Using Temporary Restraining Orders to respond to violence or threats by tenants
Temporary Restraining Orders can be sought to immediately control the behavior of bad actors in a rental unit but the court is typically reluctant to order the removal of a tenant from a rental unit through civil harassment proceedings, preferring instead to rely on the unlawful detainer process to secure possession for a landlord.
In the spring of 2020, the policy-making arm of the California judiciary put a halt on nearly all evictions until the legislative branch enacted more permanent solutions to the economic fallout of the pandemic.
In those early days, we were all in a suspended state of ambiguity and for the first time in our legal careers, were unable to get into courts. With subsequent legislation, slumbering courts began hearing cases and like all of us, the legal system attempted to return to a sense of normalcy but make no mistake about it - the courts are not firing on all cylinders.
Trial dates have been pushed far-flung into the future and because of a loss of personnel, a burgeoning caseload, difficulty in impaneling juries, and even a lack of courtrooms, among other impediments, the courts can be slow in resolving disputes. We are seeing some progress, though.
In San Francisco, cases revolving around breaches of the lease are moving at a steady pace. Cases involving health and safety issues are going even faster. Alameda County, which has been notoriously dysfunctional during the pandemic, is also starting to pick up, although nonpayment of rent cases have been pushed to November.
Nonetheless, Bornstein Law has told the rental housing community to avoid litigation unless it is absolutely necessary. Better to work with tenants to obtain rental assistance and iron out any other differences than to rush to court, if at all possible.
Courts are prioritizing the most egregious cases that threaten life or limb.
Under the most recent iteration of state law and the third extension of tenant protections - AB 832 - landlords have to wait until October 1, 2021, to commence an unlawful detainer (eviction) action for nonpayment of rent. In the meantime, an eviction action could be initiated for other reasons unrelated to rent arrears. However, the courts have been slow to hear matters like subletting, unauthorized pets, and other breaches of the lease. These instances are unlikely to present public health and safety.
Yet the courts are hearing cases when there is a danger to tenants, their neighbors, or others. We are referring to domestic violence, arson, drug dealing, prostitution, and other criminal activity.
Are acts “curable” or not?
When the tenant is menacing, Bornstein Law can serve a 3-day notice to quit, and we have to ascertain whether the underlying behavior could be corrected. An easy example might be playing loud music at night. It is a nuisance to neighboring tenants trying to sleep, but conceivably, the offending tenant rocking at night could turn down the volume. It’s curable - the nuisance can be fixed.
Contrast this transgression with, say, a pattern of raucous parties that result in property damage, rival gangs fighting, and police being dispatched. God forbid, someone is severely injured. Or, perhaps, there is a revolving door of people using the rental property to sell or use drugs.
These types of acts are just a couple of examples of acts that are not curable - the behavior is so serious, it can warrant immediate removal of the tenants without affording him or her the opportunity to clean up their act.
Let’s move onto Temporary Restraining Orders, another avenue landlords can use when tenants or other bad actors congregating in and around the rental unit present “great or irreparable harm.”
Dispelling a myth about restraining orders
Normally, we associate restraining orders with acrimony between boyfriend and girlfriend, husband and wife, or a stalker who has romantic affixation on someone that does not want to reciprocate. In fact, there are a whole host of reasons why the courts can grant a restraining order if the parties are not intimately involved or have any familial relationship.
Just to conceptualize, here are a couple of examples. A son of an adult hospital patient who disagrees with the care of his father assaulted a hospital employee and was then ordered to stay away from the facility or have contact with any hospital staff.
Another case in point: An employee of an animal testing laboratory is besieged with harassment by protestors and trespassers congregating in front of the employee’s house and the company was able to obtain a restraining order.
So, you see that a restraining order is not only reserved for the stereotypical “wife-beating” cases. Rather, restraining orders are designed to criminalize harassment, threats, stalking, and abuse of any party that needs to be protected.
The chief advantage of restraining orders
The protected party can call the police to remove the offender without providing proof that any crime was committed beyond the violation of the order. Take, for instance, sitting on a porch. Lounging on a porch, in itself, is not a crime. But if there is a restraining order that requires the unwanted person to stay 100 yards away from the premises, the police can remove/arrest the offender.
