Legal Corner Q & A
By Various Authors
Q. We are owner-occupiers of a two-unit building, and are about to rent our vacant unit. We would like to share our back yard with our new tenant(s), but we are concerned about losing control of the space. Is there some middle ground between carte blanche and absolute prohibition?A. Unfortunately for your tenant, this is one of many circumstances where the Rent Control Ordinance and the Rent Board penalize a well-intentioned landlord for showing consideration to tenants. If your rental agreement states that the tenant can use the backyard, the Rent Board considers it a housing service. Later, if the tenant abuses the use of the backyard and you seek to end or restrict their use, the tenant can file a petition with the Rent Board claiming a decrease in housing services. The Rent Board has the right to authorize a rent reduction in this case as well as other similar courtesies you might show a tenant.
Your rental agreement should specify that the backyard and its use are not available to the tenant. It also should state clearly that the amount of rent charged does not include use of the backyard. Your safest course of action due to the Rent Ordinance and its application by the Board is to refuse a tenant’s use of a backyard, garage, or storage space outside of their unit.
If you intend for the tenant to use the backyard, the rental agreement should still read the same way. In a separate addendum created after the tenant has made the first rental payment, you should clarify that the tenant has a revocable license to use the backyard. What this means is that their use is subordinate to your use and requires your consent in each instance. The addendum’s list of limitations should indicate use of the backyard is not a housing service, specify the rent charged does not include the backyard, and delineate the right to revoke the license at any time for any reason without a subsequent reduction in rent. A knowledgeable lawyer should review both the addendum and the rental agreement.
The use of such an addendum is not necessarily your best course of action because it will be subject to interpretation at the whim of the Rent Board. They consistently have enacted regulations that purport to set aside terms of agreements between a landlord and tenant in favor of the tenant. As a result, if you allow your tenant to use the backyard, even with such an addendum, you will run the risk of losing control of the backyard.
—Dennis C. Hyde
Q. What recourse do I have if a tenant paints or modifies the apartment without my written permission?
A. Apartment modifications depend on the conditions set forth in the
rental agreement. Usually, it states that prior written permission
provided by the landlord is required for any alterations specifically
described as painting, redecorating, floor refinishing, wallpaper
work, etc. With this in place, you will have a potential claim for
damages if a tenant attempts any unapproved alterations. When the
tenant vacates the unit, there is an obligation under CC 1950.5
to leave it in the original condition except for reasonable wear
and tear that is covered by the security deposit. You also want
to make sure that you do not waive your rights to enforcement of
that lease provision. An eviction also may be possible based upon
a three-day notice for breach of covenant (Section 37.9(a)(2)),
with the tenant’s right to cure the violation, but in San Francisco
this can be risky, particularly if there is a bad history with this
tenant or another motive to evict. A San Francisco jury also may conclude that
the breach is not serious enough to justify an eviction.
— Lawrence M. Scancarelli
Q. A new roommate in one of our apartments hand wrote his name on the rent check. If I accept this check, am I creating a new tenancy?
A. The answer depends both on the particular circumstances, and the person making the ultimate determination, namely the Rent Board administrative law judge, court judge, or jury. The issue is simple, but the factual determination necessary to resolve it often is quite difficult. What is the intent of those giving you the check and what is yours in accepting it? A month-to-month tenancy between a property owner and a tenant may be created simply by the payment and acceptance of rent. If the new roommate's name is written on the check, both roommates now could argue that in accepting the rent check you agreed to the new roommate as an additional tenant. Court cases involving San Francisco's Rent Ordinance and other issues have viewed this type of action as evidence of the landlord's consent to the roommate as a tenant with all the rights due a tenant.
The Costa Hawkins Rental Housing Act provides that the acceptance of rent alone does not operate as a waiver of your right to increase the rent to market rate; or to enforce a prohibition against unauthorized assignment and subletting unless the landlord has received written notice from the original tenant, and thereafter accepted rent. A similar provision is contained in Section 6.14 of the Rules and Regulations, although it has a further provision that permits the landlord to raise the rent within 90 days of such acceptance. I had one case where the Rent Board administrative law judge ruled that the person's name on the check was itself written notice. (Luckily, on appeal, this ruling was reversed.) If all this seems confusing and unclear, it is.
The reality is that there is tremendous significance attached to a landlord's acceptance of rent. Whether this perception is accurate or misguided, the acceptance of rent creates a tenancy, under any circumstances. My advice is to return the check to the original tenant with a cover letter explaining that the roommate is not your tenant (even if you had knowledge there was a roommate) and you do not intend to accept any check with the roommate's name on it. If the original tenant does not send you a new and different check without the roommate's name, but instead draws a line in the sand, I would suggest that you consult competent landlord/tenant legal counsel as to the next step to take.
— Saul M. Ferster
Saul M. Ferster can be reched at 415-863-2678. Lawrence M. Scancarelli is with the Law Offices of Lawrence M. Scancarelli, 415-398-1644. Dennis C. Hyde can be reched at 415-552-8230. 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.