Monday, April 27, 2015

Legal Definitions - W


Waive – To voluntarily give up something. Most tenants want the landlord to waive the rent owed, if they agree to move out. Approximately fifty percent of landlords will agree to this, provided the tenant moves out on time, usually within 30 days, and leaves the property clean and undamaged. The other fifty percent of landlords want a money judgment for the rent owed.

Warranty of habitability - Implied in a residential lease, usually does NOT apply in a commercial lease unless specifically written into the lease. Most states impose certain duties on a landlord to maintain residential premises in habitable condition, including adequate weatherproofing, heat, water and electricity, and clean, sanitary and structurally safe premises. If those conditions are lacking, it may be legal justification for a tenant's defensive acts, such as moving out (even in the middle of a lease), paying less rent, withholding the entire rent until the problem is fixed, making necessary repairs (or hiring someone to make them and deducting the cost from next month's rent). A landlord who consistently does NOT maintain the premises in habitable condition is generally called a slumlord.

Waste – Damage to real property caused by a tenant [other than normal wear and tear], which lessens its value to the owner. Waste I have encountered with my clients include tenants discarding items into swimming pools, marking walls, punching holes in walls or doors, breaking the hinges of cabinets and doors, taking a sledgehammer to the kitchen counters, allowing the grass and landscaping to wither and die, and burning down the premises.

With prejudice – A dismissal with prejudice means the dismissed case cannot be brought again, or the court's order on the motion is final. Opposite of “without prejudice” which means the party retains the right to file a new case [or new motion] on the same claim.

Writ of possession – A written order of the court, authorizing and directing the Sheriff to evict the occupants of real property. When the court grants judgment in favor of the plaintiff/landlord, the clerk then issues a writ of possession. That writ is delivered to the Sheriff, who then forcibly evicts the occupants from the property if they don't move out voluntarily prior to the date the Sheriff arrives. Most of the time in CA, it takes about 2-3 weeks after the court grants judgment, for the actual eviction to occur. I have heard that in some states, the Sheriff arrives the same day, or within five days, of the court's judgment. And in some states, the Sheriff will place all of the occupant's personal property outside at the curb. That does NOT happen in CA - the former occupants have 15 days to make an appointment to come back and retrieve their personal property, and the landlord must safely store the property for that time.

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