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Legal Q & A – by Richard Beckman, Attorney

Posted on 01. Mar, 2017 by in all

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Question 1: I am in the process of renting my single family home in Danville, CA, and I did specify in the ad that “no pets” are allowed. I have two legal questions:
1) A potential applicant called me and told me that she has a “service” dog. Can I legally tell her, over the phone, that ‘no pet’ means ‘no pet’?
2)  I had another potential applicant who I found out from public records is a registered sex offender. Assuming he is otherwise qualified for the house, can I legally reject him because is a registered sex offender? I am trying to make some sense/connection out of the article “landlord fined thousands for discriminating against felons!” in AOAUSA December 2016 edition. 
Answer 1: If a prospective tenant has an actual ‘service’ animal, it is not a ‘pet,’ and cannot be excluded from the premises. As previous items in this column have noted in more detail, “Service animals” and ‘comfort pets’ are two different beasts, so to speak, and governed by different standards. But a “service animal” is highly trained, and is accorded statutory rights to stay with its owner.

As to the sex offender applicant, sex offenders are not (yet) a ‘protected class (meaning they may not be discriminated against solely on that basis), so there is no blanket prohibition on renting or not renting to a registered sex offender. However, using Megan’s Law information (identifying a registered sex offender from the state database, as it appears you may have done) for purposes of denying housing is permissible only if necessary to ‘protect a person at risk.’ The statute does not make this phrase clear (and below is a quote from the state’s website on Megan’s Law at https://meganslaw.ca.gov/), but I interpret it to mean the presence of children in the vicinity of the proposed housing. In other words, if your unit is near minors, rejecting the applicant would likely be acceptable. Oddly, if the applicant self-identified as a RSO, then there is no prohibition to rejection based on the sex offender status. It is only if you learned of the status via the state database that the extra provision regarding a ‘person at risk’ is invoked.

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As to the AOA article, that refers to a Washington state law that is modeled after a recent HUD regulatory change that seeks to prohibit the blanket rejection of felons from housing.  Under the recent HUD guidelines, the applicant should be allowed to explain the nature of the felony (pot sales versus armed home invasion, for example) before being rejected. While that HUD regulation has not yet been formally incorporated into California state housing law, blanket rejections based on criminal convictions could generate liability.

Question 2: We believe a tenant’s boyfriend has been living in the apartment. Other tenants see him leave in the morning after the tenant leaves for work. The tenant denies it. So, can we ask her for proof that the boyfriend lives somewhere else, like a copy of his lease?
Answer 2: It is always a tricky thing when you suspect another person is sharing a tenant’s unit. She is permitted to have overnight guests, presumably, and sometimes it is very difficult to gauge when the guest morphs into the roommate.

You can always simply contact the tenant, express your concerns, and your observations, and ask for her reply. However, her response, as you indicate above, may not be convincing.

If you have a reasonable basis to believe she is violating a lease provision against subletting, and you do not get assurance from her to the contrary, you can always get aggressive and serve a three day notice to cure or quit, followed, depending on her response, with an unlawful detainer, during which you will learn through the discovery process whether she was actually in breach of the lease.

Question 3:   I had a nice older woman come to look at an apartment I have for rent.  Because of her income level, she asked if she could have someone co-sign for her. She is handicapped and the unit is upstairs. It seems that is not the best option for her given her handicap. Although I did not reject her for the co-signer reason, I did not tell her that I do not do co-signs and allowed her to submit an application. She then did various things like losing the application, forgetting where my mailbox was located after I showed it to her, and sticking her co-signer’s information on my door, all of which makes me reluctant to rent to her. However, I am concerned that rejecting her now will cause her to think it is because of her handicap.
Answer 3: There are several ‘moving parts’ to your question. The issues of disability, reasonable accommodation and her somewhat haphazard conduct are all involved, and rule out any definitive response to your question. As to the co-signer, there is a case very clearly holding that if an applicant needs a co-signer because a disability precludes her from earning the amount required, it is a required reasonable accommodation to permit a co-signer/guarantor. Of course, if the co-signer’s credit is not adequate, you can reject on that ground. As to the unorthodox behavior, pretend the applicant did not demonstrate any disability, and decide if that conduct would be enough to reject her application. If so, then (assuming you were believed, and that conduct itself were not the result of a disability), you would not be rejecting her based on her physical handicap, which, by the way, is the only clear issue here – you CANNOT discriminate against her based on her physical appearance or condition. If she does not rule out a second floor unit, you may not do it for her.

