What Do We Do When the Tenant is Dealing Drugs?
Recently a long-standing client of our firm requested a letter from our firm dealing with the recurrent concern in the industry of a tenant utilizing their apartment to sell illegal drugs. Specifically we are presented with the scenario of a tenant in a residential (or commercial) property who is suspected of engaging in illegal activity, particularly the sale, use, disposition, manufacture, distribution, control, solicitation or possession of illegal drugs/controlled substances. What is the checklist approach to this concern?
Paper the tenant file. Make clear and precise notes regarding complaining witnesses, whether the same are other residents, management, staff, vendors, or guests, with full names, addresses, phone numbers, and the usual "who, what, when, where, why and how" of the incident(s) immediately after the event.
Contact the Police
When the event provides a reasonable suspicion that criminal activity is occurring, contact the police department, provide whatever information can be confirmed on personal knowledge of the complainant, and ask whether the premises are under surveillance, or will be. This contact should be noted, with the name of the officer, his telephone number, and the nature of his assignment (for example, is he with the "drug abatement task force" or does he work in a different division?).
Review the Tenancy
Review the nature of the tenancy. Is this a month-to-month agreement, or a lease for a specific term? Regardless, either is terminable on three days' notice to quit, if the circumstances rise to the appropriate severity.
1. If month-to-month, consider a 30-day notice, given a reasonable suspicion that this activity is occurring. If a lease, what is the date of termination? Are there any options held by the lessee to extend the lease? If the lease will be expiring, notify the lessee that it will not be extended at termination, and they will be required to vacate the premises. You are not required to give a reason. Review the holdover provision in the lease, to confirm whether prior notice of election not to renew is a prerequisite, and if so, comply. Contact counsel if any question.
2. Note that a lease is not easily terminable on suspicion of drug activity. Forfeiture of a lease is a significant judicial finding that is not easily achieved. An arrest on the premises, seizure of narcotics, testimony of witnesses who observed the activity, and confirmation of the illegal contraband, as well as a police report authenticated by arresting officers in court, will produce favorable results for the lessor in trial.
Secondhand statements that brown baggies were being passed between the parties, tin foil items, exchange of cash, or the aroma of marijuana, in the absence of confirmation by a qualified witness or the contraband itself, invites cross-examination in court that may lead the judge to conclude that the lessor has not shown, by a preponderance of the evidence (more likely than not) that nuisance activity has occurred. Nuisance is defined in the code as conduct "injurious to health, including, but not limited to, the illegal sale of controlled substances. . ." (California Civil Code ¤3479). Given the above fact pattern, if we don't prove it more likely than not that the sale occurred, we will not be successful in removing the tenant from the property.
Are There Witness Agendas?
Confirm that there are no hidden agendas being served by the complaints of witnesses. Do we have a personality conflict that is getting out of hand? These issues become paramount when court action and credibility concerns are center stage. Independent corroboration is the key.
Review Drug Management Procedures
Review procedures with staff, employees, and police resource personnel. Are we doing everything we can to educate our people and utilize public programs? Participation in the "crime-free multi-housing" programs sponsored by local police departments will ensure current events updating. And our firm will continue to provide seminars on this important topic.
Zero tolerance remains the norm in the apartment industry, regardless of legal inroads into medicinal use of marijuana. If you have reason to believe there is a problem in your complex, feel free to give us a call to discuss particulars. Being "drug free" is not just a state of mind; it can be a state of reality!
(Bob Thorn is a partner with Kimball, Tirey, and St. John and a principal in the firm's Civil Real Estate Practice Group. The law firm emphasis is real estate law and represents clients throughout California. 800-338-6039.)
The above discussion is general in nature and should not be construed as individualized legal advice. Readers are cautioned to seek individualized legal assistance based on a detailed analysis of their particular facts and circumstances. If you have any questions regarding the above material or any other matter involving landlord-tenant issues, you may contact the Law Offices of Kimball, Tirey & St. John, 800-338-6039.