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Legal Q & A – by Richard Beckman

Posted on 01. Aug, 2018 by in all, Magazine Articles

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Question 1: Our long term tenant told me that she has cancer and would like to have a co-tenant with her in her one bedroom apartment (San Francisco rent controlled). Am I obligated to honor her request? If I allow her to have a roommate, am I allowed to raise her rent? In addition, am I allowed to ask for medical proof too?
Answer 1: The San Francisco rent control ordinance allows tenants to add roommates if the total number will not exceed the unit size, and the standard occupancy standard is “2+1,” meaning two people per bedroom plus one more.

The tenant may submit a request to you for approval of a proposed roommate, and unless the applicant has some serious history issues as a tenant, it is likely you would not have a basis to reject her. While your tenant is obligated to submit her roommate request to you in writing, she is not obligated to provide any medical evidence, unless she were requesting a ‘reasonable accommodation,’ which she would likely do if you denied her request for a roommate and she did not have the benefit of the SF law. And if she adds a roommate, the ordinance does not allow a rent increase for that reason.

Question 2: Our tenants are moving out two months before their lease concludes. Can I charge for rekeying the house?
Answer 2: Good question. I assume you would be seeking to deduct that cost from the security deposit. However, the security deposit may only be applied to unpaid rent, cleaning, and damages beyond normal wear and tear, so the lock cost would not be covered by the deposit. While the cost of the lock change could be considered ‘damages’ caused by the breach of the lease, and you could pursue it through small claims court,  a judge might conclude that you would be rekeying at the end of the lease anyway (two months away), and consider that an incidental cost of doing business.

 Question 3: The bathroom in one of the units in my fourplex is very badly damaged due to mold. I just found out last Friday. I’m trying to get a mold remediation company in to fix the problem as soon as possible. It will take the mold remediation company only four business days to fix the issue but the tenants tell me they don’t want to move out temporarily for these four days to stay in a hotel unless I pay for it. I told them I’ll reimburse their pro-rated rent for these days (which is about $66 per day). They refuse to give me the dates and do not answer my calls and text messages. At this point, what shall I do? I’m afraid the mold will cause more damage to my property the longer we wait. Should I serve them a written notice now saying when the mold remediation company is coming and they need to find a hotel during that time? Or do I have to work out a time frame with them? Plus am I required to pay them for the hotel? Thank you so much!
Answer 3:  While you don’t describe how the mold was caused, it appears you are taking responsibility for curing the problem. The landlord has a duty to provide habitable premises and if the premises become uninhabitable the tenant is entitled to compensation for the period of the problem. The amount of compensation is always the tricky part. If the tenants paid rent for a period of time, and are required to temporarily vacate, they are likely entitled to compensation to provide equivalent housing for that paid period. Otherwise, a waiver of the rent due is the minimum, though the tenant can claim they are out of pocket more than the rent by moving costs, higher costs for similar housing etc. It is usually best to start from those two perspectives and try to reach an amicable resolution of the amount, and if unable to do so, submit the matter to small claims court to decide. If you can’t reach an agreement, you may have to serve a notice of entry for the construction dates and simply force the issue. But the better approach almost certainly is reaching an agreement with tenants, in which they vacate while the work is being done (and are able to return when the workers are done for the day if they want). If they can remain in the house while the work is being done (if there is another bathroom that may be an option), then a simple rent abatement may be sufficient.

Question 4: I would like to evict a tenant in my Victorian fourplex in Alameda, CA. What are the rules?
Answer 4: As you probably know, Alameda has had an eviction control law since March 2016, and you will likely need to comply with it in your effort to terminate your tenant’s tenancy. An introduction to the issues you may face can be found at the website below. Depending on the reason you are terminating the tenancy, there are provisions for relocation payments and restrictions on the amount of rent you can charge a subsequent tenant. Once you have a basic understanding of that law and its application to your situation, you may be able to proceed without futher assistance. But if not, you can contact a competent attorney for specific assistance.

http://www.alamedarentprogram.org/forms-termination-of-tenancy/

Question 5: I know the “Information on Bed Bugs” form is now mandatory. Is it mandatory to disclose if the unit ever had bed bugs and when it had them? If one unit had them and no other units did, do you have to disclose to the other units as well? To me this opens up another issue … do you have to disclose if a unit or building has ever had roaches or rodents? Please let me know your thoughts on this. Thanks!
Answer 5: I am not aware of any rule or law that requires the landlord to notify current or prospective tenants about a prior roach or rodent problem. If it were a recurring problem, such notice would probably be required under the general rule of the landlord’s duty to disclose materials facts to a prospective tenant that might negatively impact the tenancy.

The ‘bed bug’ statute does not discuss providing current or prospective tenants notice of prior infestation, and limits the current lessor obligation to that set out in Civil Code 1954.602, below:

(a) A landlord shall not show, rent, or lease to a prospective tenant any vacant dwelling unit that the landlord knows has a current bed bug infestation.

