You want to sell a rental propety, but your tenant won’t let you in. Do you have the right to barge in at any time? What do you do if the tenant insists that they must be present? Today, we answer those questions.
My name is Jared Clemence, and I specialize in selling real estate in Bakersfield, CA.
California Law
The section of the Civil Code that addresses your right to enter your rented property is Civil Code section 1954. We will review it in its various parts. In short, the tenant cannot keep you out of your property when you are trying to sell it.
When you can enter
Under Civil Code section 1954, you can enter in several instances including, but not limited to: “emergency,” “to make necessary repairs,” or to “exhibit the dwelling unit to prospective or actual purchasers.” Civil Code section 1954, subdivision (a)(2), is most relevant when you are selling your property. Under this subdivision, you may enter the property, and the tenant cannot prevent your entry, so long as you are showing the home to a prospective purchaser.
It is important to note that the time of the entry must be limited.
What times are appropriate under the law
Civil Code section 1954 subdivision (b) limits the hours in the day that you may enter. Specifically, a landlord may not enter “during [any hour] other than normal business hours unless the tenant consents . . .” (Civ. Code § 1954, subd. (b).)
This means that you should confine your visit to hours after 8am and preferably before 5pm. You may get the tenant’s consent in writing to extend this window of time to 8pm. If the relationship with the tenant is good, they may grant this permission without anything in exchange. Sometimes, a small bribe is appropriate. I like to bring a pizza for dinner when asking for extended permissions, if I do not have them already.
Pro Tip: Consent may be given at any time. Try including a clause in your rental agreement that defines “normal business hours” as the period from 8am to 8pm. Then you have tenant consent by contract.
Avoid Harassment
California Civil Code section 1954, subdivision (c), warns us against harassing the tenant. A landlord “may not abuse the right of access or use it to harass the tenant.” (Civ. Code § 1954, subd. (c).) If you are entering to show the property to new prospective buyers, you are probably safe. If you are taking the same buyer every day, then you probably need to reconsider.
Pro Tip: Avoid harassment claims by scheduling a visit for a 3D tour. By recording the home in a 3D tour and publishing that tour to a website, you can show the house 24-hours a day without disturbing the tenants repeatedly.
What notice is required?
Unless an exception applies, you must give the tenant “reasonable notice.” (Civ. Code § 1954, subd. (d)(1).) That notice must be in writing, unless you are showing the unit to a prospective buyer. (Civ. Code § 1954, subd. (d)(1) and (d)(2).) When you are showing the unit to a prospective buyer, you may give the notice “orally, in person or by telephone,” but to allow oral notice, the landlord must have already given the tenant 120-day notice that the property will be listed for sale. (Civ. Code § 1954, subd. (d)(2).)
120-days is four months notice. Most land-lords do not plan this far in advance when they list the home for sale. Because most landlords have not given the required 120-day notice, real estate agents should be ready to give “notice in writing” as required by Civil Code section 1954, subdivision (d)(1).
The notice must have the following parts:
- A statement of intent to enter.
- The date of entry.
- An approximate time.
- The purpose of the entry.
(Civ. Code § 1954, subd. (d)(1).)
You may hand it to the tenant, leave it with a person of “suitable age and discression” at the home, or posted on the door “in a manner in which a reasonable person would discover the notice.” (Civ. Code § 1954, subd. (d)(1).) You may also mail the notice. (Civ. Code § 1954, subd. (d)(1).)
Courts are divided on electronic notice. Unless you have permission from the tenant in writing to email or text the notice, stick to delivering physical paper notices by one of the prescribed methods.
Keep a record of when you give notice and how it was delivered. When possible, take pictures to support the record.
What notice is prudent?
When the landlord has given 120-notice to the tenant that the property will be listed for sale, the agent may give “oral notice.” However, always remember that you must be able to support your claims in court if the tenant ever tries to say that you violated the law. For this reason, I recommend avoiding oral notice. Think about how difficult it is to prove that you said something to the tenant on a specific day and time when the tenant is saying that you did not.
How much notice is “reasonable”?
Under Civil Code section 1954, subdivision (d), “reasonable notice” is presumed to be a period of “[t]wenty-four hours . . . in the absence of evidence to the contrary.” If the notice is sent by mail, the law extends this period to six days. (Civ. Code § 1954, subd. (d)(1).)
Naturally, you must use your own reasonable perception to support the facts. If you already know that the tenant is away on a two-week work-assignment, then twenty-four hour notice is not likely adequate, because you know the tenant will not receive it before the appointment. In cases such as this, try to get the tenant’s permission to send notice by text message or email, and always ask the recipient to respond to the email with permission. Even though permission is not required, the response indicates that they have actually received your notice.
The Tenant cannot say “No”
When the landlord follows the rules in Civil Code section 1954, the tenant cannot say “No.” Many sellers list the home “subject to interior inspection,” because they are afraid of when the tenant says “No.” It should never be that difficult, and buyers hate making offers “subject to interior inspection.” Many buyers feel that they cannot establish a personal sense of value until they see the inside.
Help the tenant to say “Yes”
To avoid conflict, help the tenant say “Yes.” Offering the tenant a small share of the proceeds if the house sells quickly will make them more friendly to buyers. Sometimes, offering $500 on a successful sale can really change a buyer’s attitude.
If you want to avoid constantly seeking tenant approval, use 3D home tours instead. Get permission from your tenant to do a single showing appointment, and record a virtual tour. Either on video camera or using a 3D modeling system like Zillow or Matterport.
Avoid Headaches – List with Jared
It helps to have a real estate agent who is familiar with the law. I am not an attorney, but I know your rights. When you want to sell a rental property, call me. I am here to help.