Can our landlord kick us out before the lease starts?

March 26, 2007 12:42 PM

Less than a week after signing a new rental lease, my landlord calls and says that he's canceling our agreement and plans to move into the unit himself. What's our best course of action?

This is in Oakland, California. The lease is set to start April 1st. He claims to be in a "hardship" situation where he needs to leave his current home, and because the unit is currently "vacant" he wants to move in and kick us out before we're even there. As far as I can tell, this isn't legal. However, is it worth fighting or ... ? Looking for any advice.

posted by treebjen to law & government (23 comments total)

Oakland has a very strong renters rights law.

talk to:

Just Cause Oakland

the Oakland Campaign for Tenants Rights: [phone]

the Housing Law Project

Good luck. I'm not a lawyer myself so even though it SOUNDS very sketchy, I couldn't tell you if it were legal or not. Let us know what happens!
posted by luriete at 12:56 PM on March 26, 2007

Don't fight to move in. Being trapped in a lease with a landlord who doesn't want you there is a recipe for disaster. You may wind up fighting with him over all sorts of things, you can bet that the lease won't be renewed when it comes up, and in general, you are setting yourself up for an unpleasant stay. If you make him back down (whether through legal pressure or the threat of it), he's going to start of resenting you, and as the landlord, he has the power to make your life annoying (heat and maintainance just on the legal side of the minimum come to mind). You'll also need to dot every t and cross every i in your dealings with him; watch out for even one late rent payment.

But this isn't advice just to give up. There are both friendly and hardball options open to them. The friendly approach is to find out more about your landlord's situation and see if there's something he and you could work out that would work for both of you. He might be able to help you find someplace nearby and comparable. He might have more options than he realizes and might not need to move in, after all. This is classic getting-to-yes stuff: find out what his interests are, not just his negotiating positions. Similarly, what are your interests? Look for common ground.

As for the hardball side, yes, what he is doing sounds blatantly illegal (But check California law that there isn't some exception, e.g. for landlords who will self-occupy, within a week of signing the lease. Landlord-tenant law can be highly complex.) That gives you some leverage. Of course you get your deposit back, plus anything else you've given him. On top of that, if his alternative is being sued and evicted or paying significant damages, he may be willing to settle pretty quickly. Certainly it would be reasonable for you to ask for your additional moving expenses due to the inconvenience. He may have power from possession of the premises, but your legal threats give you some substantial power, too, and that should help you walk away from this mess in relatively okay shape.
posted by grimmelm at 12:59 PM on March 26, 2007

Your options:

(1) Let this happen, unjust as it may feel. Find somewhere else to live. Maybe weasel some kind of nominal payment out of him by threatening to take him to court.

(2) Find some way - legal or not - to move in anyway. You will now be living in a place with a pissed-off landlord, who has every reason to raise your rent, stonewall you on repairs, and generally make your rental life hell.

Take your pick. I'd suck it up and choose door #1.
posted by googly at 1:00 PM on March 26, 2007 [1 favorite]

First of all, check your copy of the lease you signed. It may have include a clause allowing the landlord to do this. Because you haven't taken possession of the premises yet, such clauses are usually valid. If you had moved in already things would be different.

If there's no such clause allowing him to void the contract prior to your taking possession, then you've got a binding contract with him that he intends to violate.

Since he's not evicting you, you're technically not entitled to the $1000 payment for owner-occupancy eviction. However, it would probably not be unreasonable for you to bring this up with him, since he brought up the owner occupancy issue.

However, I don't look at it that way. I look at it as him doing you a (small) favor by telling you on March 26th instead of on April 2nd, after you'd moved in. Owner occupancy is a valid reason to break your lease and post a 30-day eviction notice to quit the premises on your door - would you have rather moved in and then found this out the next day?

Finally it appears to me that if you want to really assert your legal rights, you may actually have the legal right to move into the apartment and be served with an owner-occupancy eviction notice the next day. You could then hold the guy up for your $1000, and split. Or you could then challenge that notice in court on the grounds of not-good-faith, which would cost you thousands of dollars and get you a few more months of habitation. You'd have a pretty strong case to make that he wasn't acting in good faith, seeing as he'd just rented the apartment to you a week ago.

