Legal Corner Q & A
By Various Authors
Q. A month after giving my tenant a 30-Day Rent Increase Notice, she sent the rent check in for the old amount, marked “payment in full.” Accompanying the check was a short note which “suggested” that we keep the rent unchanged for another year, and invited me to “signify” this agreement by cashing the check. I deposited the check and then mailed the tenant a demand letter for the remaining portion of the rent. The tenant replied that, by cashing the check, we had an “Accord and Satisfaction” to not raise the rent until the next year. What should I do?
A. You should have returned the check to the tenant with a 3-Day Notice to Pay Rent or Quit. Generally, landlords should not accept partial payment of rent. However, since you did, the issue becomes whether or not your acceptance of the prior base rent amount, coupled with the tenant’s representation that acceptance constitutes an agreement to maintain the prior base rent for another 12 months, is in fact binding. I believe that it is not, and that you should pursue, by way of an eviction notice if necessary, the amount of the unpaid rent.
Under Civil Code section 827, a landlord may change the terms of a periodic tenancy (e.g., increasing the rent) by giving notice in writing of the change to the tenant, to take effect at the end of the period; for a month-to-month tenancy, at the end of 30 days. The San Francisco rent ordinance allows a landlord to increase a tenant’s rent by the annual allowable increase on a yearly basis.
The tenant argues that an “accord and satisfaction” was
created in this instance because the landlord cashed the rent check
for the previous base rent amount. “Accord and satisfaction”
is an old legal term that describes the process of discharging a
claim whereby the parties agree to give and accept something in
settlement of the claim and perform the “new” agreement.
In other words, my claim against you is forgiven in consideration
of you and I entering into a new contract.
Thus, the tenant’s argument is misplaced. You did not forgive
the ability to impose a valid rent increase simply by cashing partial
rent. Moreover, the tenant’s attempt to “trick” you
into a lease modification does not create some type of new contract.
Stated succinctly, there must be a meeting of the minds before the
tenant could take such a position. Thus, pursue to the back rent,
and to avoid issues like this in the future, never accept partial
payment of rent.
— >David Wasserman
Q. What are the specific guidelines that determine if a tenant is considered disabled? Do they have to be on SSI or can they just present a letter from their doctor and be declared disabled?
A. S.F. Admin. Code §37.9(I) protects a tenant from an owner move-in eviction under certain circumstances when the tenant is “disabled” within the meaning of Section 37.9(I)(1)(B)(I) and has been residing in the unit for ten years ormore.S.F.Admin.Code §37.9(I)(1)(B)(I) defines a “disabled” tenant as: “a person who is disabled or blind within the meaning of the federal SupplementalSecurity Income/California State Supplemental Program (SSI/SSP), and who is determined by SSI/SSP to qualify for that program or who satisfies such requirements through any other method of determination as approved by the Rent Board.”
The Rent Board has decided to allow the fact finder (judge or jury) to make the determination if a tenant meets the requirements of SSI/SSP. See Rent Board Rules, Sec. 12.14(d).
The rent ordinance is quite clear that to be afforded protected status, the tenant must not only meet the definition of disability contained in the SSI/SSP program, but must also qualify for benefits under SSI/SSP. Moreover, the tenant has the burden of proof to show protected status. S.F. Admin. Code §37.9(I)(4).
The following criteria must be satisfied for an
individual to considered disabled within the meaning of
SSI/SSP:
<(1) The tenant is unable to engage
in any substantial gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result in
death or which can be expected to last for a continuous period of
not less than twelve months.
(2) The tenant is disabled only if
his physical or mental impairment or impairments are of such severity
that he cannot engage in any substantial gainful work.
(3) A physical or mental impairment
is an impairment that results from anatomical, physiological, or
psychological abnormalities which are demonstrable by medically
acceptable clinical and laboratory diagnostic techniques.
Lastly, an individual does not qualify for disability benefits under SSI/SSP if that individual’s income exceeds $1,752 for the calendar year, or that individual’s resources exceed $2,000.
Being on SSI/SSP means that a person is disabled and cannot be evicted.
However, it is unlikely that a letter from a doctor will be sufficient
to prove a tenant is disabled or qualified for the SSI/SSP programs.
Only non-functioning and destitute individuals qualify for SSI/SSP.
A doctor would need to have the tenant undergo substantial laboratory
testing and would need to know the tenant’s income and assets
before rendering an opinion on eligibility for SSI/SSP.
— Clifford E. Fried
Q. A couple of years ago I purchased a two-unit building and moved into one of the units. Recently, my wife became pregnant and we began thinking about the possibility of joining the two units together to create one. We have a month-to-month agreement with the tenants upstairs. What San Francisco planning and rent control laws are applicable to this issue?
A. As families grow and needs change, many owners need more space. Ordinarily, one would expect that an owner-occupier in a two- or three-unit building would have the right to use their entire property for their home. Unfortunately, the City imposes obstacles.
First, in order to evict a tenant from the second unit, the owner must have just cause under the rent control ordinance. While there is a provision for eviction for owner occupancy, the San Francisco court has interpreted the rent control laws to prohibit an owner from pursuing an owner occupancy eviction for the purpose of occupying more than one unit.
One way for the owner to obtain control over the entire property is through the use of the rights granted by state law under the Ellis Act. The exercise of those rights requires that all rental units in the building be withdrawn from the market, and, it imposes strict regulations with regard to the ability of the owner to re-rent the units at any later date. Even if a multi-unit owner succeeds in having a vacant building to live in, the City attempts to deter owners from using multiple units for owner occupancy.
For years, it was the policy of the City Planning Department to allow owners to merge an additional unit with their owner-occupied unit in order to house an expanding family. As of last month, due to beingpressuredfromtenant organizations, the Planning Commission retracted this policy and now requires all unit merger applications to go through the “discretionary review” process. As a practical matter, it is clear that the Planning Commission has every intention of denying virtually all unit merger requests.
Under these circumstances, it appears that the only alternative an owner has is to create a household which is actually comprised of more than one “legal” unit. In many two-unit buildings this poses no major obstacle, but floor plans can be somewhat daunting.
So far, the only attempt by the City to directly interfere with owner occupancy—Planning Code Section 209.10, requiring a conditional use permit to owner occupy multi unit property—was thrown out by the court. While we expect the City to again attempt to stop owners from living in their own property, we are hopeful that the courts will reject any such attempt.
For now, many owners are living in their two- and three-unit buildings,
without formal unit merger, as if they were single family homes.
— Andrew Wiegel
Clifford E. Fried and Andrew Wiegel are with Wiegel & Fried, LLP, 552-8230. David Wasserman is with Wasserman & Taxman, 567-8230. The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine.