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  1. #1

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    covenant of quiet enjoyment

    Jurisdiction / State: California

    First, let me apologize for the length of this, however, there have been many incidences that have led to my current situation.

    My husband, our 2 children and I moved into a duplex about 6 months ago. On the property there are three other units, including a carriage house,a house residing in the back of the property, and unit beneath me with a common area inbetween. About 1 month after moving in, I was in the common area at around 3:00 pm with my children. They were playing on their ride on toys when we were approached by the neighbor in the back who in a rather rude tone told me that she didn't want me turning the place into a "preschool". Not wanting to engage in a verbal altercation with her I walked away and informed my husband. He in turn tried to call her to resolve the matter and in the end she told him to "take the kids to the park" and that we weren't allowed back there. We instantly reported the incident to our landlords who simply told us to ignore her.

    Approximately 2 weeks later, again, we were in the common area with our children when my husband was approached by the same tenant and was called a "jackass" in front of our children. Again, we reported the incident to the landlords insisting that something be done, and, again, we were told to ignore her.



    Each and every time I was in the common area with my children, I was stared down by or approached by this tenant who insisted on getting into verbal altercations with me; the last of which she tried to insinuate that I was trying to steal stuff out of her garage and threatened to get a restraining order and call the police. I know for myself that I was doing nothing wrong but, this was all said in front of my children. I haven't felt comfortable taking my children into the common area since then. The landlords have been notified each time and know of my growing worries about the other tenant but do nothing but tell me that they will "give her a call".

    There is also an issue with the tenant that lives below us. We don't know exactly what happened, but, when we first moved in she was very nice and inviting, however, things severly changed about 2 months ago. She began to become disrepectful when we asked that one of her guests not smoke on the front porch. (An area that is shared between the two of us, as our front door is also on the porch.) The smoke could be smelled in my daughter's room directly above the porch. In the past month she started displaying satanic books and decor in here front windows next to our main entrance, and has twice played extremely loud music after 10:00pm waking up my daughter. Once we called the police ,who never responded, and when she did not respond to any of our phone calls we tried ringing her doorbell to ask her personally. After about 45 minutes, we started banging on the door and audibly asking her to turn down the music. This went on until 11:30pm on a wednesday night. We reported it to our landlords and told them that we felt like the situation was progressing past a reasonable point and we wanted to terminate our lease. Once again, they responded with "we'll give her a call".

    The second time this happened and we tried to contact her, she called the police and said that we were trying to break into her apartment. My husband was standing on the front porch, not knowing what she had done, about to call the cops himself when all of a sudden he had guns drawn on him and helicopter lights. Two days later, the same tenant waited at her window next to our back door and told my husband that she hopes he dies! Then when he became startled and asked what she said, she blew a rape horn and told all of the neighbors that he was harrassing her!! I was at the top of the stairs and can bear witness to the fact that he said nothing to her...he was half way in the door when she said something to him that made him stop. We reported both incidences to landlords who did finally agree over the phone that us moving would be best.

    Since, I have found another place and have tried repeatedly to get in touch with the landlords to give notice and discuss the last month's rent. They refuse to get back to us. We do not have their mailing address as they gave us self addressed envelopes for our rent checks and had run out of them...the rental agreement did not have their address, nor, can I find it on the web. We repeatedly (several times a day) left messages for them to contact us immediately pertaining to the matter. It's been over a week! Now we are being served with a 3 day notice to pay the full month's rent or quit! We aren't even going to be here a full month, and from the first time that we tried to notify them it would have been a full 30 day nothice. What do I do!!!!

    Does anyone know the California civil code for quiet enjoyment?

    Thanks


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    Not a C.C.C.P., But a C.E. or an A.D.!

    The Covenant of Quiet Enjoyment IS NOT a California Code of Civil Procedure!

    The Covenant of Quiet Enjoyment is an implied (sometimes expressed) warranty by the landlord read into every lease by the courts, the breach of which brings about a “Constructive Eviction.” In other words, if there is any interference with a tenant’s right to quite enjoyment of his property and the interference goes unchecked and uncured by the landlord, he (the landlord) is then said to have breached the warranty, justifying in the tenant to withhold rent or abandon the lease, in which case the breach of the Covenant becomes an Affirmative Defense for the tenant in any suit brought by the landlord.

    Also, keep in mind that by constructively evicting you, the landlord may well be required to compensate you for the moving fees and any other expenses you might incur as a direct result of the constructive eviction.

    It is good that you are moving out, but you have to keep a very close eye on what will follow from the 3-Day Pay or Quit notice which may well be an action by the landlord for any unpaid rent and for the value of the remaining lease period. Or, you can nip things in the bud right now by writing to the landlord explaining the proper (legal) reason for your abandoning the lease and letting him know in no uncertain terms that if sued, you will counter claim by way of an answer for his breach of the covenant of quite enjoyment.

    Alternatively, you may want to consider a preemptive strike by taking the upper hand, or seizing the initiative, or taking the high ground (or any other such cliché) and just commence right away a small-claims action for damages against the landlord for his breaching of the covenant.

    That decision is yours, but from the information given in your post, it sounds very much like you have the absolute advantage over the landlord, but still, DO NOT leave this man to his own devices by thinking that your moving out is going to be the end of the saga, because you may suddenly find your wages are being garnished to satisfy the claim of a Judgment Creditor; otherwise known as the landlord.

    fredrikklaw
    Last edited by fredrikklaw; 06-05-2010 at 11:34 PM.
    Only a lawyer can use 10,000 words to write a documewnt and then call it a Brief!

  3. #3

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    A. California Civil Code Section 1927 provides all tenants with the Warranty of Quiet Enjoyment

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