Legal Corner Q & A
By Various Authors
Q. What is the new law regarding disclosures in Three-Day Notices and leases?
A. SB 985 became law on January 1, 2002. This law requires that owners or their agents provide tenants with (1) the telephone number and address of the location where the tenant may make rental payments and (2) the information about how rent must be paid (check, certified funds, etc.). In addition, tenants must be provided with information regarding the usual hours the owner or the property manager is available to collect the rent. All lease agreements and Three-Day Notices to Pay Rent or Quit must have this information.
The new and available PPMA lease contains this new disclosure requirement. The SFAA also updated the Three-Day Notices to comply with the new law. Basically, your notice to pay rent or quit should say something like this: “Rent must be paid by way of check or certified funds, and can be delivered to Owner’s Agent at Unit 1, Bush Street, tel.: 415-555-5555, between the hours of 8:00 a.m. and 5:00 p.m. on any business day.” Failure to include these new disclosures in your Three-Day Notices could void the eviction action, especially in San Francisco where tenant attorneys closely scrutinize these notices.
If
you do not allow rental payments to be made in person (for example,
you list a P.O. Box), then it is conclusively presumed that upon
the mailing of rent, it is received by the owner on the post-marked
date. You may also require the tenant to electronically deposit
their rent, provided that either (1) you disclose the number of
the account in a financial institution where rent payments may be
deposited along with the name and street address of the institution,
provided that the bank is located within five miles of the rental
property, or (2) you provide information to the tenant that would
enable the tenant to establish an electronic funds transfer procedure
for paying the rent.
The
tenant also has a right to get a copy of the lease agreement once
a year. Upon request, the landlord has 15 days to comply. The old
law simply required that the landlord, at the time of lease signing,
provide the tenant with the name and usual street address of the
owner or the owner’s authorized agent for the purpose of receiving
notices and demands from the tenant. No such disclosures were previously
required for Three-Day Notices. The new law simply adds to and enhances
the necessary disclosures.
– David Wasserman
Q. What is the best way to handle frivolous race discrimination inquiries or lawsuits?
A. False accusations of discrimination made against a property owner are always unpleasant. Unfortunately, this frequent occurrence is often due to a tenant or would-be tenant who is disgruntled over some other matter. From my experience, however, the easiest and most effective response is to cooperate fully and completely with the investigating agency. The agency could be a city one such as the Human Rights Commission or Department of Fair Employment and Housing or a federal agency such as Housing and Urban Development. Usually if the owner is cooperative, pleasant, friendly and helpful, the agency investigator will spend several months (they proceed at a very slow pace) pursuing the necessary investigative steps required by that particular agency. Ultimately the matter tends to go away. The agency personnel are obligated to follow their own protocols to determine whether or not the tenant complaint is well founded. At the end of their investigation, they may issue a rejection of the claim and a “right to sue” letter to the tenant. The letter indicates that if the tenant wishes to pursue this case further and sue, he/she must do so independently since the agency failed to find a violation and is terminating the investigation. This is where the matter most likely will end. Although there is no cost for the tenant to make the complaint and to request the investigating agency to go after the landlord, he/she would unlikely employ private counsel to sue the landlord after a finding in favor of the landlord by the investigating agency.
Therefore, should you find yourself in such a situation, I would
suggest you simply relax, do not become distraught or indignant
and cooperate with the investigating agency to the best of your
ability. Believe me, if no discrimination has occurred, the problem
will go away most of the time. In that rare circumstance requiring
you to defend against a tenant lawsuit, do what you should always
do when served with a lawsuit—tender the matter to your insurance
company for a defense. If they won’t take it (they should,
depending on the allegations in the lawsuit), be prepared to hire
a private attorney. You can defeat bogus claims, as long as you
don’t ignore them.
– Saul M. Ferster
Q. Is there a Rent Board rule that allows family members to move into their mother’s (i.e., landlord’s) rental unit?
A. The Rent Ordinance and the rules and regulations of the Rent Board only apply if the landlord decides she needs to terminate a residential tenancy in order to have family members move into the rental unit.
If the landlord owns and occupies the rental unit, then the Rent Ordinance has no bearing on her decision to move family members into her own unit. Laws that might come into play in this scenario regulate not who can move into a dwelling unit, but rather the number of persons who may lawfully reside in it. This is not a rent or eviction control issue.
On the other hand, if the landlord wishes to move family members into a unit that she owns but she does not occupy, the Rent Ordinance governs the extent to which she can move family members into that unit.
In addition to owner move-in (“OMI”) evictions, Rent Ordinance § 37.9(a)(8)(ii) provides that, under certain circumstances, a property owner has a just cause to evict a tenant for the purpose of moving “qualified relatives” into the unit. These evictions are known as qualified relative move-in (QRMI) evictions. The following are some but not all of the important rules pertaining to QRMI evictions. First, in order for the landlord to be entitled to even terminate a tenancy for QRMI, she must either already live in the building that contains the unit ear-marked for the relatives, or must be simultaneously seeking possession of a unit in the building, separate from the unit into which she desires to move her relatives. In addition, just like an OMI eviction, the landlord must own the minimum required percentage interest in the title, and she must seek possession from the tenants for her relatives by acting in good faith, without ulterior motive, and with honest intent.
Moreover, a landlord may not terminate a tenancy for QRMI for just any “relative.” Instead, Rent Ordinance § 37.9(a)(8)(ii) expressly limits the relatives on whose behalf the owner may do a QRMI eviction to the following: grandparents, grandchildren, parents, children, brothers or sisters, the landlord’s spouse or the spouses of such relations. If a landlord wishes to terminate a tenancy to move someone related in a different manner or degree (e.g., cousin) into a unit, that owner would not have just cause to evict and would create liability for attempting such an eviction.
A landlord may not do a QRMI eviction against a tenant protected
from OMI or QRMI evictions (i.e., elderly, disabled, or catastrophically
ill tenants with long-term tenancies), unless (1) the landlord already
lives in the building, (2) all other units in the building are occupied
by protected tenants and (3) the relative whom the landlord intends
to move into the unit (of a protected tenant) is 60 years of age
or older. (See Rent Ordinance § 37.9(i)(2).) This is the rare
and exclusive instance in which a protected tenant may be evicted
from a multi-unit building for OMI or QRMI.
– Curtis Dowling
The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. David Wasserman is with Wasserman & Taxman, 567-9600. Saul M. Ferster can be reached at 863-2678. Curtis F. Dowling can be reached at 397-2700. © Copyright 2002.