Question 4: Is it legal in Berkeley to photograph applicants and tenants for documentation?
Answer 4: Good question, and I am unaware of any specific law on that question. You can ask, but I don’t think the applicant has to agree. You can, presumably, reject the applicant on that basis, since I don’t know of any protection afforded an applicant who refuses to be photographed. However, I could make an argument that it would be a presumptive retaliation to reject an applicant for refusing to be photographed, and the question would be, why do you need to photograph applicants? As to photos of actual tenants, that would seem to make more sense, and I know of no prohibition to that request, and believe you could make it a condition of accepting the tenancy. It allows the property owner or manager to verify the identity of someone claiming to be a tenant, or to confirm any questions of identify should they arise.

Question 5: I have a non-conforming Oakland unit that I want to stop renting. The tenant has been there several years. We do not have a signed rental agreement. I have the following questions.
1)  Am I required by Measure EE to give a specific reason for the asking tenant to move out on the 60 Day Notice to Move Out?
2)  If it is considered a month to month tenancy, can it be terminated at the end of any given month?
3)  Does the 60 days after service of the 60 Day Notice to Move Out include Saturdays and Sundays or just Mondays through Fridays?
Answer 5: First, yes, that tenancy would be subject to Measure EE (absent some exemption such as owner occupied building, or date of construction), and any notice of termination would require ‘just cause’. As to the specific just cause, the option to remove a non-permitted unit in Oakland is not completely clear, and you should consult with a competent professional as to the issues involved in such an effort.

A month to month tenancy can be terminated at any time, absent the ‘just cause’ issue, and can expire on any day of the month. The notice period inlcudes weekends and holidays, but cannot expire on either, meaning if the 60th day falls on a weekend or holiday, the tenant’s last day in legal possession extends to the end of the following day.

Question 6: Can we legally tell a renter that has moved out and left behind a small repair list, but a huge cockroach problem that we didn’t have before he moved in, that because of these repairs plus the roach problem we have been unable to rent out the house and subsequently will not be giving him any of his deposit back. Before he moved in, we had the house professionally cleaned. After he moved out, the same person professionally cleaned it and told us about a cockroach infestation. We have had several pest control services out but cannot rent out the house because we can’t get rid of the cockroaches. Because of this and other repairs, we do not feel he should be entitled to his deposit. His deposit was $1,800.00, and the repairs were $900.00. The house rents for $1,800.00, and we have already lost one month’s rent because of the roach problem. Is this legal?
Answer 6: First, of course, regardless of the actual ‘numbers’, you have a legal duty to provide the former tenants with a detailed accounting of the security deposit within 21 days of the date they moved out. If you have evidence they created a roach problem, then you can seek to hold them accountable for the cost of remediating the problem. Holding them responsible for lost income from failure to re-rent is less clear.

The security deposit return statute limits deductions to damages beyond normal wear and tear, cleaning and unpaid rent. Arguably, you could claim the lost income under the ‘damages beyond normal wear and tear,’ as the time it took to fix the damages caused you to lose rent. If the tenant challenges the amount you withhold he or she will typically try small claims court for a third party (court) review. I don’t know how a small claims judge would handle that, but it’s not an unreasonable argument.

