Landlord/Tenant Law Legal Topics Real Property Law

Remedies for a Lurking Landlord

96162069Some landlords just can’t let go; they pop into their rented premises unexpectedly under a misguided belief that it’s somehow their right as owner. Not so. A landlord’s right to enter premises occupied by the tenant is strictly circumscribed under California law. But unfortunately for tenants, redress for illegal landlord entry is hard to come by.

California law against illegal entry by landlords is clear: Civil Code §1954 states the limited reasons for which the  landlord may enter a rented property, the hours during which the landlord may enter, and the options for giving advance notice before entering. Nevertheless, illegal entry by landlords continues to be a common problem for tenants. Perhaps it’s because the only express statutory remedy for illegal entry limits recovery of damages and penalties to a “significant and intentional violation of CC §1954.” CC §1940.2.

So here’s the rub for tenants: they have to prove an intentional violation, which is difficult and usually not feasible financially because potential damages are generally not enough to warrant the costs of a lawsuit.

Given these difficulties, tenant’s attorneys should consider alternatives that may succeed in ending the illegal entries for little cost, including the following:

  1. Letter to the landlord. The tenant’s attorney can send the landlord a letter that (1) explains CC §1954 (with a copy of the statute enclosed), (2) points out the landlord’s potential liability for violation, and (3) puts the landlord on notice that the tenant may take legal action if the violations continue.
  2. Small claims action. The tenant can sue the landlord in small claims court for damages for past violations of CC §1954. Although small claims courts have no authority to enjoin future violations, a modest damages award might persuade the landlord to stop violating the statute.

But filing suit might be worth considering if

  • the violations are clear on the facts,
  • there is clear evidence that the landlord was warned and ignored the warning, and
  • the lease or rental agreement provides for attorney fees (even if the agreement provides for fees only in favor of the landlord, a tenant who prevails may be able to recover fees under CC §1717).

If, despite warnings in writing from the tenant, the landlord again violates §1954, the tenant can sue for damages or, in the case of a continuing violation, for injunctive relief. In addition to relief under CC §1940.2, one or more of the following causes of action might be invoked in repeated, extreme, or abusive situations, although there are no reported decisions approving their use for a violation of CC §1954:

  • breach of implied covenant of quiet enjoyment if landlord’s illegal entry physically interferes with tenant’s use;
  • invasion of privacy;
  • relief from harassment under CCP §527.6;
  • trespass;
  • intentional infliction of emotional distress; and
  • a derivative statutory tort based on CC §1954 itself.

Don’t forget that this is your client’s home we’re talking about. Before recommending or pursuing any remedy, consider the risk of making the landlord angry. If the tenant has no lease, and if no local ordinances restrict evictions, the landlord might respond with a notice to vacate or a notice that the tenant’s rent will be increased. Although CC §1942.5(c) appears to prohibit such retaliation, litigating the point may be more than the tenant could handle and may be risky.

For more expert advice when counseling tenants or landlords, turn to CEB’s California Landlord-Tenant Practice. On the commercial side of landlord-tenant law, check out CEB’s program Commercial Landlord-Tenant Disputes, available On Demand.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

Add your comment to the blog post

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s