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Legal Q & A – by Richard Beckman, Attorney

Posted on 01. Jan, 2014 by in all, Magazine Articles

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Question 1: In my rental lease addendum, I ask for house inspections of the premise to be up to four times a year. One applicant told me that was illegal, and that only one inspection per year is permitted by law. I know some property managers ask for semi-annual inspection in their leases. What is the legal limit, if there is one?
Answer 1: There is no ‘right to inspect’ provided in California law, and whether the lease can require the tenant to allow such entry is uncertain, but the likely answer is even if the lease so provides, it would be an unenforceable provision (since Civil Code Section 1954 governs the lessor’s right of entry to the residential rental unit). There is a right to inspect the smoke and carbon monoxide alarms, though that right does not indicate how often it may be used, though annually would be a minimum reasonable schedule. Health and Safety Code Section 13113.7 provides: “An owner or the owner’s agent may enter any dwelling unit for the purpose of installing, repairing, testing, and maintaining single station smoke detectors required by this section. Except in cases of emergency, the owner or owner’s agent shall give the tenants of each such unit, room, or suite reasonable notice in writing of the intention to enter and shall enter only during normal business hours. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary.”  As provided in CC Section 1954, an owner can enter a rented unit only:

  • In case of emergency;
  • To make necessary or agreed  repairs, decorations, alterations or improvements, supply necessary or  agreed services, or exhibit the dwelling unit to prospective or actual      purchasers, mortgagees, tenants, workers, or contractors or to make an nspection pursuant to subdivision (f) of Section 1950.5;
  • When the tenant has abandoned or surrendered the premises, or:
  • Pursuant to court order.

No notice of entry is required to respond to an emergency, if the tenant is present and consents to the entry at the time of entry or after the tenant has abandoned or surrendered the unit.

Section 1954 also provides that the tenant and the landlord may agree orally to an entry to make agreed repairs or supply agreed services, but that the agreement shall include the date and approximate time of the entry, and the entry shall be within one week of the agreement. In that case, the landlord is not required to provide the tenant a written notice.

In short, the right of a landlord to compel the tenant to allow the landlord entry to the unit is statutorily expressed, and so seeking to insert a right of entry or inspection into a rental agreement would likely be enforceable. Worse, a landlord who acted on such a lease provision could be liable for wrongful entry claims if the tenant were to learn that such inspections were legally improper. 

Question 2: What is the latest on “service animals”? My tenant printed some document from an online “service animal registry” and is using that to file a fair housing complaint against us. What are the criteria for an animal to pass as a service animal or support animal insofar as fair housing is concerned?
Answer 2: The issue of service animals and comfort animals is complicated and involves federal, state and sometimes local law. Federally, the Fair Housing Amendments Act and Section 504 of the Rehabilitation Act of 1973 require reasonable accommodations be given to disabled occupants in order to provide such occupants an equal opportunity to use and enjoy one’s home. These federal laws are enforced by the Housing and Urban Development Department (HUD), as well as by private or public service law firms. InCalifornia there are similar protections provided by the Fair Employment and Housing Act (FEHA) which is enforced by the Department of Fair Employment and Housing (DFEH).

HUD’s current guidelines for subsidized multifamily housing blend the separate concepts of Service Animals and Emotional Service Animals (ESAs) under the category of “assistance animals”. Assistance animals are animals that work, provide assistance, or perform tasks for the benefit of a person with a disability, or animals that provide emotional support that alleviates one or more identified symptoms or effects of a person’s disability. Assistance animals—often referred to as “service animals,”  “assistive animals,” “support animals,” or “therapy animals” – perform many disability related functions.  Some, but not all, animals that assist persons with disabilities are professionally trained. Other assistance animals are trained by the owners themselves and, in some cases, no special training is required. The question is whether or not the animal performs the assistance or provides the benefit needed as a reasonable accommodation by the person with the disability. Although these guidelines are specifically for multiunit subsidized housing, HUD has applied the same rules to private landlords.

If the animal is  trained to assist with a specific  task needed by a disabled person (for example, a guide dog for a blind person), or is a “service dog” which means “any dog individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair, or fetching dropped items” (defined in the state law known as the Unruh Act), then the tenant has an almost absolute right to be accommodated by having the lessor allow the dog to live with the tenant. There are restrictions based on the behavior of the animal, and other similar criteria, but basically the service dog will need to be accommodated by the lessor. It is the tenant or applicant with a ‘companion’ or ‘comfort’ animal (whether it be a dog, cat or other creature) which requires the kind of case-by-case analysis that your situation likely requires, and which is a more nuanced evaluation that can result in differing conclusions by the tenant, the lessor and the court or agency tasked with making the final decision.

Question 3: If I buy a house as a short sale, with occupants in the house, can I force them to move or do I have to go through the eviction process?
Answer 3: If the house you purchased came with occupants who had a legal right to occupy from the prior owner, you will need to either get their cooperation to move out, or initiate the eviction process by service of a proper notice to vacate, the type of which will depend on the nature of the occupancy. If the occupants are former owners, then you would have a three day notice situation. If the occupants are tenants, then you have to provide 30 day’s notice if they have been there less than one year, or 60 days if more than one year. If the occupants are tenants under a legitimate lease, they would likely be entitled to stay until the lease expires. Please note that if the rental unit is located in a ‘rent controlled’ or ‘just cause’ jurisdiction such as Oakland or San Francisco, the tenants may have a right to remain as tenants as long as they pay the rent on time and do not otherwise violate a legal duty under the lease or applicable law, subject to the owner’s right to occupy the house or remove it from the rental market. In such situations, you would need to consult with someone knowledgeable in that area of the law before taking action to terminate the tenancy.

