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Legal Q & A By-Richard Beckman

Posted on 01. Apr, 2020 by in all

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 Question 1: My tenant complained about mold after a recent rain, and it’s the first I’ve heard of any problem with any water intrusion into the apartment (apparently, there was a cracked window that allowed a small amount of moisture to seep in which eventually resulted in mold below the window). The tenant is threatening to ‘take action’ if I don’t immediately fix it and waive the rent for the time he has complained until the mold is removed. Any suggestions?

Answer 1: The landlord is obligated to maintain the habitability of the unit, which would include insuring the unit does not contain window cracks that allow water to enter, or the presence of  harmful mold (not all molds are ‘legally’ harmful, such as “mold that is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use.” HSC§17920.3(a)(13). However, the landlord is not required to repair a dilapidation relating to the presence of mold, until the landlord has notice of the problem. So, while you are obligated to repair the problem (the cracked window and the resulting mold), it is questionable whether the tenant has any remedy beyond that. The result would be different if you had prior knowledge of the cracked window, as it is reasonably foreseeable that such condition would allow water to intrude and result in mold. In that case, the tenant may be entitled to some additional compensation for the existence of the mold. But unless the mold had accumulated to a significant degree, and affected the tenant or his possessions, it is difficult to quantify what such compensation might include.

 

Question 2: My tenants want to hang some sort of laundry line in the backyard of the house I rent to them, but I am concerned my property neighbors will complain because the house is in a nice neighborhood. The lease doesn’t say anything about it, but they are waiting for my answer. Can I refuse, and do I need any specific reason?

Answer 2: Depending on what exactly the tenants are proposing, they may be legally entitled to make that change to the backyard. According to Cal. Civ. Code § 1940.20, a tenant may utilize a clothesline (or ‘drying rack’) in the tenant’s “private area” if all of the following conditions are met:

(1) The clothesline or drying rack will not interfere with the maintenance of the rental property.

(2) The clothesline or drying rack will not create a health or safety hazard, block doorways, or interfere with walkways or utility service equipment.

(3) The tenant seeks the landlord’s consent before affixing a clothesline to a building.

(4) Use of the clothesline or drying rack does not violate reasonable time or location restrictions imposed by the landlord.

(5) The tenant has received approval of the clothesline or drying rack, or the type of clothesline or drying rack, from the landlord.

For purposes of the rule, “Clothesline” includes a cord, rope, or wire from which laundered items may be hung to dry or air. A balcony, railing, awning, or other part of a structure or building shall not qualify as a clothesline. “Drying rack” means an apparatus from which laundered items may be hung to dry or air. A balcony, railing, awning, or other part of a structure or building shall not qualify as a drying rack. “Private area” means an outdoor area or an area in the tenant’s premises enclosed by a wall or fence with access from a door of the premises.

 

Question 3: An annual walkthrough of units is advised. What does one look for and is there a form to use?

Answer 3: An annual ‘walkthrough’ is not a right provided by the state laws on the landlord’s right of entry, which is governed by Civil Code Section 1954, a copy of which is easily found by a basic internet search. 

However, there is a right of entry under Health & Safety Code § 17926.1 that permits the landlord to inspect the CO2 (carbon monoxide) detectors in the unit, at which time a look around the unit would likely be available. At such opportunity, you may ask the tenants if they have any complaints or concerns, and bring to the tenant’s attention any problems with the unit that the lessor notes (e.g. I see the shades are broken. What happened there? Or, I note this water stain on the ceiling, what happened there? etc.). However, the right of entry may not be abused, in the sense that the entry must be for a legitimate purpose, and not meant to harass the tenant or for purposes other than the stated reason used for the entry.

As for a form, I believe AOA has a form for use when the tenant moves in and moves out, which is basically a checklist of the property components, and a request that the tenant identify any issues he or she is aware of. There is probably no reason not to provide the tenant with that form, and ask them to notify you of any problems. Their failure to do so would work strongly against any subsequent claims by the tenant as to habitability issues that could have been identified at the time.

 

Question 4: Can an owner of a 4-unit apartment building in San Francisco evict a tenant to allow her grandson to occupy the apartment? Is there a financial relocation settlement required for the two tenants and child affected?
Answer 4: Yes. Under the SF rent ordinance, ‘Relative move-in’ rights include the landlord’s “grandparents, grandchildren, parents, children, brother or sister, or the landlords spouse or the spouses of such relations. (It is worth noting that the various local rent control laws are not the same. For example, the applicable Oakland version – Measure EE – does not include grandchildren in the class of relatives for whom a tenant may be evicted for the relative to move in).

