Once a property owner has entered into a rental agreement with a tenant and has handed over the keys, the tenant has the exclusive right to possession of the dwelling unit. Moreover, when tenants enter into the rental agreement, the owner agrees to provide the premises (in a habitable condition) in exchange for the tenant’s obligation to pay the rent and comply with the terms of the agreement. But what happens when the unit must be vacated for a short time during an ongoing tenancy to allow for maintenance or repair?
As a general rule, when a unit must be temporarily vacated, the owner is not entitled to receive rent from the tenant. In other words, payment (rent) cannot be collected for something that cannot be provided (the dwelling unit). Depending on the circumstances, additional compensation from the owner to the tenants (relocation costs, incidentals, etc.) may be appropriate. This depends primarily on who caused the problem that necessitates the unit be temporarily vacated.
Why Does Fault Matter
Determination of fault is an important factor to ascertain the extent of the obligation to compensate the tenant who must be relocated. Although the property owner is not the guarantor of the tenant’s continued shelter, if the problem that requires the unit to be vacated was caused by the owner’s negligence, the owner may be held responsible for providing comparable replacement housing during the repairs. This responsibility may include incidentals such as meals, if there are no cooking facilities at the alternate housing and boarding for pets. By contrast, if the problem is not the result of the owner’s negligence, the tenant may only be due a rent rebate from the owner.
Whose Fault Is It Anyway
A variety of situations may require the unit to be vacated in order for repairs to be made, including flooding of the unit, fire damage, pest fumigation, etc. Even the most diligent rental property owner may experience unanticipated events (extreme weather, fire, etc.) that necessitate access to an empty rental unit for maintenance or repair. In addition, there may also be times when specific conduct (or lack thereof) by the tenant, the owner, or other residents may result in the need for the unit to be vacated for repairs. Determining the appropriate level of compensation for the displaced resident will depend on which party, if any, is at fault.
The following situations illustrate when an owner may be found negligent and/or maybe held responsible for providing relocation assistance:
- ● Termite fumigation is necessary because the building owner placed mulched garden beds right up next to the building without an appropriate termite barrier;
- ● Water damage results from lack of attention to rain gutters, allowing them to become filled with leaves and debris which caused water to back up into the attic;
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● Failure to repair known damage to roof, which resulted in water damage.
The following examples show damages caused by a tenant or other third party where the owner may not be responsible for relocation assistance:
- ● Fire damage caused by tenant or third party unrelated to owner.
- ● Damage from earthquake, not exacerbated by defective conditions on the premises.
These are just a few examples where specific conduct caused or exacerbated the damage. The list is clearly not exhaustive and owners are urged to be prudent when making this determination. In many circumstances, fault may not be clear or is subject to dispute. The owner should work out a reasonable agreement with the tenant regarding relocation. Memorializing the agreement in writing is often more productive than arguing fault.
Rebating Rent & Paying Relocation Costs
Daily rent is calculated as 1/30 of the monthly rent value. In a no-fault scenario, the owner would simply rebate the daily rent for the number of days (or partial days) the tenant must be out of the unit.
If the owner is at fault for the condition necessitating relocation, the owner is responsible for the cost of comparable alternate housing and incidentals (describe), less the daily rent.
As a practical matter, the owner may pay the tenant the daily rent to help cover their expenses during relocation.
Total Destruction of the Unit
Thus far, this Insight has considered the obligation due when a unit must be temporarily vacated. There are instances, however, where damage is so extensive that the unit becomes uninhabitable.
Under California law, total destruction of the premises cancels the rental or lease agreement. When the agreement is cancelled, the tenant’s obligation to pay rent ceases, and the landlord’s obligation to provide housing is extinguished.
Notice Prior to Entry
Before entering a dwelling unit to perform maintenance or repairs, the owner must give the tenant reasonable notice in writing of his or her intent to enter. The notice must include the date, approximate time, and purpose of the entry. If additional entry is required, either before or after the tenant’s relocation, a second notice to enter may be required.
A Word about Rent Control
The general advice provided in this Insight does not apply to rent control areas. In those communities, the property owner’s obligation for temporary relocation will be set forth in the local rent stabilization ordinance. Property owners in these areas should check with their local rent control board to determine what steps they must take when a unit must be temporarily vacated to facilitate maintenance or repairs.
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Related Items and Information
- California Civil Code Section 1933(4).
- Notice to Enter Dwelling Unit – CAA Form 19.0
- Tenant Service Request – CAA Form 24.0 and 24.1
- Pest Control Notice Addendum – CAA Form 2.6
- Maintenance Door Tag – CAA Form 44.0
- CAA’s Industry Insights – Entering the Rental Unit
- CAA’s Industry Insights – Notifying Tenants When Spraying Pesticides on the Property
- CAA’s Industry Insight – San Francisco Temporary Tenant Relocation Benefits
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