Legal Corner Q & A
by Various Authors
Q. We have a non-smoking building, and often we find applicants who smoke insist they will not smoke on the premises. After years of managing apartments in the city, I don't trust anyone. Can I reject their applications outright because they smoke or must I take them on their word?
A. As you probably know, anyone naive enough to believe a smoker who says he won’t smoke on the premises is a good candidate to be sold that bridge in Brooklyn. Smoking is addictive and when the need hits for a nicotine fix, the tenant is not going to parade out to the cold, wet sidewalk in his pj’s and flip-flops to satisfy the craving. You know what is going to happen right from the get-go, and if you even—for a moment—think otherwise, you’re deluding yourself.
Yes, thank goodness, you can discriminate against smokers. Not all discrimination is bad or prohibited by law. There are certain classes against which you may not discriminate, and they are protected by state, federal and local laws. These classes include the well-known categories of race, sex, color, religion, ancestry, national origin, disability, medical condition, ethnicity, sexual orientation, source of income and, in San Francisco, height and weight.These classes are not necessarily all inclusive. The courts have held that invidious discrimination based on certain personal characteristics or traits is illegal, and when urged to outlaw a new form of discrimination, will consider the landlord’s legitimate business interests as well as the societal consequences of allowing the new discrimination claim. Nevertheless, in the 1996 case of King v. Hofer that involved a nonsmoker who was refused service in a bar, the court held that nonsmokers are not a protected class. Much, but not all, of the court’s reasoning would apply to smokers as well.
Turning away a smoker is not based on any malevolent discrimination against a person’s status but rather on actual conduct. This particular form of conduct not only increases the risk of damage to your building from fire, smoke and just plain smelliness, but it can also endanger other tenants and create problems for you when they object to transient smoke entering their units. You are protecting your building and tenants by refusing occupancy to the smoker. I suppose some litigious smoker could claim that his nicotine addiction is a protected disability or medical condition. I think the threat of this is more theoretical than real, and I would expect the court to filter out such absurdity and send the case up in smoke.
Therefore, if you want a “no smoking” building, there is only one clear and sensible thing to do—don’t rent to smokers!
—Saul M. Ferster
Q. What’s the duty of a landlord in determining what is or is not appropriate noise for tenants?
A. With all the mine-strewn rules affecting landlords in SF, the most common problem is noise. Buildings are often poorly constructed with thin walls. To say the least, tenants have varying sensitivities to noise. Implied in every rental agreement is a covenant of quiet enjoyment, in which the landlord, landlord’s agent or someone under the landlord’s control promises, through act or omission, not to substantially affect the tenant’s beneficial use or enjoyment of the premises. Minor inconveniences and annoyances are not enough. The landlord’s act or omission must be substantial. A landlord’s failure to control very noisy tenants could be a breach of that covenant. In extreme cases, eviction of a troublesome nuisance tenant may provide the only practical means of preserving the aggrieved tenant’s right to quiet enjoyment.
The most pragmatic approach is to try to avoid the problem in the first place. Screen tenants carefully and check their references. As stated by one of the panel attorneys recently at the monthly SFAA meetings, you don’t have a duty to break-in rowdy, post-college, partying tenants.
Nuisance is ground for eviction even without a lease provision.
You are wise, however, to specify that behavior in the lease. In
the superb PPMA lease, Paragraph 28 (to be initialed by the tenant)
states that the tenant shall not disturb other tenants in the building
or adjoining properties. It also attempts to define what constitutes
nuisance behavior. Three complaints in any nine-month period is
a substantial interference with other tenants’ comfort, safety
and enjoyment and a just cause for eviction, according to the PPMA
lease. Also, it explains that the tenant is responsible for the
conduct of their guests and invitees. Of course, if eviction proceedings
are commenced, the judge or jury will ultimately decide whether
the conduct (even if it occurred three times) is serious enough
to be a nuisance and whether the landlord has enough proof. Also,
in the PPMA lease, the tenant agrees to abide by the House Rules,
which become part of the actual lease. Paragraphs 1, 2 and 3 of
the House Rules state the following specific rules on noise: “1.
Tenants shall not make or permit any noise which will disturb other
residents. No boisterous play or running in hallways. No slamming
doors. 2. Radios, televisions or any other sound equipment should
never be operated to the disturbance of others. Special care should
be exercised before 8:00 AM and after 10:00 PM. Tenant must comply
with the directions of Owner and Owner’s determination shall
be final.” Again, a court may not be bound by these noise rules.
For example, noise that disturbs another tenant may not amount to
a legal nuisance. The court may not accept the owner’s determination
of what is appropriate if it is unreasonable. I have seen other
provisions in rental agreements and rules requiring tenants to install
carpeting/padding for sound insulation. The SF Police Code, Section
2901.11, states that unnecessary, excessive or offensive noise for
a multi-unit building is 5 DBA over the ambient noise level. Of
course, if you seek to evict the offending tenant, get legal help
right away.
—Lawrence M. Scancarelli
Q. I am currently remodeling the bathroom and kitchen of a large apartment unit. Two potential tenants recently approached me and offered to pay $200 during the remodeling process and then pay $2,000 after completion. Could I have a problem with the Rent Board if I proceed with this type of arrangement?
A. Yes. You need to make sure that
the lease clearly specifies the base rent of $2,000 per month. This
amount must be stated as the initial base rent. You may also want
to have a written addendum that defines the side agreement whereby
the landlord will accept less rent (e.g., $200 per month) during
the renovation period only. Also specify the precise term of this
period (e.g., two months).
Remember that there are no guarantees when it comes to tinkering
with the base rent. For instance, lowering the rent during this
recession may result in a permanent readjustment of the base rent
should you, the landlord, decide to re-implement the “normal”
base rent at a later time and the tenant contests this act with
the Rent Board. Analogously, your failure to state the base rent
with absolute certainty may come back to haunt you, as ambiguity
typically works against the landlord. As a result, although you
may enter into this arrangement, beware of unreasonable Rent Board
judges.
Finally, be mindful of other problems associated with this arrangement. For instance, if the remodeling goes longer than expected, or problems arise such as construction delays, the tenants could become upset and seek redress against you for a decrease of services or, in this case scenario, damages for breach of the “warranty of habitability.” That is, if the bathroom and/or kitchen are out of commission, the tenants could argue that they are absolved from any rental obligation. They might even sue you for money on the basis that the rental premises are so defective that they do not meet minimum housing standards. Also, if the tenants should become injured while living in half-constructed housing, you may get sued for personal injury damage. (Think of the following scenario: the tenant uses the bathroom that is under-construction in the middle of the night and steps on a 2 by 4 with a nail sticking out.) Depending on the extent of your remodel, you may discover that renting the unit is illegal until the city inspector has signed off on a final inspection.
Therefore, I recommend waiting the two months or so until the remodeling
is completed before you allow anyone to move in. Patience is a virtue
in this business. If these tenants really want the place, they will
wait until the remodeling is completed.
–David Wasserman
The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Saul M. Ferster can be reached at 863-2678. Lawrence M. Scancarelli can be reached at 398-1644. David Wasserman is with Wasserman & Taxman, 567-9600. © Copyright 2002.