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“Q&A” With Kimball, Tirey & St. John
By Ted Kimball, Esq., Partner, Kimball, Tirey & St. John LLP
Question: If a tenant is evicted, does he forfeit his or her security deposit?
Answer. Even though a tenant is evicted, he or she still has a right to an accounting of the use of his security deposit. The deposit can be used for cleaning, repairs, and delinquent rent.
Question: Does a resident have to stay in his or her apartment for a certain number of days per month for his or her lease to remain in effect?
Answer. Not unless the lease requires actual possession.
Question: Our new residents, who are college kids, are driving the neighbors crazy with their partying, and they are only one month into their one-year lease. What kind of notice do I need to serve?
Answer. If the disturbances are major and continuous, or if the police must be called, you may be able to serve a three-day notice based upon nuisance and commence the unlawful detainer action if they fail to vacate pursuant to the notice.
Question: Can I have the resident pay more security deposit to make up the difference from rent increases?
Answer. You can unilaterally change the terms of a month-to-month agreement by properly serving a thirty (30)-day notice of change of terms of tenancy. This cannot be done with a fixed term lease. You would have to wait until the lease expires and then upon renewal (or when the tenancy goes month to month) ask for an addition to the deposit.
Question: I rent a house to a married couple. I have found that they now have a third person living with them. Can I raise the rent, tell them they must sign a new lease if they want an additional person, or can I say they cannot have additional people in the house since only two people signed the lease?
Answer. If your lease restricts the number of occupants and the tenants have exceeded the limit, it is considered a breach of the lease and
can be remedied by serving a three-day notice to perform conditions and/or covenants or quit. As an alternative, you can invite the third party to fill out an application, if qualified, and add his/her name to the lease.
Question: Do we have to take pictures of the apartment before a new resident moves in?
Answer. Although there is no legal requirement that you take pictures before a tenant moves in, it is a very smart thing to do, especially when you compare your pictures of what the premises looked like to when the tenant moved out. It makes it easy for a judge to see the damage. Just make sure your pictures are dated, including time of day, and are of good quality. Many landlords also prepare a written statement of condition of the unit.
Question: We have posted no smoking signs on our poolside bathrooms and laundry rooms. Is this legal? We have been challenged by several residents.
Answer. Yes, you may restrict smoking in the common areas of your apartment community. In addition to posting no smoking signs, you may also want to add lease provisions or a lease addendum to control smoking.
Question: We have an excellent single resident in one of our units. She has requested to move a troubled friend with relationship problems in with her for a couple of months. What legalities do I need to consider and what additional and/or new forms do I need to have filled out and signed?
Answer. You could have the additional occupant qualify as a resident and sign the current lease as a tenant. This will protect you if the occupant remains and the resident moves out.
Question: Can a three (3)-day notice be served for the cost of damage to the unit caused by a resident? A five-year-old flooded an upstairs carpeted room, resulting in carpet repair and drywall repair of the ceiling downstairs. The standard lease form in

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