Are we within our right to sue for the cancellation of the lease?

10/25/2007 - Landlord Tenant - State: CA #10931

Full Question:

We leased a house and with 2 months left on the lease, I was transferred (work) and moved into company housing, but we have kept paying our rent as we should. We were informed by the property manager that we would be released from our lease if they could find someone to rent the house, so we gave the property manager permission to show the house to prospective tenants and she did not need to call us.The problem is that once we had moved almost all of our stuff out, the owner had entered the house on numerous occasions without telling us. Toward the end of the month, we did a walk-through with the property manager and asked her to ask the owner not to enter the house without notice until either A) we were released from the lease, or B) there was an emergency. At the conclusion of the walk-through, we left a step-stool behind to remove some horseshoes off the wall above two doors and, in agreement with the property manager, would remove the horseshoes and step-stool on the following day and then deliver the keys to her (we had no tools that particular day). Unfortunately, when we came back the next day, the step-stool was gone. We found out the owner had entered the house once again and had taken our step-stool. Her reasoning was that we had taken her push-broom.There are two problems with this: First, it was not quite the end of the month yet and according to our lease, we were allowed to use the owners tools that were left at the house until the lease was "up". Second, and most importantly, the push-broom in question was not the owners. It was ours. We feel that the owner violated the lease on many occasions by entering without notice in circumstances other than emergencies, and especially for stealing our property. Unfortunately, the tenant that was to start leasing the property on the first of the following month never showed up and we paid the rent for the next month, but we feel that the lease should have been cancelled the moment the owner violated it by stealing our property. My question is this: Are we within our right to sue for the cancellation of the lease effective on the day the property was stolen, return of our rent paid for the following month, and either return of our property or for a monetary amount equal to the depreciated value of that property?

Answer:

The following is a statute:

§ 1954 Civ.

(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 tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.

(3) The tenant and the landlord may agree orally to an entry to make agreed repairs or supply agreed services. The agreement shall include the date and approximate time of the entry, which shall be within one week of the agreement. In this case, the landlord is not required to provide the tenant a written notice.

(e) No notice of entry is required under this section:

(1) To respond to an emergency.

(2) If the tenant is present and consents to the entry at the time of entry.

(3) After the tenant has abandoned or surrendered the unit.

§ 1965 Civ.

(a) A residential landlord shall not refuse to surrender, to a residential tenant or to a residential tenant's duly authorized representative, any personal property not owned by the landlord which has been left on the premises after the tenant has vacated the residential premises and the return of which has been requested by the tenant or by the authorized representative of the tenant if all of the following occur:

(1) The tenant requests, in writing, within 18 days of vacating the premises, the surrender of the personal property and the request includes a description of the personal property held by the landlord and specifies the mailing address of the tenant.

(2) The landlord or the landlord's agent has control or possession of the tenant's personal property at the time the request is received.

(3) The tenant, prior to the surrender of the personal property by the landlord and upon written demand by the landlord, tenders payment of all reasonable costs associated with the landlord's removal and storage of the personal property. The landlord's demand for payment of reasonable costs associated with the removal and storage of personal property shall be in writing and shall either be mailed to the tenant at the address provided by the tenant pursuant to paragraph (1) or shall be personally presented to the tenant or to the tenant's authorized representative, within five days after the actual receipt of the tenant's request for surrender of the personal property, unless the property is returned first. The demand shall itemize all charges, specifying the nature and amount of each item of cost.

(4) The tenant agrees to claim and remove the personal property at a reasonable time mutually agreed upon by the landlord and tenant but not later than 72 hours after the tender provided for under paragraph (3).

(b) For the purposes of this chapter, "reasonable costs associated with the landlord's removal and storage of the personal property" shall include, but not be limited to, each of the following:

(1) Reasonable costs actually incurred, or the reasonable value of labor actually provided, or both, in removing the personal property from its original location to the place of storage, including disassembly and transportation.

(2) Reasonable storage costs actually incurred, which shall not exceed the fair rental value of the space reasonably required for the storage of the personal property.

(c) This chapter shall not apply when disposition of the personal property has been initiated or completed pursuant to the procedure set forth in Chapter 5 (commencing with Section 1980) or the occupancy is one defined by subdivision (b) of Section 1940

(d) A landlord who complies with this chapter shall not be liable to any person with respect to that person's personal property that is given to another person. In the event of conflicting demands, the first timely request for surrender of personal property received by the landlord shall prevail.

(e) Any landlord who retains personal property in violation of this chapter shall be liable to the tenant in a civil action for all the following:

(1) Actual damages not to exceed the value of the personal property, if the personal property is not surrendered by the later of either of the following: (A) within a reasonable time after the tenant's request for surrender of the personal property, or (B) if the landlord has demanded payment of reasonable costs associated with removal and storage and the tenant has complied with the requirements set forth in paragraphs (3) and (4) of subdivision (a), whichever is later. Three days is presumed to be a reasonable time in the absence of evidence to the contrary.

(2) An amount not to exceed two hundred fifty dollars ($250) for each bad faith violation of this section. In determining the amount of the award, the court shall consider proof of matters as justice may require.

(3) The court may award reasonable attorney's fees and cost to the prevailing party.

(f) The remedy provided by this chapter is not exclusive and shall not preclude either the landlord or the tenant from pursuing any other remedy provided by law.

Please also see the information at the following link:

http://lawdigest.uslegal.com/landlord-tenant/summary-of-residential-landlord-tenant-law/608/

10/25/2007 - Category: Landlord Tenant - State: CA #10931

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