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Legal Q & A by – Richard Beckman

Posted on 01. May, 2019 by in all

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Question 1:  I have a question regarding getting additional security deposit from a tenant in a rent controlled Oakland apartment. Tenant has been in building in Oakland for 20 years. Security deposit is currently $725.00. Current rent is $1,277.00. Would like to increase security deposit to $1300. Can I do so? What form do I use (change in terms of tenancy)? Is this enforceable in Oakland as far as evicting the tenant if they do not pay, or is it small claims court? Or, should we do nothing?

Answer 1: While not a certainty, increases to the security deposit in your situation may be unenforceable. This is because the definition of ‘rent’ under the Oakland Rent Adjustment Program is as follows: “Rent” means the consideration, including any deposit, bonus, benefit, or gratuity demanded or received for, or in connection with, the use or occupancy of rental units and housing services. Such consideration shall include, but not be limited to, moneys and fair value of goods or services rendered to or for the benefit of the landlord under the rental agreement, or in exchange for a rental unit or housing services of any kind.”

That broad description, I believe, includes security deposits.

So, an increase in security deposit would likely be considered an increase in rent. However,  as the RAP states “Notwithstanding any other provision of this Chapter, owners may increase rents only for increases based on the CPI Rent Adjustment or Banking, or by filing a petition to increase rent in excess of that amount. Any rent increase not based on the CPI Rent Adjustment or Banking that is not first approved by the Rent Adjustment Program is void and unenforceable.” So, since the Security Deposit increase would exceed the annual allowable rent increase, it would likely not be valid. You may petition for an increase in the Deposit, and it would be interesting to see how the rent board would treat that petition. If you do so, please let me know how it turns out.

Question 2: My incoming tenants indicated three children on an application of a 3-bedroom home. The three children are those of the incoming tenants. As we were signing of documents, the tenant tells me they also have children from prior marriages; she indicated she has two children who have “visitation” with her every other week during the week; and her husband has one child from prior marriage that has “visitation” every other week during the week the opposite week when the other two children are “visiting”. How does the lease agreement get documented?
Answer 2: For reasons having to with the rules against discrimination on the basis of family, how many minor children the tenants have, full time or part time, is not something the landlord should try to control or even document. There is no value in trying to identify or limit or otherwise affect the tenants’ child-care related living arrangements.

Question 3: How should landlords handle plumbing issues, when tenants call saying the bathroom sinks are clogged and it’s a result of the main line being clogged due to food or hair? Should we let the tenant handle the issue first or take care of it, and if it is due to the tenants’ neglect have them pay for the plumbers cost?
Answer 3:  The question of who is responsible for repairs is the same as who is responsible for the problem. If the tenant caused the problem by misuse, then the tenant is responsible for the cost of repair. The trouble of course is establishing that fact. The tenant will say it is the ‘pipes’ etc., so a plumber will likely be the best (maybe only) person to provide an answer to that question. But the investigation may cost more than the fix…But if it happens repeatedly, a definitive cause should be sought, and an agreement reached with the tenants, if possible, to address their contribution, if any, to the problem. Ultimately, the problem may find its way to court in the form of a small claims fight over who is responsible for the problem and the repair cost. It could also lead to unlawful detainer proceedings based on your demand via three day notice that the tenants pay, and the tenants’ refusal.

Question 4: I rent a room out within our single family home. The six-month lease has expired. What is the best way to notify the tenant that we plan to terminate his tenancy? Is a simple email sufficient?
Answer 4: If the tenant remained in the room after his lease term expired, and absent some unknown facts, he would be officially ‘unlawfully detaining’ the premises, and an unlawful detainer lawsuit could be filed to seek the court order removing him. But if you have accepted rent for any period after the lease expired, you have created a new month to month tenancy, which requires its own notice of termination, and a basic 30 day written notice hand delivered to him would suffice. If he fails to honor that notice, you may need further advice as to invoking the process to compel him to vacate. He may fall under the category of ‘lodger”, as defined in Civil Code Section 19456.5, which is a provision allowing for the removal of such a tenant by the police, avoiding the need for the more complicated unlawful detainer process.

Question 5: I have four unit building in Martinez CA.  One of my tenants has been there a very long time (I inherited him when I purchased the building in 2016). He is a 69 year old male on a fixed income. I have kept his unit far under market due to his age and financial situation. (he pays $1,000 per month, and current market rent is likely $1,800). He has been relatively quiet for the past few years, but recently there has been some escalating drama coming from him. For example, asking to pay rent late so he can “help a friend out” and getting angry when I tell him there would be late fees and consequences for paying rent late. He smokes even though the building is designated non-smoking and it’s apparent to me now he is an alcoholic. Recently we’ve started to have complaints of cockroaches and his apartment is usually fifthly, so it may be related to his lack of cleanliness. I’ve mentioned some of these to him verbally but have done no formal written notices to him on anything.  I’m at the point now that I just want to give him a 60 day notice and send him on his way. Martinez is not under rent control and he’s on a month to month lease so I should be well within my right to terminate his tenancy.
Questions:  On the AOA form for a 60 notice, they use the designation of Plaintiff and Defendant. That seems a bit harsh. I want to try and keep this process as friendly as possible. Is it ok to substitute Resident and Owner onto those slots?  Should I just proceed with the termination without citing a reason, since I’m within my rights to terminate, or are there benefits to citing a reason for terminating …i.e. “we’re renovating the unit and need to bring it up to market rents.”
Should I consider sending him a letter documenting the above- stated violations (smoking, cleanliness) prior or in parallel to sending him the 60-day termination notice? Will that help me, or muddy the waters if for some reason he decided to fight the termination. Or, at this point should I just stick to the fact I’m within my right to terminate and move forward with sending him the termination letter?
Answer 5: Your situation is beyond the scope of the AOA Q&A forum, which does not allow for me to provide specific legal advice on a specific matter. But generally speaking, given his situation (age, condition, financials), he will likely be hard-pressed to find similar housing, and it is possible a local private or public agency may step in at some point and either try to negotiate his stay in your unit or help him relocate. But beyond that, a month to month tenant in a non-rent controlled tenancy may be given a 60 day notice for no reason, as long as the reason is not retaliatory or discriminatory. Your situation does not sound like it would trigger scrutiny under either category, though claims of such motives are easy to make, so it would not be surprising if you were so accused.

