Legal Corner Q & A
by Various Authors
Q. Can I insert the following provision into the language of my lease: “Tenant pays all repairs under $100?”
A. You can do it, but it is not a good idea and may not be enforceable. Under California law, a warranty of habitability is implied in all residential rental agreements. In California, under Civil Code Section 1941, a residential landlord has a statutory duty to put the premises “into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable.” The warranty covers the tenant’s unit and also common areas—hallways, stairways and the common grounds.
Conditions covered by the warranty under Civil Code Section 1941.1 include the following:
- Weather protection (effective waterproofing and weather protection of the roof, exterior walls, windows and doors);
- Plumbing and gas (plumbing and gas facilities that conform to state and local laws at the time of installation and maintained in good working order);
- Water (a water supply that produces hot and cold running water and is approved under applicable law);
- Heating (heat that conforms to applicable law at the time of installation and maintained in good working order);
- Electricity (an electrical system that includes lighting, wiring and equipment in conformity with applicable law at the time of installation and maintained in good working order);
- Clean and sanitary premises (building, grounds and appurtenances that, at the inception of and during the rental period, are clean, sanitary and free from all accumulations of debris, filth, garbage, rodents and vermin);
- Trash facilities (an adequate number of appropriate garbage and rubbish receptacles that are kept clean and in good repair at all times, beginning with the inception of the rental period);
- Floors, stairways and railings maintained in good repair;
- Window locks or security devices (specified industry standard dead-bolt locks on each “main swinging entry door of a dwelling unit,” operable window security or locking devices for windows designed to be opened, and locking mechanisms that meet fire and safety code standards on exterior doors and provide ingress or egress to common areas with access to dwelling units in multifamily developments;
- Telephone jacks and wiring (landlord responsible for installation of at least one usable telephone jack and the placement, maintenance and repair of inside telephone wiring in good working order).
Under Civil Code Section 1941.1, the tenant's right to “habitable” premises cannot be waived. Residential landlords cannot avoid this right through any lease provision. On the other hand, the tenant’s obligation is to repair “deteriorations” and “injuries” to the premises caused by his or her own “want of ordinary care.” A good rental agreement such as the PPMA Residential Lease will specify these tenant duties (see paragraph 19 of the lease). If the desired lease language were limited to tenant-caused“deteriorations”or “injuries,” you could provide that the tenant makes these repairs, but you should not limit the cost to $100.
You could also have such a lease provision if the repairs
are not related to habitability but include such issues
as cosmetic repairs, garden
maintenance, etc. However, you cannot force the tenant
to make the important “habitability” types
of repairs. Even with permissible tenant repairs, you
probably should not allow the tenant to make their repairs.
For example, if a contractor is not paid, a mechanic’s
lien can be recorded against the property. You also
have an interest as the owner in controlling the quality
of any work done.
– Lawrence M. Scancarelli
Q. We’ve had numerous complaints about noisy children in our buildings. We’ve even had a few tenants move out because these little munchkins made too much noise. Is there any way to forbid tenants with children?
A. No. Landlords generally
have broad discretion in selecting acceptable tenants.
However, landlords cannot unlawfully discriminate against
certain classes of persons. Both federal and state laws
make housing discrimination based on age or familial
status unlawful. If there are other lawful grounds on
which you may choose an applicant over another that
does not involve age or family status, even if that
applicant has children, that may be lawful. Penalties
for unlawful discrimination can be very
severe. Under the Unruh Act, damages can be trebled.
Under both federal and state law, the prevailing party
may also be entitled to attorney’s fees.
– Jeffery P. Woo
Q. Can a landlord be forced by the Rent Board to return all previous rent paid by a tenant who resided in an illegal unit?
A. The Rent Board is a creation of the Rent Ordinance, and the latter specifies the board’s powers and duties. According to this ordinance, the basic purpose of the Rent Board is to address the high rents created by “the shortage of decent, safe and sanitary housing in the City and County of San Francisco resulting in a critically low vacancy factor.” The Rent Ordinance is supposed to stabilize rents and resist the upward pressure from the forces of supply and demand. The goal of the Rent Board is not to shut down or eliminate illegal housing units, which proliferate in San Francisco. Such action would only create an even greater housing shortage with even more market pressure on rents (given the current vacancy rate, there is a question as to whether there is a shortage at all). In fact, the Rent Board has always held that illegal units are included in the definition of “rental unit” under the ordinance. Therefore, although the Department of Building Inspection, pursuant to its mission, may move to close down an illegal unit, the Rent Board has never differentiated between legal and illegal units and has addressed only illegal rent increases for either legal or illegal units. Rent control is, after all, just that—a control on the amount of rent that can be charged for a unit.
The refund of rent payments the Rent Board is authorized to order is based on finding that all or any portion of a rent increase is not justified, or that any non-conforming rent increase is null and void. The Administrative Law Judge can order a payment or refund of all or a portion of the cumulative amount or an offset against future rents, going back for a maximum of three years. The Rent Board can also order a rent refund for reduced service, considered just another type of unlawful rent increase, although this could be for a different period of time, depending on the circumstances.
Neither of these has anything to do with the legality or illegality of the unit. The bottom line is that if the Rent Board orders rent refunds for illegal units, the board would be encouraging the withdrawal of units from the rental market, thereby shooting the Ordinance, and itself, in the foot.
- Saul M. Ferster
The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specfic problem. Saul M. Ferster can be reached at 415.863.2678. Lawrence M. Scancarelli can be reached at 415.398.1644 Jeffery P. Woo can be reached at 415.705.6470. Copyright © 2003 San Francisco Apartment Magazine