Tuesday, September 3, 2013
C.A.: Landlord Can Show Rented Property on Weekends
Panel, Defining ‘Normal Business Hours,’ Says Trial Judge Reasonably Balanced Interests
By a MetNews Staff Writer
A California law requiring a residential tenant to grant a landlord access to the premises in order to show it to prospective buyers during “normal business hours” may require some amount of weekend access, the Court of Appeal for this district ruled Friday.
Noting that Civil Code Sec. 1954 does not define the term, Justice Patti S. Kitching wrote for Div. Three:
“Based on our review of the words of section 1954 as they would have been understood when the statute was enacted, section 1954’s legislative history, and the underlying policies of the statute, we hold that the term ‘normal business hours’ in section 1954 means objectively reasonable hours under the facts and circumstances of the case, keeping in mind the right of tenants to quiet enjoyment and the right of landlords to sell their property.”
The court upheld a declaratory judgment granted by Los Angeles Superior Court Judge Ruth Kwan in favor of David Dromy, a Santa Monica condominium owner. Dromy sued his tenant, Marina Lukovsky, after she refused to allow a realtor hold open houses on weekends.
In a declaration supporting Dromy’s motion for summary judgment, the listing agent said Lukovsky’s refusal to allow open houses on weekends—although she did allow showings by appointment—“has made it much more difficult to find a prospective purchase.” She said it was customary among agents trying to sell residential properties “to conduct weekend open houses in order to market properties more effectively and expose listed properties to the general public.”
The tenant conceded that weekend open houses are common in California, but complained that some of her possessions had been disturbed when the property was shown in her absence.
Kwan’s order, which Kitching called “lengthy and thoughtful,” said open houses would be allowed twice per month on weekend days between 1 p.m. and 4:30 p.m., with the real estate agent present at all times, and with Lukovsky present if she chose to be. The dates were to be set by having the agent give the tenant 10 days notice of proposed dates and having the tenant respond within 48 hours by either accepting the proposed dates or proposing alternatives.
In approving of Kwan’s solution, the justice cited the history of the statute, which was adopted in 1975 and based on the Uniform Residential Landlord and Tenant Act and was supported by the California Association of Realtors.
Before 1975, Kitching explained, there was no law expressly permitting a landlord to enter a rented unit other than to make repairs or in an emergency. The Uniform Act, on the other hand, said that a tenant could not “unreasonably withhold consent” if the landlord sought access for certain purposes, including exhibiting the premises to prospective purchasers, tenants, or persons who were going to be performing, or might be hired to perform, repairs or improvements.
The California law’s use of the phrase “normal business hours,” she said, reflects the policies of the Uniform Act, as well as the Black’s Law Dictionary definition of “business hours” as meaning “In general those hours during which persons in the community generally keep their places open for the transaction of business.”
Since the relevant community is real estate agents, and it was undisputed that those agents work on weekends, the trial judge correctly concluded that weekend hours are not excluded from the statutory definition, Kitching said.
Given the limitations on the number and the hours of open houses, the tenant’s right to propose alternative dates, and the requirement that the agent be on the premises and that the tenant be allowed to be present—safeguards against abuse of the tenant’s personal property—the trial judge’s order strikes an appropriate balance, Kitching concluded.
Attorneys on appeal were Michael J. Simkin and Dana M. Cole for the landlord and Sonya Bekoff Molho for the tenant.
The case is Dromy v. Lukovsky, 13 S.O.S. 4619.
Copyright 2013, Metropolitan News Company