Tuesday, 28 March 2017

Realty Reality: Tenants' Rights Regarding For-Sale Showings

Written by Posted On Friday, 15 April 2005 00:00

Sometimes it happens that an owner of a residence that is being rented, may decide that he or she wants to sell that property. If the landlord can work out a purchase arrangement with the tenant, or if he is able to sell it to someone already interested, that may be all well and good. But what if the owner wants to put the property on the open market and make it available to a wide range of prospective purchasers? That is typically not what a tenant has bargained for, and it has the potential for causing considerable inconvenience. Are there any rules that protect the tenant's privacy and quiet enjoyment of the property in this situation? Yes.

California Civil Code section 1954 deals with the conditions under which a landlord may enter an occupied dwelling unit. Normally, except in cases of emergency or abandonment, the landlord must give the tenant written notice of his intention to enter the property. Twenty-four hour notice is presumed to be sufficiently reasonable. If the written notice is mailed, however, it should be mailed at least six days prior to the intended entry.

An exception to the written-notice requirement is provided in the situation where entry is for the purpose of showing the property to an actual or prospective purchaser. In that case, oral notification is acceptable, provided that the tenant has already received written notice within the past 120 days that the property is for sale and that the tenant will be receiving oral notification of intended entry.

It is still required that the tenant receive at least 24 hours notice of each intended entry. Trying to give oral notice -- as in, "I called yesterday, but no one answered" -- is not sufficient.

Other restrictions apply as well. Unless the tenant consents otherwise, entry for the purpose of showing must occur during normal business hours. A tenant does not have to let his dwelling place be shown during Sunday brunch.

The provisions of section 1954 do not make things especially convenient for real estate agents. But guess what? That wasn't what the authors of the legislation had in mind.

It is a common practice for listing agents to put information about a rented for-sale residence into the multiple listing system, and to advise other agents to call the tenants for an appointment to show. It is not clear, though, that this practice is allowable under the language of section 1954. 1954 speaks of a property being shown, and notice being given, by a "landlord or his or her agent." But it says nothing of other agents. Back in the old days, it could have been argued that agents representing buyers were sub-agents of the landlord; but that is not generally the case under current California agency law. Typically, the agent representing the buyer is not also an agent of the seller, hence not an agent of the landlord. Nothing in section 1954 suggests that an agent, other than the landlord's agent, has any right to set appointments and gain entry for the purpose of showing a rented dwelling unit.

If the regulations set forth in section 1954 seem cumbersome for landlords and/or their agents, there might be some temptation to eliminate these contractually. That is, a landlord might want to make it a provision of the lease agreement that the property could be shown during nonbusiness hours, or on less than 24 hours notice. Such an attempt would be futile, however. Section 1953 of the civil code provides that any such provision "shall be void and contrary to public policy."

This is not to say that a tenant cannot agree to allow his or her residence to be shown on less than 24 hours notice, or at other than business hours. They can. But such an agreement cannot be enforced. If the tenant has given such agreement and then later, for whatever reason, withdraws it -- or grants it on one occasion, but not another -- there can be no punitive consequences.

Landlords have a right to sell, of course. But tenants have rights, too. Of course.

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Bob Hunt

Bob Hunt is a former director of the National Association of Realtors and is author of the recently published book, "Real Estate the Ethical Way." A graduate of Princeton with a master's degree from UCLA in philosophy, Hunt has served as a U.S. Marine, Realtor association president in South Orange County, and director of the California Association of Realtors, and is an award-winning Realtor. Contact Bob at scbhunt@aol.com.

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