(b) This section does not impose a duty on a landlord to inspect a dwelling unit or the common areas of the premises for bed bugs if the landlord has no notice of a suspected or actual bed bug infestation. If a bed bug infestation is evident on visual inspection, the landlord shall be considered to have notice pursuant to this section.

The statute does require providing all current and prospective tenants with the disclosure set forth below:

On and after July 1, 2017, prior to creating a new tenancy for a dwelling unit, a landlord shall provide a written notice to the prospective tenant as provided in this section. This notice shall be provided to all other tenants by January 1, 2018. The notice shall be in at least 10-point type and shall include, but is not limited to, the following:

(a) General information about bed bug identification, behavior and biology, the importance of cooperation for prevention and treatment, and the importance of and for prompt written reporting of suspected infestations to the landlord.

[Please see AOA’s form #157 – Information About Bed Bugs – AOA members may download this form for FREE by visiting www.aoausa.com.]

Question 6:  In order to sell our building in Berkeley, we need to remove a unit that was created from a larger unit without permits. We can’t do it unless the tenant moves out. Is there a way that we can offer money to the tenant to move without triggering an investigation by the city? If the tenant goes to the city after we pay her does this prohibit a future property owner from increasing the rent on the entire (reunited) unit?
Answer 6: Berkeley’s eviction law provides as a just cause ground for eviction the demolition of a unit, which is often the course taken by owners in your situation. However, of course, that involves working with the city for a permit, etc. There is also the ‘tenant buyout option’ that allows you to offer the tenant money to move out. But you need to comply with the rules of that law, starting with providing the tenant with a pre-negotiation disclosure form, and a copy to the rent board of any complted buy out agreement. You can learn about this option at the rent board’s website at  the website copied below.

https://www.cityofberkeley.info/Rent_Stabilization_Board/Home/Tenant_Buyout_Ordinance.aspx.

However, there is a possibility that a buyout could prohibit a rent increase to market rate for the next tenant. In a somewhat related, published case, the appellate court considered the situation in which an owner move in (OMI) termination notice resulted in a settlement payment to the tenant with a withdrawal of the OMI notice and the tenants’ agreement to vacate in exchange for payment. The landlord then raised the rent to market to the subsequent tenants, who later sought a determination from the rent board that the rent increase was illegal. The  basis for their argument was that the ‘Costa Hawkins’ rent increase right – which is the state law that allows the landlord to set the rent for a new tenancy at market rate  – did not apply when the prior tenancy was terminated for an owner move-in. The owner argued that the OMI notice was withdrawn and so the prior tenancy was not terminated on that ground. However, the court looked past the settlement agreement between the landlord and tenants and found that the tenants did move out in response to the OMI notice, even if they agreed it could be withdrawn.

A buyout is not the same as an OMI termination notice. But it is not clear if a straight buyout that never involved a termination notice would also trigger that Costa Hawkins rule exception. An inquiry to the Berkeley Rent Board is pending and any response will be the subject of a follow up answer.

Question 7: My client is asking for a partial refund of his deposit. His current rent is $2,400.00 and the deposit is $3,800.00. The deposit is higher due to a cat. I just did a walk through and the place is very clean. But I have been a landlord for quite some time and I know how circumstances can change. They have lived in the duplex for three years. There is nothing in our agreement that states that I need to refund the deposit prior to moving out. Please clarify the law and my obligation.
Answer 7: As long as the deposit did not exceed two months’ rent when the tenant moved in, you are correct that you have no duty to return part of the deposit solely to accommodate the tenant’s request.

Question 8: I am renting a house to a tenant who put up a truly ugly fence around the front yard without my permission and also put up a greenhouse. It is an eye sore and I think dangerous for the neighbors because of drug dealings. Can I send my crew and remove the fence or can I evict her?
Answer 8: If your lease prohibits alterations without your prior approval (which most leases do) and it is apparent the tenant has breached that provision, you can serve a three day notice to cure or quit. If she fails to do so you can initiate the eviction lawsuit known as the unlawful detainer lawsuit. You may also have a nuisance basis to terminate, but that is less clear.

If the unit is not covered by a local eviction control law, and the rental agreement is month to month, you may also simply send a notice of termination of tenancy on 30 or 60 days’ notice, depending on if the tenant has been there more than one year.

Question 9: I strongly suspect that one of my tenants has sublet a portion of their apartment without any prior approval and done so despite what their rental agreement states. They have installed bi-fold doors to block off the living room and make it a private space. There is a man living in their apartment with them while he is attending school and he is not family (he told me so). This brings the apartment occupants to a total of three adults and two children in a two bedroom apartment rented out to two adults with their children. How do I approach this? I don’t have hard evidence.
Answer 9: If your lease prohibits subletting without your prior approval (which most leases do) and you believe the tenant has breached that provision, you can serve three day notice to cure or quit, or, if you prefer and believe you have the evidence to prove the breach, a three day notice to quit (without opportunity to cure).

As with the inquiry above regarding the ugly fence, if the rental agreement is month-to-month and not subject to rent control, you may also simply send a notice of termination of tenancy on 30 or 60 days’ notice, depending on whether the tenant has been there more than one year or not.

 

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