Question 7:  One of my Oakland tenants is complaining about the other unit’s tenant smoking in the garage below them and they can smell it in their apartment.. Is there anything I can do, like make them smoke somewhere else, or not smoke at all at the unit including the garage and outside area?
Answer 7:  You should be able to change the terms of tenancy to prohibit smoking in any of the common areas. Depending on how many units are in the building, you may have a duty to do so, and to post signage in front of the entrances regarding ‘no smoking’ within a certain distance.

Prohibiting smoking in the tenant’s unit should also be permitted if it is impacting other tenants, though that might face more resistance. The tenant can argue smoking is a ‘housing service’ and that any curtailment or loss of that right should result in a rent deduction. This may be a matter the Oakland rent board will ultimately be asked to decide, based on a tenant petition. However, it could also result in legal action if you notify the tenant of the new terms and the tenant fails to observe them. As with most contentious landlord-tenant issues in rent controlled cities, professional guidance is often the best course.

You can review the Oakland smoking pollution control ordinance at www.municode.com/library/ca/oakland/codes/code_of_ordinances?nodeId=TIT8HESA_CH8.30SM.

Question 8: My former tenant was evicted by the Sheriff. I understand I have to hold their property for 15 days, but what do I have to send them to advise them of this?
Answer 8: If the tenant was actually evicted by the Sheriff who was executing a writ of possession, then the sheriff’s documents notified the tenant of the 15 day period to reclaim abandoned property. In that case, all you have to do is wait the 15 days. It is always worth reviewing the applicable statute for the details of the landlord’s obligations to the tenant who vacates (either voluntarily or by eviction) but who leaves items behind. Compliance with the statute is a shield against claims by the former tenant regarding eventual disposition of the tenant’s abandoned property. The statute is Civil Code Sections 1983 through 1990.

Question 9: I am interested in showing my condo in downtown Oakland to prospective real estate agents for listing and need to decide which agent is best for me to use. Therefore, I have not signed a listing agreement yet, but I want access to my condo so the agent can take a look to get their opinion and thoughts. My tenant is a real estate agent and I want to know my rights to access the condo with my own keys if she is being difficult. She is on a month to month lease after her one year lease ended two years ago, using the AOA lease form. Can I give 24 hour notice and access the condo without her permission? What can I do to access it if she appears to be uncooperative? She has given me notice to vacate in three weeks because she does not wish to be disturbed in our process to list the condo for sale.
Answer 9:  You and the tenant both have statutory rights regarding your right to enter with proper notice for a proper purpose, including your right to show the unit to prospective purchasers, agents and contractors, and the tenant’s rights of privacy and quiet enjoyment. The upshot is that if she is truly vacating in three weeks, it might be best all around to just wait until she vacates and then you can enter at your pleasure. If that is too long to wait, you should be familiar with the rules of entry under Civil Code Section 1954, and try to use those rules accordingly, and also work with the tenant as much as possible to accommodate both of your legitimate rights regarding access to the unit.

Question 10:  A 60-day notice was given to a tenant and the tenant has stated that they will not be moving. She cited that due to health problems and lack of people to help, she cannot move. The tenant says that they will take us to court and she can’t be forced to move. The 60-day was a no-cause. Is there a reason that this would be fought in court?

Answer 10: If the 60 day notice was properly served and worded, the tenant has little defense to an eviction action, unless there are significant additional facts that might indicate retaliation or discrimination on your part. However, ‘hard times’ is not a defense, as much as it might generate sympathy from a court or jury. You may consider working with her in terms of perhaps giving her some additional time to move. However, if she simply refuses to cooperate, you probably have no choice but to file the unlawful detainer action at the expiration of the notice, or withdraw the notice and allow the tenancy to continue.

ALERTS AND UPDATES:

A reader alerted me to a typographical error in the December column regarding the recent passage of Alameda’s rent control law in November. The reference to the voters’ passage of Measure M1 should have been to Measure L1.

 

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 24 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 415-871-0070; email rich@beckmanblairllp.com or by visiting the website www.beckmanblairllp.com.