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Legal Q & A – by Richard Beckman, Attorney

Posted on 01. Sep, 2016 by in all, Magazine Articles

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Question 1: We discovered that our tenant has sublet a room in the apartment. This is a breach of her contract. We are trying to figure out how to deal with this situation so we will not be legally bound to a contract with this subtenant, if the current tenant moves out. We were thinking of doing one of the following scenarios, but we want to confirm these will accomplish our goal or allow us to increase the rent, if we can’t remove him from the occupancy.
1. Ask the subtenant to fill out a Section 6.14 – Notice to Subsequent Occupant. Also get his contact information and run a background check.
2. Ignore the situation and make sure we don’t have any contact with him in regards to anything having to do with the property.
Answer 1: First, your inquiry states your San Mateo apartment is subject to rent control, but at present San Mateo has no rent control law. However, as to your question, if the current tenant is in violation of the subletting clause in your lease, you can serve a three day notice to cure or quit, or if you want to take a more extreme position, a three day notice to quit. If you don’t object to the subtenant other than as a possible future tenant, then you can simply work that out with both of them, by having the subtenant submit an application for your approval, and an agreement to be bound by the terms of the lease, which will include the obligation to move at the expiration of the lease term. You can also take no action, and if the subtenant remains after the lease expires, the master tenant is liable for the holdover subtenant’s occupancy, and both can be served an unlawful detainer complaint (the eviction lawsuit) on the day after the master tenant moves out if she moves out after having provided written notice of her intent to do (which must be accepted by you in writing). If the master tenant is on a month to month agreement, and vacates without having provided advance notice of intent to do so, your remedy would be to either negotiate a new agreement with any subtenant remaining in possession, or serving a three day notice to quit for breach of the subletting clause.

If the property is in San Francisco, and covered by the rent ordinance there, the situation is much more complicated, and you will likely need to consult with an attorney to preserve your right to raise the rent when your ‘last original tenant’ vacates and leaves a subtenant in possession. You also have to be careful not to create a new tenancy with the subtenant, which can happen if you accept rent from the subtenant. 

Question 2: I rent a 500 sf apartment within my own home in Mill Valley near Mt. Tamalpais. It’s a beautiful, clean apartment with fairly new fixtures, nice cabinets, new flooring and carpet. Before I rented it out, I found evidence of rat or mouse underneath the house/foundation, so hired an exterminator, who cleaned droppings, sealed all holes around foundation and house, and set traps. The new tenant (who hikes) moved in, and claimed he was getting bites and moves to stay with his brother temporarily. Pest control inspects, finds nothing, tells tenant to remove hiking clothes outside, and treats (fogs) the apartment. Tenant moves in again, and again claims he’s being bit (tiny bites, like a mosquito). Back to his brother. Trap catches a rat, which is removed, and area re-cleaned. Tenant insists that he was bit by rat mites. I offer to re-fog the apartment and under the house. But he wants assurances a rat will never get under house again. No guarantees in life – we agree to terminate the lease. Now tenant wants all of his rent back, claiming breach of habitability. Lease lasted three months, and I already credited back 1/2 month. Is this a breach of habitability?
Answer 2: Pursuant to Civil Code section 1941.1, you have a duty to maintain the unit and grounds in condition that renders them ‘tenantable’.  This duty includes insuring that the “Building, grounds, and appurtenances at the time of the commencement of the lease or rental agreement, and all areas under control of the landlord, kept in every part clean, sanitary, and free from all accumulations of debris, filth, rubbish, garbage, rodents, and vermin.” Whether that duty was met or breached based on your facts is unclear, though it appears you took what a court would likely find reasonable efforts to comply with the stated requirement. In such cases, a compromise by both sides of their ‘rights’ is generally the prudent course, as the failure to compromise will likely require you both to present your positions to a small claims judge, who will rule for one or the other, or, on your case’s facts, possibly split the difference by finding a habitability issue, but not one that warrants a full rent reduction, or even as much as half.

