The Landlord's Right of Access and its Limits

A nosy landlord is an all too common phenomenon. In some cases, what started with a bit of nosiness can transform into legitimate, months-long harassment. Faced with complaints about their intrusive behavior, the landlord may attempt to justify themselves by intimating concern about the tenant's use and maintenance of the property. A busy tenant - residential or commercial - will likely find the development of such a toxic landlord-tenant relationship wasteful of their time and resources.

In California, though landlords have a right of access to the premises, tenants are empowered with a right to exclusive possession of the premises (enshrined in the covenant of quiet enjoyment). As a result, California law restricts and limits the landlord's right of access in order to preserve the tenant's right to exclusive possession.

For an introduction to the landlord-tenant relationship, please read our article here.

As a default, general rule, the landlord may only access the premises with the tenant's permission at the time of entry, or with reasonable advance notice of the entry - though there are a myriad of exceptions and limitations to the rule.

If the landlord does not comply with these requirements, then the landlord and any persons he or she invites to access the property illegally may be found guilty of a criminal trespass misdemeanor.

First, let's consider the letter of the law.

Statutory Law Limiting the Right of Access

California Civil Code section 1954 governs the right of access.

To reiterate, the default rule is that landlord's right to access the premises requires either the consent of the tenant at the time of entry, a reasonable advance notice of entry, or an exception to these requirements. This right of access is further limited, however, by the nature of the landlord's entry.

Under Civil Code section 1954, a landlord may only access the premises: 1) in the event of an emergency; 2) to make repairs, alterations, or improvements, to supply agreed upon services, to exhibit the property to prospective tenants and purchasers or to make an inspection; 3) once the tenant has abandoned or surrendered the premises; or 4) with a court order allowing entry.

Of course, this is quite a broad range of potential excuses for the landlord to use for making an entry, and ostensibly, your landlord could use these excuses to justify harassment. Thankfully, section 1954(c) specifically states that a landlord may not abuse the right of access or use it to harass the tenant.

If you are a tenant being harassed by constant entry requests from your landlord, do not be intimidated by a threat of eviction. Seek the counsel of an experienced California real estate attorney before giving in to systemic landlord harassment.

A landlord may only enter the premises during business hours (8AM to 5PM, weekdays), unless there is an emergency or the tenant has moved out or abandoned the premises. Otherwise, the landlord must not only enter during business hours, but the he or she must also give the tenant reasonable advance notice of entry.

Alternatively, the tenant may grant consent to entry at the time of the landlord's visit.

What constitutes reasonable advance notice?

Generally speaking, twenty-four hours advance written notice is deemed sufficient to establish reasonable advance notice under California law, if the written notice has been personally delivered to the tenant, left with a person of suitable age and closeness to the tenant such that the notice would be delivered to the tenant, or left by the entry door in a place likely to be found by the tenant.

If the written notice is mailed to the tenant, then the mailing must occur at minimum six days prior to the intended entry.

For the purpose of showing the property to prospective tenants and/or purchasers, the landlord first must give 120 days advance written notice that the premises will be shown to prospective tenants/purchasers, and that the landlord will be contacting the tenant orally to further arrange the details. Thereafter, the landlord may give oral notice in person or by phone, and the notice need only be twenty-four hours in advance of the showing. The tenant is allowed to negotiate the showing timing, somewhat, but if the tenant prevents the landlord from showing their property, then the tenant may be liable and may be evicted.

Remember, a landlord is not allowed to abuse their right of access, and especially not to harass the tenant. Landlords may be liable under California Civil Code section 1940.2 if they abuse their right of access or use the right of access to harass the tenant.

Landlord Lockout of the Tenant

In some particularly conflict-ridden landlord-tenant relationships, the landlord locks out the tenant, even changing the locks so that the tenant is prevented from entering the premises. The landlord may even remove furniture and other items of personal property in a bid to "evict" the tenant from the premises.

What should you do if this happens?

As the landlord is likely guilty of a criminal misdemeanor, you should contact law enforcement as soon as possible. You are also entitled to re-enter the premises, so it is recommended that you seek professional locksmithing services (if you find a way to break into the premises, however, that is fine as well).

The landlord may not only be guilty of criminal misdemeanor - you may also have a civil case against the landlord, for which damages may be significant (depending on the success of your attorney's punitive damages argument).

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For a free consultation with an experienced San Jose real estate attorney, call the Law Offices of Brian O' Grady at (650) 318-6131 to set up your appointment today.