You could eventually possibly win and retain the apartment, or possibly lose and have to pay your landlords' attorney fees. None of this process sounds like an attractive option to me, win or lose.

So I think I'd probably just write this apartment off as a wash and go find a different one. Things are different if he's already taken your security deposit; at the very least I'd demand to receive it back immediately in toto.
posted by ikkyu2 at 1:00 PM on March 26, 2007

Because you haven't taken possession of the premises yet, such clauses are usually valid. If you had moved in already things would be different.

These clauses are sometimes valid even after you have taken possession of the house. I know some folks who took back possession of their house from renters following a series of negative health and professional events that definitely qualified as hardships. There was a hardship clause in the lease. The renters challenged them in court and lost, and the home's owners got their house back.
posted by croutonsupafreak at 1:14 PM on March 26, 2007

Undoubtedly the landlord found someone else to rent the apartment at a higher price.

So you have a choice, as others have noted. You can fight to move in with a landlord who is already lying to you and will hate you, or you can move on.

Personally, I'd call and say this:

"Look, we already signed the lease. I know as well as you do that you aren't going to move in to that apartment, you just found someone else willing to pay a higher rent. That's great, but it's a big inconvenience for me. I'll tell you what. You return my security deposit and give me $200 cash for my trouble, and I'll tear up the lease and forget all about it. Deal?"

So many things in life can be solved by an accommodation that benefits both parties. He'll still make out better, because undoubtedly he'll make more than $200 extra from the other tenant. You come off okay and don't end up moving in with an annoyed landlord. Everyone's happy. Problem solved.
posted by jellicle at 1:15 PM on March 26, 2007 [1 favorite]

crouton supafreak, once you've taken possession, the landlord's ability to get you out is mostly determined by state and local laws; clauses in the lease that violate these laws usually can't be enforced.
posted by ikkyu2 at 1:23 PM on March 26, 2007

The advice to avoid this landlord seems sound to me. No one wants a vindictive landlord. However, you may be able to sue him for damages such as extra expenses associated with finding a new place etc. I would explore you options with the resources in the first post.
posted by caddis at 1:42 PM on March 26, 2007

Jellicle, I disagree that the landlord is undoubtedly lying. It's certainly a possibility, but it's also possible that he is telling the truth. Maybe his mother needs expensive surgery and he couldn't afford to pay his own rent anymore, who knows.

If you call him a liar and he isn't, he will feel insulted and will be unwilling to deal. If you call him a liar and he is, then he's already looking to screw you and probably will no matter what you do, short of taking him to court. I think you have a better chance of success if you assume he is honest, until you have definite cause to assume otherwise.
posted by PercussivePaul at 1:43 PM on March 26, 2007

"I'll tell you what. You return my security deposit and give me $200 cash for my trouble, and I'll tear up the lease and forget all about it. Deal?"

I'd second this advise, but raise the asking price to a month's rent. You can argue that it's going to take you a month to find, rent, and move in to another place.
posted by Civil_Disobedient at 1:56 PM on March 26, 2007

A thought: if you don't sign anything agreeing to terminating the lease, could the landlord go ultra-scumbag and turn around saying you neglected to pay rent?
posted by jmd82 at 1:57 PM on March 26, 2007

Thanks everyone for your input.

I should also mention that when we signed the lease last week (Wednesday) we were also given the keys and permission to begin moving in after the work was completed last Friday. (Even though the official lease doesn't start until, ironically, April 1st.)

I'm not sure if that changes the situation as far as taking possession. I'll take a look at what we signed once I get home and go from there.

Blah!
posted by treebjen at 2:03 PM on March 26, 2007

An additional note: all our dealings with this landlord have been really good. He's been very friendly, introduced us to other tenants in the building (4 unit). One other tenant has been in the building 30 years, and the person who moved out of the place we looked at had been there over 20 years. From my discussion with him earlier today it sounded like he needed to get out of his house and away from a bad relationship.

It just seems to me that his situation is HIS SITUATION. So, hopefully once I've got all my facts straight I'll be able to work something out. Just wanted to get as many ideas/options worked out as I can first.
posted by treebjen at 2:07 PM on March 26, 2007

Legal rights are not the same as acting appropriately. Either he's being honest, in which case you should not push him to rent to you, or he's lying, in which case you don't want him as your landlord. Hit him up for contacts. If he's being truthful then he'll bend over backwards to help you find a place.
posted by monkeymadness at 2:08 PM on March 26, 2007

If you already have the keys and verbal permission to occupy, then in the eyes of the law, you've taken possession. The landlord asking you to leave means that you're being evicted and you've a right to that $1000 under the owner-occupancy statute.