But aside from that, you seem to have carefully thought your effort through. Changing the terms on the AOA notice is fine, and I agree – starting out calling the tenant a ‘defendant’ seems unnecessary. As for providing a reason, I suggest you review Civil Code Section 1942.5, which sets out the items a tenant can show which triggered the landlord’s decision to terminate the tenancy and which fall under the category of ‘retaliation.’ While, again, on your facts it does not appear 1942.5 would apply, the provision at section (g) – which requires the owner to state a reason for the termination if any of the above conditions exist –  may justify your stating your reason in the termination notice, as long as you do so briefly and accurately.

Question 6: What is a typical annual rental increase percentage?
Answer 6:  Good question. In rent control cities, the increase is pegged to the inflation rate for the prior year. For example, in SF the permitted increase from March 2019 is 2.6%.  Oakland, which calculates its rent increase on a different schedule (July to June) allows 3.4% increase for increases posted between July 1, 2018 and June 30, 2019.The Berkeley yearly increase is set by taking 65% of the Consumer Price Index for All Urban Consumers in the Bay Area during the period from July 1st through June 30th of the prior year, and the increase for Berkeley during all of 2019 is 2.5%.

That will give you an idea of what inflation based increases are, but if you are not limited by a local rent control law, increases are typically whatever the ‘market’ will bear. But any increase over 10% still runs some risk of violating the state of emergency restrictions on ‘price gouging’ that are in effect related to the major fires of last year.

Question 7:  Hello, I have a tenant who, after being a tenant more than one year, took in a pet dog temporarily for an ill friend. The friend supposedly died and now he sent me a photo of a document that is titled “Assistance dogs of America” that list the name and breed and a registration # 26377, with an issue date of March, 2019. He is now claiming he needs it for emotional support. The neighbors are complaining of the evening noise plus they expected to be in a dog-free fourplex. Does he have the right to keep the dog there considering it came on the scene over a year after the lease signing?
Answer 7: We have covered the issue of ‘emotional support animals’ many times in this Q&A forum, but to summarize, a tenant’s right to an ESA, where the lease provides ‘no pets,’ is very much a fact-specific analysis that involves the tenant’s provision of evidence of a disability and evidence that the ESA is medically necessary to alleviate the disability in some fashion.

Even if the tenant establishes the need for the ESA under the ‘reasonable accommodation  state and federal housing laws, the landlord can still deny permission if there is substantial evidence that the specific animal will cause harm or endanger the comfort, health or safety of others.

Again, the issue is a very fact-specific one, and usually requires a careful review by an experienced legal advisor if the situation warrants (i.e. the owner is very upset about an animal in the otherwise ‘no pets’ building and wants to insure to the degree reasonably possible that the tenant can legally compel the owner to accept his or her ‘ESA’).

Question 8: My complex owner and I (manager) have run into questions about end of month-to-month tenancy. Here are the questions:

Does a tenant need to give us their 30 day notice to coincide with the actual end (30/31st) of a month? Or may they, on the 15th of a given month, say they are out in 30 days, their last day being the 15th of the following month? Owner would like me to clarify that if they leave in the middle of a month, after giving 30 days proper notice, I would then pro-rate the rent so they pay only the portion of the month during which they occupy the apartment. (For this example 15 days.) Second issue: if the departing tenant leaves the apartment in worse condition than would be described by “normal wear and tear”, may I charge them, against their security deposit, pro-rated rent for the actual number of days it takes to clean/repair the apartment in addition to the actual expenses of doing so (housekeeping service, etc.)?  Thank you for your help, as always, with these questions.


Answer 8: The tenant can give their 30 day notice of intent to terminate the tenancy at any point in the month, and their responsibility for rent ends on the 30th day.

As to the security deposit, I strongly recommend that all property owners and managers read Civil Code Section 1950.5, the security deposit statute, as it lays out – quite clearly, I think – the rules of applying, accounting for and returning the tenant’s security deposit. It can be easily found with a simply internet search. But as to your specific question, the deposit can only be applied to cover unpaid rent, damage beyond normal wear and tear, and to clean the unit to the level it was provided to the tenant. While it is understandable the owner would like to charge for the days the unit is not available while it is being cleaned, that is not one of the permitted reasons to charge the deposit.

Richard Beckman of Beckman, Feller & Chang P.C., has been practicing landlord-tenant law for over 26 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 rbeckman@bfc-legal.com or by visiting the website www.bfc-legal.com.

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