In Property Management classes, I have always taught that a listing agent of tenant-occupied property cannot hold an open house over the weekend without the tenant’s permission, for the reason that the applicable statute, California Civil Code section 1954, permits
the agent to enter the leased premises to show the property to prospective buyers only during “normal business hours,” which we have always presumed to mean Monday through Friday, 8 am to 5 pm.
However (score one for the landlord!), a recent California court (Dromy v. Lukovsky (2013 WL 4654568)) found that a landlord’s right to enter leased premises during “normal business hours” 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.”
The court went on to say that residential real estate sales agents customarily hold open houses on weekends, thus weekends are “normal business hours” for those agents.
In light of the Dromy decision, listing agents who want to arrange weekend open houses should obtain the tenant’s consent or comply with the reasonableness standard required by the Dromy court.
In Dromy, the court ordered as follows:
1. Listing agent could hold 2 open houses per month;
2. Open houses could be on weekend days between 1:00 p.m. and 4:30 p.m.;
3. Listing agent must be present during any open house; and
4. Listing agent must give 10-day advance email notice to the tenant of proposed weekend open house dates, and give the tenant 48-hours to acknowledge or provide an alternative weekend date.
While this is a significant victory for landlords and their sales agents, I urge you to keep in mind that it is never wise to enter a rented premise without the tenant’s permission.
So if a tenant refuses to grant you permission for open houses, even with your compliance to the above, you and the landlord should refer to your property manager and/or an attorney for assistance with giving the tenant notice to comply or quit (vacate the premises).
We now have this decision in our arsenal, which should make it easier to deal with this age-old problem.
Jan Leasure, Managing Broker
Monterey Bay Property Management
816 Wave Street, Monterey, CA 93940
831 658 4003; FAX 831 658 4011
