Temporary Leave?
Construction & Fumigation

Instructions to Leave

    You get a notice from the landlord that major construction is about to start, or that the building has to be fumigated, or perhaps the construction has already started. The notice instructs you to live someplace else for a while, so that they can get this work done. Often, the instructions include that you must bag your food, move your furniture, and otherwise make the place ready for the work to be done. You get little or not compensation for any of this, and the attitude is that you'd better obey, OR ELSE. Usually, they give you short notice, and expect you to hop to it. 

     Your mind is spinning. Are they kidding? How do they expect you to pay for that as well as rent? Where can you stay? What about meals? How long will it be? What about your personal property, and any theft or damage? What do you do about the kids' school, the computer, the phone, or the pets? It is outrageous, and you're not crazy to see that it is. In all but rare circumstances, such a demand is illegal and contrary to your contract.

     California's housing is aging. Pipes are choked with accumulated hard water minerals and grease. Buildings are infested with termites and cockroaches. Earthquake damage needs to be addressed. Electrical circuits are grossly under-wired. Roofs are rotted through, and stucco has developed leaks to invite moisture. Mold has invaded the walls. Many buildings like converted garages are discovered by inspectors to be illegal. There is no doubt that the work needs to be done, but there is hardly any law to deal with this event.  


The Right to Stay Put

     Absent special laws to deal with this type of situation, you don't have to move an inch. Nobody does. The entire group of tenants in your building can simply refuse to leave. Your rental agreement, whether monthly or a lease for some period, gives you the legal right to "quiet enjoyment." [Civil Code 1927] Until your tenancy is legally terminated through court, either by 30-day notice, expiration of the lease, or legal eviction for violation of some term, you have the right to continue living there. [Civil Code 1946.1]  Even rental agreements that purport to require you to move for such work are probably not enforceable. Asking you to move out without compensation, move your furniture or otherwise accommodate the landlord's plans is a breach of the implied covenant of good faith and fair dealing. [Kendall v. Ernest Pestana]  Ask the landlord, by what law or contract term does he have the authority to ask you to temporarily leave. He doesn't know. He's just so used to bullying you around, disrespecting your rights, and getting away with it, that he just felt empowered to ask the ridiculous.

     The sole exception to this right to stay put is where a special law exists to deal with it. In only a few cities like Los Angeles are there any laws which even address this situation. Under Los Angeles' rent control, the landlord CAN require the tenant to move temporarily, but only if the landlord finds and pays in advance for the hotel or other temporary accommodations, food, and incidental expenses, and the tenants have a defined return time. [LAMC 152] The process is tightly monitored by the City, and abuses are punished. The landlord has to give a 60-day advance notice, and file a Tenant Habitability Plan with the City.  IF the landlord complies in every respect with the LA rent control Major Rehabilitation laws, then a tenant who refuses to move out can be evicted for it; any step missed by the landlord voids the right to evict. 

    Another example of a special law is where the City [or County] has cited the landlord for uninhabitable conditions which the landlord has refused or failed to correct. [Health and Safety Code 17980.7(d) -see below] The government can require the landlord to pay for temporary relocation assistance to the tenants, including the higher rent at the temporary location, moving and packing all personal property, costs of moving machinery or equipment, and set a definite date for the moves, with the written right to re-occupy the unit after the work is completed. 

    Note that in both of these situations, the landlord's right to temporarily relocate the tenants is balanced with a responsibility to pay for all of the costs the tenants will incur. Under the 14th Amendment to the US Constitution, you cannot be deprived of life, liberty or property without Due Process of Law; here, that translates as the landlord must pay you properly to have a right to ask you to leave for a while.  


Construction While You Live There

    Some landlords just bring in the work crew and start working - hammering, sawing, jack-hammering, tearing the building apart - while the tenants are still occupying their units. It is as though you should quietly tolerate this racket, the physical removal of portions of the building, disruption of basic utilities, the dust and dirt, and workmen trampling through the property.  You and everyone else who lives there can stop them from doing this.

     The basic problem is nuisance -the noise, dust and dirt generated by the construction. Each tenant in the building can separately sue the landlord and the workers in small claims court for nuisance [Civil Code 3479 -see below]. You can additionally sue the landlord for breach of contract, based upon the uninhabitable conditions [Green v. Superior Court], the breach of the implied covenant of quiet enjoyment [Civil Code 1927], and the breach of the implied covenant of good faith and fair dealing [Kendall v. Ernest Pestana]. A lawsuit against the workers, their company, the contractor, and anyone else involved will most likely make them leave and not come back -who wants to be sued?  A lawsuit against the landlord for the small claims maximum of $7500 by each tenant will certainly make the costs of fairly dealing with you look a lot more attractive. Just 10 tenants each suing for $7500 is a $75,000 potential debt to the landlord. The small claims maximum is now $7500, and you get to trial in about a month. You can also file a claim in the Superior Court for an injunction [court order] to stop the work. 

