Law Offices of Daniel P. Beaver
Real Estate Attorney Serving Walnut Creek
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Careful: Your e-mails to your tenant (or landlord) can come back to haunt you

Have you noticed the trend toward more aggressive speech in public forums like city council meetings, letters to the editor, and "peaceful" demonstrations? How about in landlord-tenant e-mails?

The following is a lesson to both landlords and tenants. The threats you make in writing can come back to haunt you.

A landlord client of mine sought my advice in terminating a residential tenancy at the end of the lease term. They had rented out the home for a few years, but were now looking to sell it. We let the tenants know, in a polite e-mail, that we would not be renewing the lease, nor would my client accept any rent once the lease term ended. (Note: there is a lot of confusion out there about exactly how and when to notify a tenant in this particular situation, but this is all that's usually needed in a non-rent control city.) We offered a significant rent reduction for the final month as a good faith gesture.

The tenants took offense, and began sending nasty e-mails to my client. The gist of the e-mails was that if the landlord paid them several months rent and immediately returned the deposit, they in turn would not make things difficult for the landlord by stretching the unlawful detainer case out by 3 or more months. The tenants refused to move out at the end of the lease, of course. Their e-mails and threats continued, as we filed the unlawful detainer and the case moved toward trial - a trial that took place one month to the day after we filed the case.

There is a fairly obscure and little-used provision in unlawful detainer law - Code of Civil Procedure Section 1174(b) - that authorizes additional statutory damages of up to $600.00 upon proving that the tenant's continued possession was "malicious." As a practical matter, while the box seeking these damages might get checked fairly often, the damages just aren't awarded by the court very often, if at all. It's understandable: most UD trials are rushed affairs, with the judge hearing a half-dozen or more in a morning or afternoon session. The primary goal for the landlord is to get possession; many times we know that the tenant has little or no ability to satisfy a judgment anyway; and judges are reluctant to further penalize a tenant who is about to get kicked out of their home with a money judgment for back rent and attorney fees to boot. The law is also more than a little unsettled on exactly what "malicious" means in the eviction context.

But in our recent case, the judge had given the tenants enough time to introduce some other e-mails they thought would show how reasonable they had been. (I wasn't convinced of their relevance, but the judge was being lenient.) So I went ahead and introduced some of the more threatening e-mails, and later, after my clients had been awarded possession and we were tallying up the judgment, I asked the judge to consider granting those $600.00 damages - knowing the likely response would be to take our judgment and be happy. But something about those e-mails rubbed the judge the wrong way, and after thinking about it for a few minutes, he awarded us the $600.00 and added it to the judgment.

So for any tenants who might be reading this: take a deep breath before you shoot that e-mail off to your landlord. And landlords: keep it cool too. But don't hit "delete" on those e-mails from your tenants either.

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Law Offices of Daniel P. Beaver
1990 N. California Blvd, 8th Floor
Walnut Creek, CA 94596

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