A judge could also find the tenant’s complaints were caused by the tenant’s own activities, or, more likely, that the tenant did not submit sufficient evidence to support his burden of proving you breached the warranty of habitability. Small claims court, like courts generally (though perhaps more so  because the ‘rules of evidence’ are less stringent than ‘regular’ court) can be difficult places to predict the outcome, which is why I believe it is generally better for both sides to recognize some merit in the other side’s position, and strive to reach a compromise that avoids court. But compromises by their nature often mean each side gets less than they think they should have, and sometimes no compromise is possible where  opposing positions are too strongly held (‘I did nothing wrong and will pay nothing..’ ‘This was all your fault and you owe me everything). In those cases, a courtroom may be the only way to resolve the dispute.                       

Question 3:    My tenant turned in a 30 Day Notice to Move, and the move out date was supposed to be the 15th of July, when they asked for an extension until the end of July. I agreed (verbally) and got full rent payment for July. Now they want another extension, which I don’t want to do, as I want them to move. If they don’t move and I have to evict them, do I use their 30 Day notice as the basis for the eviction? Or should I give them a 3 Day notice to move/abide by the 30 Day notice previously received or be evicted?
Answer 3: If the tenant provides written notice of intent to terminate the tenancy (as it appears your tenant did), and the landlord accepts that notice in writing (which is not clear from your facts),  the tenant is subject to an unlawful detainer action (eviction lawsuit) on the day after the notice period expires if the tenant remains in possession. However, your agreement to extend the termination date complicates that otherwise straightforward legal scenario, and it is not certain from your brief description whether an unlawful detainer would be valid after the extension period expires. There is no ‘3 day notice’ available in your situation, so you may have to choose between seeking to enforce the extended termination date (i.e. file the unlawful detainer at the beginning of August if the tenants remain in possession) or serve a 30 day notice of termination of your own (which would effectively give them the extension they seek, but would eliminate any confusion about the termination date). However, if the tenants have been there over one year, your termination notice would need to be a 60 day notice. Given your position, you might contact the tenants and negotiate a certain move out date that works for both sides, to avoid the expense and complication of bringing an unlawful detainer case. If the tenants won’t cooperate, in writing, then you will need to choose between filing the UD action August 1, or serving the formal termination notice so you can file that action when the notice expires. Of course, the tenants are required to pay rent during any period they are in occupancy, and their failure to do so is a basis for a 3 Day Notice to Pay or Quit.
 

Question 4: In my Richmond rental agreement with my tenant we pay for the garbage bill. Now four years later we want to have the tenant pay the garbage bill. Can I change this by sending a letter, or should I increase rent instead?
Answer 4: If your lease is a month to month rental agreement, and not subject to a local rent control ordinance, as is currently the case in Richmond, you may change the terms of the agreement, including making the tenant responsible for the garbage collection cost, by serving a proper Notice of Change of Terms of Tenancy. However, as that would require the tenant to take over the billing responsibility, it might be easier to serve a rent increase notice to cover the cost of that service. If you are in a term lease (for example halfway through a one year rental agreement), you have to wait until the lease expires to make any changes.
 

Question 5: How much of a deposit can I charge? The rent is $2,500.00 per month.
Answer 5: The limit is twice the rent for an unfurnished apartment, and three times for a furnished apartment.
 

Question 6: I am filling out the Security Deposit Refund form which will itemize my former tenant’s costs against their security deposit. Do I have any obligation to show or provide receipts for the costs that are being deducted from their security deposit, e.g., cleaning, replacement of damaged carpet, etc.?
Answer 6: The short answer is ‘yes, you do.’ The pertinent section from the Security Deposit statute – Civil Code 1950.5 – is copied below, and sets out in detail your obligations regarding accounting for the security  deposit (which must be done within 21 days after the tenant vacates). Note that the duties below do not apply if the deduction is under $125.00, or the tenant agrees, after notice to terminate has been served, to waive the provisions of the statute.
 

