now" but this is just par for the course in real estate.  I have 42 units and I've had several evictions, a lady cut herself in her bathtub (attempted suicide), a tenant go to jail, tenants with drug problems (even trying to "distribute" within my unit, casually), just to name a few.  I'd suggest Property Management if dealing with these things keeps you up at night.  With a PM, you just direct them what to do.  They will deal with everything and all they really need is guidance.  Yes you give up some revenue to have that, but that is nothing compared to keeping yourself sane through all this.  I wish you luck and the community is always here to bounce ideas.

I lived in the Bay Area for six years and I was amazed at how unhealthy the people are there. Everyone had a medical marijuana card for anxiety, unspecified back pain, etc. etc.

I think some great advice has already been given here. I'd like to repeat that you should minimize (or really, cease) all communications back with him. I personally do think he is just trying to use intimidation, but still, don't give in and respond. 

305-537-6252

I agree with the above posters that you can give him a 30 day notice of non-renewal and get him out.  We've done that before.  And don't give a reason, because you don't have to.  This is exactly why you do a month to month lease.

One tip for next time, check references. We ask for past landlord references on our application and actually check them.  People don't magically start behaving this way.  I would bet you would have found out about this guy by talking with his past landlords and could have avoided the whole situation.  We've avoided some potentially bad tenant situations by calling their current landlord.  It's amazing someone would list a landlord reference knowing that they are 2 months behind on rent, but they do.

Good luck.

@Greg H. Fair question. I don't think you are missing anything. Here's the link to the California law. http://www.dca.ca.gov/publications/landlordbook/re...

It's not an exact fit in my case because my tenant was violating his lease no question about it. As I indicated, the first attorney said do not serve him the notice and the second said serve him but I may not get him out. If this guy continues to smoke we will move forward but for right now I am holding. 

@Justin B. Thanks for the support. Just knowing that I can turn over everything at anytime (I already have PM for the SFRs) makes it less stressful. (The fact that we had 2 deaths--natural thank God--two weeks ago in these apartments, 2 days apart, didn't even faze me!)

@Fred Heller I understand. He's not my only smoker but as far as I know he's the only one who is violating his lease re the smoking. I'm phasing in the non-smoking addendum as new tenants move in. 

@Nicole W. Thanks. I have ceased all communications at this point. 

@Wade Sikkink Guilty as charged. I did not check his references. I'm still kicking myself. 

I was just trying to lighten the mood. If the lease says no smoking that means no smoking and he's in violation.

I seem to recall some cities in California passing laws that made it illegal to smoke inside any multi-family building. I know several in the Bay Area passed laws like that.

@Justin B. Thanks for the support. Just knowing that I can turn over everything at anytime (I already have PM for the SFRs) makes it less stressful. (The fact that we had 2 deaths--natural thank God--two weeks ago in these apartments, 2 days apart, didn't even faze me!)

Crap. Just lost another tenant at 5am today. This is a 55+ complex with 70 units so not completely unexpected and the guy had been ill for over a year. 

Originally posted by @Christine Swaidan :

@Greg H. Fair question. I don't think you are missing anything. Here's the link to the California law. http://www.dca.ca.gov/publications/landlordbook/re...

It's not an exact fit in my case because my tenant was violating his lease no question about it. As I indicated, the first attorney said do not serve him the notice and the second said serve him but I may not get him out. If this guy continues to smoke we will move forward but for right now I am holding. 

@Justin B. Thanks for the support. Just knowing that I can turn over everything at anytime (I already have PM for the SFRs) makes it less stressful. (The fact that we had 2 deaths--natural thank God--two weeks ago in these apartments, 2 days apart, didn't even faze me!)

@Fred Heller I understand. He's not my only smoker but as far as I know he's the only one who is violating his lease re the smoking. I'm phasing in the non-smoking addendum as new tenants move in. 

 The statute referred to deals with retaliatory evictions not with terminating a month to month lease.  A month to month lease gives either party the right to terminate with 30 days notice.  No reason needs to be given or established.  Terminating the lease has zero to do with an eviction

512-293-3885

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