 

Question 4: If I have multiple tenants apply for one unit, can I ask for an increase in the rent? I ended up with 11 parties applying in one day. Apparently, the asking rent was too low.
One very qualified prospect offered over the asking price.
Answer 4: That is an increasingly common question. Without seeing your listing, I believe the answer generally is that there is no obligation on the lessor’s part to rent to anyone at the rent price listed in the advertisement, as long as the ultimate selection of the tenant is not based on discriminatory grounds. In other words, if an applicant simply offers more money to rent the unit, I know of no legal impediment to your accepting that offer. If you preferred one ‘type’ of tenant over another (based on race, creed, color for example) and offered to rent to that person for more than the listed price, without extending that same offer to all applicants, that might give some frustrated applicant a reason to claim discrimination. But if the applicant makes the offer, I don’t know of any law that would prevent you from accepting it, assuming you have not already made some agreement with another applicant to rent to that person.

Question 5:  I have an apartment I rent to three female roommates. One of the girls claimed she was attacked by another’s boyfriend when he was drunk. Apparently, the boy in question is continuing to come over and spend the night from time to time. She wrote me about the incident and asked me to resolve the problem with her roommates. She wrote that she feels unsafe and is afraid that she will be attacked again. She is afraid to come into the common areas of the apartment when the boy is there, which apparently is frequently. I wrote her this is a roommate issue, not a landlord issue and that she should resolve it. Do I have any duty to “protect” her and intervene in this situation?
Answer 5: As the father of a college daughter in a dorm situation, my sympathy is with the complaining tenant, so my response might be slightly biased that way.  But you do have a duty as a landlord to take reasonable efforts to protect your tenants from known dangers over which you have some control. This usually takes the form of a neighbor tenant who is a threat to another tenant in another unit, which may allow the lessor to terminate the ‘problem’ tenant’s tenancy for nuisance of breach of lease, but I don’t see the distinction presented her (where the threat is from within the tenant’s unit rather than across the hall), as a significant one in terms of changing your legal duty.

However, without independent evidence, you would be taking one tenant’s word against another, so you would likely need to investigate the facts. If it were my building, I might suggest that the complaining tenant arrange to meet with me and the other two roommates and try to establish the truth of the complaining girl’s story, to see if the other girls would corroborate her story. If so, it could be possible to get the girl who dates the ‘villain’ to stipulate that he may no longer visit the apartment, with the alternative being legal action against the ‘girlfriend’ for allowing a nuisance to exist at the premises. If there is no corroboration, the victim could file a request for a restraining order against the villain. If that order is issued, and the villain violates it, he can be arrested, and, if the roommate allowed him in, she should be subject to a nuisance eviction notice which you would issue and if necessary follow up on.  If the court declines to issue the restraining order, and you can not otherwise corroborate her story sufficiently to take action against the villain’s girlfriend, the victim may just want to find new housing and leave the toxic environment.

Question 6: My business partner and I bought a triplex in Oakland three months ago, with two rental units on the second floor, and one rental unit, parking garages and backyard on the ground floor. The backyard is right outside the ground floor unit. There are fence gates to stop people from outside the building from going into the back yard. There is also a latch on each gate so that people could lock it from the inside. When the gates are locked, only the downstairs rental unit can access the backyard as their back door leads into it. Their living room window also faces it. They claim they are entitled to exclusive use of it.
The tenants of the upper two units dispute that arrangement. They claim that the backyard is common space and they should be able to access it.
It is difficult for us to determine one way or another because the previous owner owned the property only for about four months, then sold it to us. The current tenant of the ground floor unit is new.     We found no mention of using the backyard in the upper tenants’ leases. Based on the above evidence, we intuitively think the backyard ‘belongs’ to the ground floor unit.
For now, our tactic is to tell the disputing tenants that it doesn’t make sense to be coming and going in front of other’s living room window, as it would cause hard feeling between neighbors, and we can’t open that space for common use. But they accuse us of closing the space, which was originally open to all tenants.
Is ignoring the tenants’ complaint sufficient? Is there anything we could/should do to protect ourselves?
Answer 6: In response to your complaining tenants, you have done what you can to explain to them why they are not being provided access to the yard. Since you are not sure what their original arrangement was with the prior owners, it is possible they were previously allowed access to the yard, which would probably be considered a housing service which was included in their rent. If that service is withdrawn, they could petition the rent board for a rent reduction based on the value of the service, which is difficult to estimate. The prior access would also be a fact issue for the tenants to prove.

Other than trying to explain to the upstairs tenants, as you have done, I can’t think of anything else you could do other than trying to fashion some compromise arrangement in which the upstairs tenants were allowed to access a portion of the yard, in such a way as not to infringe on the privacy of the downstairs tenant.

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 19 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.