Parking On The Lawn.
We provide here a few questions that have been posted in the Community Forums and our answers to them.
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Q1
There is ample parking in the driveway for 4 vehicles, yet my tenants continue to park on the lawn in spite of several warnings. The City ordinance states that no one should permanently park on the swale. They are excellent tenants and I do not want to hurt their feelings. Even their visitors park on the lawn. How do I tell my tenants to stop damaging the lawn?
A1
If they are really great tenants and the City won’t be proceeding against you as property owner, you can simply consider the damage as a cost of doing business and repair the damage after they vacate, deducting the expense on your income taxes. Most other options are unfriendly in varying degrees and vacancies are very expensive in a number of ways.
Making it impossible to park on the lawn is the only way to completely eliminate the problem. Depending on the layout of the property, zoning laws, and other possible issues, you might be able to construct barriers. This could be posts in the ground or large rocks close enough together to prevent driving through, a low wall or fence, or a hedge – if you think they wouldn’t destroy the hedge by driving through it before it reached substantial size.
If the City will cite their vehicles rather than your property, perhaps you can persuade the City to take action. Such ordinances will usually first result in an official warning notice and this might provide ammunition for obtaining their cooperation. If, however, the City fines you for the infraction, you might have a legal right to collect from the tenants, but this could require getting “unfriendly” in order to collect. Whether you could get a court judgment regarding them paying you might depend on the laws of your state’s statutes or local ordinances and/or whether such an issue is covered in your lease agreement.
If they are month-to-month tenants, you can give them a termination notice (usually 30 days), following which you will either be rid of them or have been able to negotiate payment for damages and modification of the lease agreement to cover the issue. If they are on a long-term lease, you can wait until expiration of the lease term and do the same thing. Letting them know ahead of time might make them change their ways unless they would as soon move anyway.
Becoming even more unfriendly, you can serve them a “Cure or Quit” notice and, if they fail to cease their activity, terminate their occupancy, if necessary evicting them. You could also consider filing a lawsuit for damages above the amount available from their security deposit.
Finally, you don’t say how long this has been going on or how many and what type of notices you have given them regarding the matter. Assuming it became seriously unfriendly, there is always the chance that a judge would consider you having waived the right to enforce no parking because they have done so for a long period and you have not taken strong action against them. If this issue is not specifically covered in the lease agreement, it certainly should be in any renewal, extension, or new lease. However, neither issue is likely to be a problem if there is an ordinance that explicitly applies to the matter.
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Q2
I’m trying to find out if in the state of CA there is a certain interest rate, if any at all, required to be paid on a security deposit and if it has to be held in a certain type of account?
A2
My brief research indicates that the state of CA does not require payment of interest on security deposits and the state does not seem to require deposit of the funds into a special account. However, there are cities in CA that have rent control ordinances which might have one or both requirements.
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Q3
I am currently in the process of evicting a squatter from my property. The court date is scheduled for two weeks from now. I also want to file a small claims court lawsuit against him for 2 months rent and attorney fee. Should I file the suit while he is still on my property where he can be easily located and served with the suit or wait until the court date or later after the eviction judgment? Will suing him for damages have any impact on the eviction? And, is it possible to sue him after the eviction with no information to his where about or address?
A3
As you appear to already realize, if you do not serve him regarding the suit while you know where to find him, you may never be able to sue him. This is because our Constitution provides that one has the right to defend oneself and it’s impossible to defend oneself if one has no knowledge of there being a suit. In order to sustain a law suit, it is necessary to serve the defendant in the manner or manners required by the law of the particular state. In some jurisdictions, this means that the defendant must be physically handed a copy of the complaint and summons. Other jurisdictions allow service by mail, usually Certified or Registered Mail being required, in which case the defendant will often avoid accepting the mail. However, in this event, as well as for obvious attempts to avoid physical service, evidence showing the facts – e.g., also sending a copy using a Certificate of Mailing – will often cause a judge to ignore the failure of service.
Although many states allow the plaintiff (you in this case) to personally do the service, it is sometimes better to have it done by an independent process server. First, this avoids a chance of an unfriendly confrontation. Second, it eliminates the judge having to decide which party is telling the truth when the defendant claims he was not properly served and the plaintiff claims he was because, absent serious evidence to the contrary, he will almost certainly believe the process server. In many jurisdictions the process server can be either a private for-hire server or an official officer of the court such as a deputy sheriff. Because failure affects his pay, the former is usually preferred to the latter where allowed. Call the office of the clerk for the court of jurisdiction for evictions in the jurisdiction where your property is located. This may be irrelevant if you are serving him yourself.
Some jurisdictions do allow for service by publication in a defined newspaper for a certain number of weeks when nothing else is possible, but the defendant may be able to later argue against such a service – e.g., he left the state, does not subscribe to the newspaper, or is illiterate. Furthermore, a particular judge may be biased against service by publication.
Court procedures vary among states, among levels of courts within a state, and among various courts (different cities, counties) within the same level, so, again, check with the court clerk when you have any questions about court matters.
If you can once obtain a judgment against the defendant, you can collect from him in any state where you can find him during the term for which the judgment remains valid. Although laws vary among states, judgments are typically good for 5 or more years and can usually be renewed for at least one additional equivalent period. His only defense would be that the court giving the judgment did not have jurisdiction over the matter, a defense not likely to be very useful in the case of an eviction or related matter.
I do not think that filing a lawsuit for damages will have any impact on the eviction. If anything, it might actually reinforce the need for an eviction. However, when getting involved in any litigation, one must consider that judges are not always logical or may simply be biased against a class of litigants (e.g., landlords).
If the occupant is indeed legally a squatter rather than a tenant, I would wonder whether you will be allowed to collect unpaid rent from a squatter. A judge may not allow collection of rent per se from a non-tenant occupant. You may need to attack from the perspective that his unauthorized occupancy prevented you from collecting rent from another person, who would be legally a tenant. However, Small Claims courts do not always worry about such legal technicalities. This would be a question for a competent landlord-tenant law attorney.
Unless you have experience in appearing in eviction proceedings and particularly if the occupant is truly a squatter rather than a tenant, you might consider hiring an attorney to both complete the eviction and file the suit, assuming being represented by an attorney is allowed in Small Claims court in your jurisdiction. In spite of the cost of an attorney, using one can actually be cost effective. A mistake in following the legal procedures can result in having to start over after weeks of waiting for the day in court. For anyone except the most experienced landlord, it is even more important to be represented by an attorney if the defendant uses an attorney.
Most jurisdictions will have experienced competent attorneys who do nothing except handle evictions and related matters. They will also be familiar with particular idiosyncrasies of individual judges. Rather than see who has the largest yellow page ad, it is best to get recommendations from other landlords or management companies because the best attorneys have plenty of business without advertising.
Finally, if he disappears after being evicted, you probably will have a good chance of finding him in the future, particularly after he has established permanent residency somewhere. In addition to the various social networking sites where people tend to provide a lot of personal information that might help track him down there are innumerable Web sites that offer services related to finding people for reasonable fees.
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Additional Information
Most of the issues discussed in these Q&A’s are covered in considerably more detail in our eCourses and/or in our Mini Training Guides.