(2) Along with the itemized statement, the landlord shall also include copies of documents showing charges incurred and deducted by the landlord to repair or clean the premises, as follows:

(A) If the landlord or landlord’s employee did the work, the itemized statement shall reasonably describe the work performed. The itemized statement shall include the time spent and the reasonable hourly rate charged.

(B) If the landlord or landlord’s employee did not do the work, the landlord shall provide the tenant a copy of the bill, invoice, or receipt supplied by the person or entity performing the work. The itemized statement shall provide the tenant with the name, address, and telephone number of the person or entity, if the bill, invoice, or receipt does not include that information.

(C) If a deduction is made for materials or supplies, the landlord shall provide a copy of the bill, invoice, or receipt. If a particular material or supply item is purchased by the landlord on an ongoing basis, the landlord may document the cost of the item by providing a copy of a bill, invoice, receipt, vendor price list, or other vendor document that reasonably documents the cost of the item used in the repair or cleaning of the unit.

(3) If a repair to be done by the landlord or the landlord’s employee cannot reasonably be completed within 21 calendar days after the tenant has vacated the premises, or if the documents from a person or entity providing services, materials, or supplies are not in the landlord’s possession within 21 calendar days after the tenant has vacated the premises, the landlord may deduct the amount of a good faith estimate of the charges that will be incurred and provide that estimate with the itemized statement. If the reason for the estimate is because the documents from a person or entity providing services, materials, or supplies are not in the landlord’s possession, the itemized statement shall include the name, address, and telephone number of the person or entity. Within 14 calendar days of completing the repair or receiving the documentation, the landlord shall complete the requirements in paragraphs (1) and (2) in the manner specified. 

Question 7: If I use a licensed pest control company to do spraying for cockroaches, do I need to give any specific form or notice other than the 24 hour notice to enter?
Answer 7: Yes, you have some additional notifications that are required. First, Civil Code Section 1940.8 states:   A landlord of a residential dwelling unit shall provide each new tenant that occupies the unit with a copy of the notice provided by a registered structural pest control company pursuant to Section 8538 of the Business and Professions Code, if a contract for

periodic pest control service has been executed. (following is a link to the Section 8538 statute http://www.leginfo.ca.gov/cgi-bin/displaycode?section=bpc&group=08001-09000&file=8538 

If you do the pesticide work, Civil Code Section 1940.8.5. outlines your duties to provide tenants with notice, and you should read it if you plan to do the work – it’s rather detailed. 

Question 8: In San Francisco, our 2 flats are right next to each other. I have back steps going up to roof only for repair and emergency exit purposes in case my tenants can not go out their front doors or back doors and go downstairs to a service porch. Am I required to provide roof access at all, or the front and back doors that my tenants can exit the building to the front or back, sufficient? The SF views are very tempting for new SF residents.
Answer 8: If there is no emergency exit issue involved (the answer to which is likely available from your fire department), there is no obligation, even in San Francisco, to provide roof access for the tenants’ viewing enjoyment. If such access had been granted, or tacitly allowed, revoking it presents a challenge, but would likely be permitted, subject  to a rent reduction reflecting the value to the tenant, unless the revocation was mandated by a law, such as a local ordinance prohibiting roof use for non-emergency reasons (unless the roof is permitted for recreational use). I do not know if that provision exists, but the local department of building inspection could probably point you in the right direction.
 

Question 9: Where I can find the copy of Protect Your Family from Lead in Your Home?
Answer 9:The EPA website has that pamphlet, which can be downloaded from their website at:
https://www.epa.gov/lead/protect-your-family-lead-your-home-1 

Editor’s Note:  AOA members can download forms for free at www.aoausa.com  

ALERTS AND UPDATES:

The Oakland Moratorium on Certain Rent Increases that was passed in early April and effective April 5 to July 4, 2016 expired without being renewed and so is no longer in effect. However, you might see that provision in some form or another on the November ballot. 

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