The relocation payment, based on the Rent Board’s current relocation payment form, would be $6,980.00 per ‘eligible tenant (which is “any authorized occupant of a rental unit, regardless of age, who has resided in the unit for 12 or more months”). The relocation payment for eligible tenants is capped at a maximum of three, so the total would not exceed $20,939.00. However, if there is a minor child in the home, or an elderly or disabled person, there is an additional payment due of $4,654.00 (no matter how many minors, though each elderly or disabled tenant is entitled to that additional payment). As you can see, the relocation payment can exceed $25,000.00, depending on the number and type of tenants/occupants in the home. 

 

Question 5: We signed a month to month lease with a tenant who moved on December 15, 2019. We have a clearly stated and written clause in our lease agreement that our apartments are non-smoking, and it is a non-smoking building. It was clearly explained/read to the tenants at the time of the lease signing and spelled out in writing. However, the tenants were caught smoking Marijuana inside the apartment. When confronted, they denied smoking. I provided them with a warning letter the same day. Our lease agreement states that any material breach of the lease agreement will terminate the lease. Now with regards to AB-1482 can I terminate their lease without giving them any cause since I know these pot heads will not stop smoking once they are hooked, or do I need to provide them with a cause since in essence it has been less than 30 days since they have moved in? 

Answer 5: The tenants are entitled to the benefits of, and bound by the restrictions of, the lease, as supplemented by AB 1482, which requires ‘just cause’ to terminate the tenancy. Since the tenants violated the lease prohibition on smoking (assuming you can prove it if challenged), you are permitted to serve them a three day notice to stop violating that provision, and if they fail to cease that conduct, terminate the tenancy by either acting on the three day notice, or serving a 30 day notice of termination.

 

Question 6:  I have a tenant with whom I have a month-to-month agreement. Her tenancy began in March 2018 at a specific address. By mutual agreement in April of 2019 she moved to another address. Upon the move from one address to the other we signed a new month to month agreement.  I now want to sell the property in which she resides and would like the property empty to do so. Based on the information I’ve given you do I owe her a 30 day notice to vacate or 60 day?
Answer 6: I believe she is likely entitled to only the 30 day notice, given her move in April 2019 to a new unit, which courts have held creates a new tenancy. But if the new statewide ‘just cause’ law – AB 1482 applies, as I assume it does, unless the unit was built within the last 15 years or is otherwise exempt – her tenancy may not be terminate without one of the ‘just cause’ grounds, and selling the property is not one such ground.

However, if the rental is a single family home, then it can be exempt from the state law, but requires that the tenant have been given notice as follow (also discussed above in Answer 3):

“This property is not subject to the rent limits imposed by Section 1947.12 of the Civil Code and is not subject to the just cause requirements of Section 1946.2 of the Civil Code. This property meets the requirements of Sections 1947.12 (c)(5) and 1946.2 (e)(7) of the Civil Code and the owner is not any of the following: (1) a real estate investment trust, as defined by Section 856 of the Internal Revenue Code; (2) a corporation; or (3) a limited liability company in which at least one member is a corporation.”

 

Question 8: I heard the federal law on comfort animals has been updated recently. Do you have any information on that?

Answer 8: In late January, the U.S. Department of Housing and Urban Development (HUD) announced the publication of guidance clarifying how housing providers can comply with the Fair Housing Act when assessing a person’s request to have an animal in housing to provide assistance because of a disability.   

The Fair Housing Act prohibits discrimination in housing against individuals who have disabilities that affect a major life activity. The Act requires housing providers to permit a change or exception to a rule, policy, practice, or service that may be necessary to provide people with disabilities that affect a major life activity an equal opportunity to use and enjoy their home. In most circumstances, a refusal to make such a change or exception, known as a reasonable accommodation, is unlawful. A common reasonable accommodation is an exception to a no pet policy. A person with a disability that affects a major life activity may require the assistance of an animal that does work, performs tasks, or provides therapeutic emotional support because of the disability. Housing providers may confirm, if it is not apparent, whether the requested accommodation is needed because of a disability that affects a major life activity and is a reasonable request.  

This new Assistance Animal Notice will help housing providers in this process by offering a step-by-step set of best practices for complying with the Act when assessing accommodation requests involving animals and information that a person may need to provide about his or her disability-related need for the requested accommodation, including supporting information from a health care professional.  A copy of the Notice may be found at https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf.

 

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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