As it relates to landlord-tenant relationships
We have typically sought Temporary Restraining Orders (TRO’s) with larger clients who have front desk staff, building managers, maintenance workers, and other personnel who are subjected to harassment and threats of violence. For instance, a disgruntled tenant brandishes a weapon and says, “I have a Colt .45 and I will kill you.” Perhaps the tenant shouts obscenities with threats, pushes employees in the hallway, or slams doors upon any interaction with employees.
As you can imagine, the depravity of conduct can run the gamut. Whether or not the behavior rises to a credible threat demanding a TRO is best evaluated with an attorney.
There is a provision to obtain a Workplace Violence Restraining Violence Order in these instances.
Individual employees cannot seek a TRO on their own. Instead, the employer must petition the court.
A word about smaller landlords with no employees
Clearly, mom and pop landlords without any employees on the book cannot avail a Workplace Violence Restraining Order. Instead, they can seek a Civil Harassment Restraining Order to petition the court for orders to prohibit certain conduct, stay away from the premises, or move out.
This legal vehicle is for landlords who have no intimate relationship with the tenant and are not related by blood.
Of course, rental property owners who rent out a room in their home or own duplexes, triplexes, and the like, are oftentimes living in close proximity to their tenants. This can be a recipe for confrontation, especially when the rent goes unpaid. When friction in the relationship results in violence or threats of violence, a TRO could be considered with proper counsel.
Our strong preference is to avoid the need for a TRO
On the one hand, there are landlords who, from our hard-earned experience, are conflict avoiders and would rather kick the can down the road when the rental relationship sours for whatever reason. On the other hand, there are landlords who are bulls in a china shop and cannot have a productive dialogue with their residents.
We want our clients to be assertive in laying out mutual expectations and using proper, legal protocols to address any concerns, but not be combative. By lowering the temperature in the relationship, our hope to avert any toxic relationship that could quickly escalate into violence or threats of violence.
The cloth cuts both ways
Just as a landlord can seek an injunction when he or she feels threatened, the tenant can also claim harassment and state that they feel they are in danger.
Granted, a TRO is an extreme measure. It is more likely that the landlord is sued for any heavy-handed tactics. If not, there is a provision of AB 832 that increases penalties for illegal lock-outs or other “self-help” eviction measures. Main takeaway: No matter how frustrated a rental property owner is, rules must be followed, or it will come with a price. There is no shortage of tenants’ attorneys willing to right wrongs. We admonish landlords to be patient. Our community is nearing the day when the standard eviction process will return to normal.
If a TRO is warranted, there has to be a blatant threat
In most civil proceedings, the plaintiff can prevail if they show a judge or jury that they have proved their case with a “preponderance of the evidence.” This is a tall bar, but because TRO’s can be so disruptive to someone’s living, the evidentiary standard is ratcheted up even further - there must be “clear and compelling evidence” that the protected party is subjected to harassment or is legitimately concerned for safety.
In order to build this case, landlords should document all correspondence with the tenant and any flare-ups. If the acts call for the intervention of law enforcement, a police report will go a long way to building a storyline in showing the court why the petition should be granted. Witnesses can help, as well.
Once a TRO is obtained, what’s next?
A TRO is designed to remove an imminent threat, but everyone will later have their day in court. With a stroke of a pen and without hearing both sides, a judge can grant a TRO petition, this is just the beginning. A hearing will be scheduled to air out the sides of both parties to decide if the TRO should be continued. Remember, a TRO is temporary and just a quick fix to surgically remove bad actors from the rental unit. There will be a more deliberative process later on.
Restraining orders cannot be used to circumvent the eviction process
Courts will frown upon landlords who attempt to use a TRO in bad faith to displace an unfavorable tenant by skirting around the normal protocols to evict. If over-exuberant owners resort to improper tactics to shoo away renters, liability awaits.
As a sidebar
In some circumstances, a tenant can break the lease without penalty, and one such occurrence is when domestic violence rears its ugly head.
Restraining orders are not reserved for landlords, but can be lodged by tenants to protect them against neighboring other people, if not neighboring residents who pose a threat.
Landlords and property managers are not expected to fully understand the morass of restraining orders and rules concerning the changing of locks in the normal scope of their rental business. When these vexing issues occur, Bornstein Law can assist.
The pandemic has created a pressure cooker in some investment properties with people cooped up or perhaps losing employment, leading to squabbles that can quickly escalate to violence or threats of violence. There are legal mechanisms in place to avert violence, but they should only be used when a credible threat exists and not manipulated to displace rogue tenants who could be transitioned out of the rental unit through more traditional means.