    If the landlord is performing this work to drive the tenants out, such as in a rent controlled building where the landlord wants to jack up the rents to top dollar, Civil Code 1940.2 [see below] applies to prevent such tactics and impose penalties on the landlord of $2000 per act, in addition to actual losses. 

    The landlord may be doing this work without permits, or hiring unlicensed people, where the local Building Department inspectors can come out and put a Stop Work Order in place. Fines and even greater expenses await the landlord who gets caught doing that. Meanwhile, the work stops.

    To the extent that the work disrupts habitability, such as the water shut-offs and power cut-offs, or itself is disruptive of your basic living environment, you can probably withhold rent, due to the substantial uninhabitable conditions. That way, the landlord is not getting rent to pay the mortgage or pay for the construction, while having to face your lawsuits for the breach of contract, nuisance, and Civil Code 1940.2 violations.

   Sometimes, just talking to the workmen about your concerns may be enough to get them to postpone further work, since they may not want what they fear comes next, if they don't. They may have had problems in the past, where angry tenants interfered with the workmen, such as unplugging their machinery, getting in the way, moving things, blocking the workers' trucks, and otherwise disrupting their work. They can't continue in that environment, and may simply walk off the job until the landlord squares things away. Even if they aren't courteous, they may decide to be cautious and acquiesce to your request.

Weighing the Options

     What can the landlord do, particularly when faced with a mutiny by all of his tenants? All he wants to do is perform the work, whether fumigation or construction, but nothing can start. His notice may be one-sided, but the problem is that he can't move forward with his plans without either making you happy or hurting himself much more than he can you.

     There a practical time limits in motion. Construction has to be done during the summer months, and not the rainy season. Contractors and subcontractors have been lined up and signed up, based upon their availability, on a tightly regulated schedule. A week's delay in the process could throw off the whole project, and a couple of months' delay for an eviction could ruin the plans entirely. Construction money is already tied up, and the clock is running, whether the money is used or not. For fumigation, which is generally a condition of refinancing or sale and is not done otherwise, a postponement can similarly ruin the entire transaction, costing money in several areas. There may be an order from the City Inspectors or City Attorney to restore the habitability of the building or complete the work  by a given deadline. The landlord can't afford the delay caused by your not moving.

     Fumigators will not tent or even spray an occupied building, due to their extreme liability. Contractors may be concerned about tenants being injured, possible work interruptions, or themselves being sued, as discussed above, if they begin work while tenants are living there. So long as one tenant remains in possession, the entire project could be scrapped. If some tenants leave right away, they may return if nothing has been done, and refuse to move out again, creating alternating tenants in possession, only sporadically paying rent. The tenants can actually take turns leaving, so that they are complying, but not as the landlord contemplated. The landlord is left with chaos, no money, and ruined plans.

     Eviction is a possible solution for the landlord, but it involves even more delays, even greater expenses, and and empty building for a long time, during which the mortgage payments come entirely out of the landlord's pocket month after month, as well as the loan payments for the construction. It has to start with a 30-day notice, since there is no contract basis to evict.  Some tenants may move out right away, while others fight the eviction for months, so that nothing can be done until everyone is out. After the construction or fumigation is completed, the landlord has an empty building, and is desperate to fill it up, maybe with bad tenants.  Again, the landlord has an expensive lesson in people skills and the art of landlording.

    Against all of those expenses, the cost of simply doing the right thing is clearly better. Unless the tenants assert themselves, however, the landlord has no incentive to hand out money. Faced with a virtual mutiny of the tenants, the landlord clearly has no choice but to pay everyone what is necessary to proceed with his plan. 


How Much Do You Ask For?

     Often, the landlord offers a slight reduction in rent, or even free rent during that time, or a mere flat fee like $200 to "get lost."  The landlord says that's all you're going to get, until you make clear that his only real choice is to pay what it takes.

     Here are the costs for you to consider, when tallying up the amount of temporary relocation assistance that you will need:

Weekly rates at hotel or apt. Day care adjustments access to transportation spoiled food
Restaurant food [if no kitchen]  telephone forwarding packing and moving  lost work from moving
Parking expenses [if any] mail forwarding reconnecting computer insurance for personal effects
extra travel expenses new utility charges, if any reconnecting electronics cost of finding new place
pet boarding and care package delivery forwarding loss of use of rented unit storage of personal property

    To be out for a few days may not require all of this, but major rehabilitation such as re-piping, re-wiring, mold removal, structural corrections such as a roof, earthquake repairs, windows, flooring, and asbestos removal can take weeks. Some of these costs may apply both for the move out and the move back in. The above expenses could cost $2000 per week per unit, depending on the circumstances, particularly if the inconvenience of having to do it is added in. Do the math.

    If you can come to an agreement, BE SURE IT IS IN WRITING, SIGNED BY THE LANDLORD. It should specify when you need to be out, when you can come back, and provide expressly for payment up front, identifying the particular costs included, and who has the responsibility to do or pay for the item. The hotel accommodations or apartment should be a 3-way agreement, where the hotel agrees to ask only your landlord for payment, and will not kick you out if he doesn't pay. The accommodations should be comparable to your current living arrangements, not a slum motel. Some hotels have monthly rates for such relocation purposes.  


