What are landlord’s rights and obligations when entering a unit that has been leased to a tenant? In a commercial context the answer is usually governed by the terms of the lease. Sometimes a landlord is granted a blanket right to show the property to prospective purchasers or lessees without any liability or obligations to the tenant. Typically, however, a lease will require reasonable advance notice to a commercial tenant so they are aware when the landlord will be accessing the space for showings. Again, these terms are generally provided for in the lease and based on the business deal between the parties.
The situation is different when it comes to residential leases. California law provides residential tenants with certain safeguards, notwithstanding the terms of the lease, in order to protect the place where one lives and sleeps. One such law is California Civil Code Section 1954 (“Section 1954”). Section 1954(a) forbids a landlord from entering a dwelling except in limited, certain circumstances, specifically, “(1) in cases of emergency, (2) to make necessary or agreed repairs or agreed services or exhibit the dwelling unit to prospective or actual purchasers, and (3) when the tenant has abandoned or surrendered the premises.” Subsection (b) of Section 1954 further provides that “except in cases of emergency or abandonment, entry may not be made during other than normal business hours (unless the tenant consents to other than normal business hours at the time of entry).”
One recent case decided by the Court of Appeal posed the unanswered question, what are “normal business hours? In Dromy v. Lukovsky, the landlord wished to sell the leased property, but the tenant would not allow the real estate agent to conduct weekend open houses at the premises. This was a problem for selling the unit since many potential buyers work during weekdays. Dromy sought a declaration as to his rights under Section 1954, including whether he could require the tenant to allow weekend open houses at the leased property.
To address the issue, the Court of Appeal charged itself with interpreting the phrase “normal business hours”, which is not defined in Section 1954. The Court of Appeal reviewed the Uniform Residential Landlord and Tenant Act, which provides that a tenant cannot unreasonably withhold consent with respect to the landlord’s proscribed rights to enter a leased property under Section 1954. The Court of Appeal also looked at Black’s Law Dictionary, which defines “normal business hours” as “those hours during which persons in the community generally keep their places open for the transaction of business”. The relevant community in this context was determined to be licensed professionals in real estate whose custom and practice is to hold open houses on the weekend.
Ultimately, the Court of Appeal tried to balance two overarching concerns, the implied right of quiet enjoyment for a tenant and a property owner’s inalienable right to sell its property. The Court of Appeal recognized that a landlord’s ability to sell his or her property might be negatively impacted if the property could not be exhibited to prospective buyers at reasonable times. Therefore, they upheld the lower court’s decision to allow weekend open houses, provided the tenant received proper advance notice and the showings were limited to twice per month during limited afternoon hours.
Dromy v. Lukovsky illustrates that a landlord, especially in a residential context, should tread lightly when entering a tenant’s leased premises, but should also feel confident that a tenant must be reasonable when imposing limitations on a landlord’s right to access the property pursuant to a sale.
The issues discussed in this update are not intended to be legal advice and no attorney-client relationship is established with the recipient. Readers should consult with legal counsel before relying on any of the information contained herein. Reuben, Junius & Rose, LLP is a full service real estate law firm. We specialize in land use, development and entitlement law. We also provide a wide range of transactional services, including leasing, acquisitions and sales, formation of limited liability companies and other entities, lending/workout assistance, subdivision and condominium work.
