Realtor Right to Access a Unit Under California Law
Can a Realtor enter a unit?
Yes. A real estate agent can enter a unit to show it to prospective tenants or prospective purchasers. Cal. Civ. Code § 1954.
What must a Realtor do before they can enter a unit?
To show the unit to prospective tenants or purchasers a Notice of Intent to Enter must first be delivered to the resident. This gives the resident “reasonable notice” of the date, time and reason for the proposed entry. “Reasonable” notice is twenty-four hours, unless it can be proven that this is not enough notice. This notice must be made in writing and can either be personally delivered to the tenant, left with someone of a suitable age and discretion on the premises, or, left on, near or under the usual entry door of the unit. The notice can be given orally, in person, or by phone, but only if the Realtor has given the tenant written notice within 120 days of this oral notice that the property is for sale and that the Realtor may be contacting the tenant orally for the purpose of giving notice to enter the unit. When a Realtor eventually enters the unit they must leave written notice of their entry inside the unit.
When is a Notice of Intent to Enter not required?
- To respond to an emergency;
- If the tenant is present and consents to the entry at the time of entry; or
- After the tenant has abandoned or surrendered the unit.
Are there limits on the days/times a Realtor may enter a unit?
Unless otherwise agreed to, the entry may only be scheduled for normal business hours (Monday-Friday, 8 a.m. to 5 p.m.). Cal. Civ. Code § 1954(d). However, if a landlord’s real estate agent or real estate broker is entering the unit to show it to prospective purchasers or renters, or to hold an open house, hours during the weekends are considered to be within “normal business hours” for those types of activities.
In a recent case, the court held that “the term “normal business hours” in section 1954 means objectively reasonable hours under the facts and circumstances of the case, keeping in mind the right of tenants to quiet enjoyment and the right of landlords to sell their property. Thus when a landlord seeks to exhibit a leased dwelling unit to prospective or actual purchasers, he or she may only enter the property during reasonable hours, unless the tenant consents to another time.” Dromy v. Lukovsky, 219 Cal. App. 4th 278, 286 (2013). The court in that case affirmed the lower court’s decision that allowed the landlord to show the unit for sale during limited hours on weekends. Id at 280.
Agents cannot abuse the right of access and breach the covenant of quiet enjoyment
The Realtor, real estate agent or real estate broker may not abuse their right of access or use it to harass the tenant. Cal. Civ. Code § 1954(c). Harassment includes aggressive methods, coercion, fraud, intimidation, or disrupting the tenant’s right to the “quiet enjoyment”.
This covenant of quiet enjoyment is implied in all California leases, and places a duty on the landlord to ensure the tenant’s peaceful possession of their unit. Cal. Civ. Code § 1927. This protects the tenant’s right to privacy and peace and quiet.
If the agent is interrupting the tenant’s quiet enjoyment of their home and is harassing the tenant by continually entering the unit contrary to the law, the tenant can call the police and should also consult with an attorney. Landlords and their Realtor, real estate agent or real estate broker who are found to have harassed tenants are liable for punitive damages of up to $2,000 for each violation. Cal. Civ. Code § 1940.2.
The City of San Francisco, the City of Oakland, the City of Berkeley and the City of San Jose all have local anti-harassment laws that provide for money damages. S.F. Cal., Rent Ordinance § 37.10B, Oakland, Cal., Mun. Code § 8.22.600, Berkeley, Cal., Mun. Code § 13.79.060 and San Jose, Cal., Mun Code § 17.23.1270. These statutes specifically state that it is harassment to abuse the right of entry.
Are there entrance restrictions arising from COVID-19?
The California Association of Realtors has published their Guidelines for Best Real Estate Practices During COVID-19, consistent with Governor Newsom’s stay at home order issued March 19th 2020, and incorporating the directives of the California Departments of Public Health and Industrial Relations Cal/ OSHA) “COVID-19 INDUSTRY GUIDANCE: Real Estate Transactions” in effect during the Stage 2 Expansion of the “Resilience Roadmap”.
Generally, current guidelines include:
- That Realtors only enter the property if the tenant consents, having been advised of the risks of having persons enter the property;
- Both tenant and Realtor declare that they are not COVID-positive, to the best of their belief. C.A.R. Coronavirus Property Entry Advisory and Declaration (Form PEAD-LR) may be used for this purpose;
- The tenant should remain outside the property while it’s being shown and;
- No more than two persons (other than the agent) should be in the property at the same time.
There may be more restrictive local city and county orders in force.