Further Help

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Health and Safety Code 17980.7(d):
(d) If the court finds that a building is in a condition which substantially endangers the health and safety of residents pursuant to Section 17980.6, upon the entry of any order or judgment, the court shall do all of the following:
(1) Order the owner to pay all reasonable and actual costs of the enforcement agency including, but not limited to, inspection costs, investigation costs, enforcement costs, attorney fees or costs, and all costs of prosecution.
(2) Order that the local enforcement agency shall provide the tenant with notice of the court order or judgment.
(3)(A) Order that if the owner undertakes repairs or rehabilitation as a result of being cited for a notice under this chapter, and if the conditions of the premises or the repair or rehabilitation thereof significantly affect the safe and sanitary use of the premises by any lawful tenant, so that the tenant cannot safely reside in the premises, then the owner shall provide or pay relocation benefits to each lawful tenant. These benefits shall consist of actual reasonable moving and storage costs and relocation compensation. The actual moving and storage costs shall consist of all of the following:
(i) Transportation of the tenant's personal property to the new location. The new location shall be in close proximity to the substandard premises, except where relocation to a new location beyond a close proximity is determined by the court to be justified.
(ii) Packing, crating, unpacking, and uncrating the tenant's personal property.
(iii) Insurance of the tenant's property while in transit.
(iv) The reasonable replacement value of property lost, stolen, or damaged (not through the fault or negligence of the displaced person, his or her agent or employee) in the process of moving, where insurance covering the loss, theft, or damage is not reasonably available.
(v) The cost of disconnecting, dismantling, removing, reassembling, reconnecting, and reinstalling machinery, equipment, or other personal property of the tenant, including connection charges imposed by utility companies for starting utility service.
(B)(i) The relocation compensation shall be an amount equal to the differential between the contract rent and the fair market rental value determined by the federal Department of Housing and Urban Development for a unit of comparable size within the area for the period that the unit is being repaired, not to exceed 120 days.
(ii) If the court finds that a tenant has been substantially responsible for causing or substantially contributing to the substandard conditions, then the relocation benefits of this section shall not be paid to this tenant. Each other tenant on the premises who has been ordered to relocate due to the substandard conditions and who is not substantially responsible for causing or contributing to the conditions shall be paid these benefits and moving costs at the time that he or she actually relocates.
(4) Determine the date when the tenant is to relocate, and order the tenant to notify the enforcement agency and the owner of the address of the premises to which he or she has relocated within five days after the relocation.
(5)(A) Order that the owner shall offer the first right to occupancy of the premises to each tenant who received benefits pursuant to subparagraph (A) of paragraph (3), before letting the unit for rent to a third party. The owner's offer on the first right to occupancy to the tenant shall be in writing, and sent by first-class certified mail to the address given by the tenant at the time of relocation. If the owner has not been provided the tenant's address by the tenant as prescribed by this section, the owner shall not be required to provide notice under this section or offer the tenant the right to return to occupancy.
(B) The tenant shall notify the owner in writing that he or she will occupy the unit. The notice shall be sent by first-class certified mail no later than 10 days after the notice has been mailed by the owner.
(6) Order that failure to comply with any abatement order under this chapter shall be punishable by civil contempt, penalties under Chapter 6 (commencing with Section 17995), and any other penalties and fines as are available

 

Civil Code 3479. Nuisance
Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.

 

Civil Code  1940.2. Unlawful Conduct to Influence Tenant to Vacate
(a) It is unlawful for a landlord to do any of the following for the purpose of influencing a tenant to vacate a dwelling:
(1) Engage in conduct that violates subdivision (a) of Section 484 of the Penal Code.
(2) Engage in conduct that violates Section 518 of the Penal Code.
(3) Use, or threaten to use, force, willful threats, or menacing conduct constituting a course of conduct that interferes with the tenant's quiet enjoyment of the premises in violation of Section 1927 that would create an apprehension of harm in a reasonable person. Nothing in this paragraph requires a tenant to be actually or constructively evicted in order to obtain relief.
(4) Commit a significant and intentional violation of Section 1954.
(b) A tenant who prevails in a civil action, including an action in small claims court, to enforce his or her rights under this section is entitled to a civil penalty in an amount not to exceed two thousand dollars ($2,000) for each violation.
(c) An oral or written warning notice, given in good faith, regarding conduct by a tenant, occupant, or guest that violates, may violate, or violated the applicable rental agreement, rules, regulations, lease, or laws, is not a violation of this section. An oral or written explanation of the rental agreement, rules, regulations, lease, or laws given in the normal course of business is not a violation of this section.
(d) Nothing in this section shall enlarge or diminish a landlord's right to terminate a tenancy pursuant to existing state or local law; nor shall this section enlarge or diminish any ability of local government to regulate or enforce a prohibition against a landlord's harassment of a tenant.

 

 

updated 8/3/14