Legal Corner Q & A
By Various Authors
Q. Can a tenant give a 30-Day Notice to Vacate in the middle of the month if their rent is due on the first day of the month?
A. Yes. Assuming that you have a month-to-month tenancy, the only requirement is that the tenant provides at least 30 days notice. I recognize that it may be preferable to have the unit available at the beginning of a month in order to avoid too much dead time until a new tenant moves in. Assuming, of course, that you are going to paint, clean, and otherwise spiff up the apartment, some dead time will be inevitable. When notice is given to terminate mid-month, the tenant’s liability for rent should be calculated on a pro rata basis through, and including, the date of termination. If the tenant is on a fixed lease, of course, the tenant cannot short circuit the terms of the lease by giving 30 days notice to take effect before the expiration of the lease. After the end of the term, however, the same rules would apply.
— Saul M. Ferster
Q.
I have heard that apartment owners are responsible and/or liable for the illegal actions of the previous owners of a building? Is this true?
A. I did hear that the guy who bought Al Capone’s duplex in San Francisco got 20 years in Alcatraz. Seriously, owners are not liable for the wrongdoing of their predecessors.
Civil Code Section 1466 provides that no purchaser of land is liable for a breach of a covenant that occurred before he acquired the property. In one recent case, a tenant claimed that a purchaser of an apartment building should be liable for breaches of the warranty of habitability that took place prior to the sale. A San Francisco Superior Court judge found there was no liability on the part of the purchaser. The tenant’s remedy was to sue the prior owner. This does not mean that a new owner has no obligation to correct existing problems. Any owner is responsible for maintaining rental property in a habitable condition and up to code.
There have been claims that the Rent Board does not acknowledge
Civil Code Section 1466. This has been particularly true with illegal
rent increases that predate the sale of the property. The application
of Section 1466 to illegal rent increases should mean that while
a rent increase is null and void, a new owner should not have to
pay money back to the tenant or suffer a rent reduction.
Clifford Fried
Q. Can a master tenant bring in a new roommate and charge him or her 80-90 percent of the base rent?
A.
Yes. A master tenant can charge the roommate, or roommates, 100%
of the base rent. The only prohibition against a sublease rental
charge is as follows: A tenant who subleases his or her rental
unit may charge no more rent upon initial occupancy of the subtenant
or subtenants than that rent which the tenant is currently paying to the landlord San
Francisco Rent Ordinance, section 37.3(c)].For units under the Rent
Ordinance, the master tenant can charge all of the rent onto his
or her subtenant or, in the aggregate, subtenants. A master tenant
could technically charge off all of the rent and then impose an
additional use fee for the privilege of sharing the master tenant's
furnishings. She/he just cannot profit from the lease by collecting
more in apartment rent than the total base rent that is paid to
the owner. What happens when the landlord discovers instances where
the master tenant is charging the subtenants base rent in excess
of the rent owed to the landlord? In several recent cases pertaining
to a split in authority among landlord-tenantpractitioners,several
attorneys have been successful in terminating the entire tenancy
on the ground that the tenant is using or permitting a rental unit
to be used for any illegal purpose [see Rent Ordinance, section
37.9(a)(4)]. This illegal useÓ argument has been successful with
some of the judges in town. Of no surprise is the obvious fact that
most subtenants will be reluctant to help the landlord terminate
the tenancy by turning in the offending master tenant for most tenants
do not want to wind up on the street. I have been involved in situations
in which the subtenants blatantly lie to protect the master tenant
so that everyone's housing remains intact. Hence, you may encounter
a proof problem when dealing with a suspected tenant who overcharges
the subtenants. If you suspect lease profiting, you should gather
some hard evidence before serving an eviction notice. As with all
legal situations in the scary world of San Francisco landlord-tenant
law, consult a qualified professional before taking action.
—David Wasserman
Saul M. Ferster can be reached at 863-2678. Clifford Fried is with Wiegel & Fried, 552-8230. David Wasserman is with Wasserman & Taxman, 567-9600. 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.