Proving possession at a later time can be a bit tricky, though, especially as your lease doesn't start until the 1st. You should decide what you wish to do quickly, and if that includes getting a lawyer, that means tomorrow.
posted by ikkyu2 at 2:22 PM on March 26, 2007

Hm, I should amend that. The $1000 for owner-occupancy eviction seems limited to San Francisco; Oakland has its own ordinance and I don't find mention of it.

If the landlord hasn't served you with an eviction notice in writing, you should probably ask him to do so. Read your lease carefully - it probably contains a clause about how it can be broken by mutual consent. And be careful, because if you do not break the lease, having already taken possession of the apartment, you're on the hook for rent whether you move in or not.

What a mess this is.
posted by ikkyu2 at 2:28 PM on March 26, 2007

er...I meant door #2.
posted by googly at 2:35 PM on March 26, 2007

Yup, thanks. My understanding of Oakland's Just Cause eviction ordinance is that the owner can evict so as to move in, but they must provide notice, and also remain in the unit for 36 months (or keep the unit unrented for that period.)
posted by treebjen at 2:37 PM on March 26, 2007

OK, some weird coincidences here:

1) I used to work with treebjen in Michigan (Hi Ben!)

2) My wife and were planning on relocating to Oakland from the east coast and I saw the posting for this exact apartment on Craiglist the weekend of March 17-18 and considered going to look at the place.

Legally, I don't know what your options are but it sounds like you're going to have to give up the apartment. I second the advice that living in a place with a landlord who resents having you there is a terrificly bad idea.
posted by camworld at 4:01 PM on March 26, 2007

Regardless of whether you are going to take option #1 (not fighting with him) or #2 (fighting), ask him to give you a notice to vacate in writing. At least that way you will preserve your options, in case you decide that you want to fight, or sue him in small-claims for moving expenses, etc.

Don't close off your options by not getting things in writing. If he wants you to leave, or wants to terminate your earlier agreement, he can write you a letter informing you of it.

Remember: if it's not in writing, it didn't happen.
posted by Kadin2048 at 4:26 PM on March 26, 2007

If you feel like it's fair to ask the guy for money, do so -- like, if you have to be out of your current place by March 30, and have to pay to stay somewhere till you find another place.

Write the guy a letter detailing whatever happens... e.g., "Because you've told me you need to move into apartment B at 123 Main Street, I am agreeing not to move in. Thank you for the $X you've given me to cover costs I'm incurring because you aren't able to honor the lease I signed."

Later on, if you find out he never did move into that apartment, you will have the option of going to the Oakland Rent Boart seeking remedy. This kind of thing happens in San Francisco all the time. Landlord evicts tenant, claiming some basis that is legal; tenant leaves, then finds out it was all a scheme to rent the place to someone else for more money; evicted tenant sues and landlord is very sad.
posted by wryly at 5:05 PM on March 26, 2007

Landlord sounds legit, for whatever that's worth. Get his eviction in writing, to cover your own ass, primarily, and secondarily to leave open your options to seek redress.

My greatest concern is your situation of not having a place to move in to. If you are stuck between homes, you are going to suffer losses as a result, and it would be highly resonable to sue the landlord for this, regardless of his being totally honest (assuming that's the case). And the $1,000 may not cover your hardship if you end up homeless.
posted by Goofyy at 6:22 AM on March 27, 2007

This went from bad to worse in the past day, landlord changed the locks, etc. etc. I spoke to a lawyer today and we've basically settled on getting our money back and our stuff back, and then decide later if we're going to take any further action. (Small claims.)

We came to this conclusion after discussion with the lawyer and making the decision that, at this point, we don't want to live there (up until he changed the locks I was hopeful that we could settle things reasonably.)

It sounds like we've got the law on our side and the landlord has broken the law in several ways. But, I think I've aged enough already in the past 2 days and it's time to move on! Ok!
posted by treebjen at 7:15 PM on March 27, 2007