Legal Corner Q & A

Pot-Smoking Tenants

by Various Authors

Q. One of our tenants regularly smokes marijuana in his unit as part of his medical treatment plan approved by his doctor. Although we are not concerned about what goes on in his unit, many of his fellow tenants have complained bitterly about the pungent odor his smoking creates—some have even moved out. In a town as politically correct as San Francisco, what can we do to please the other tenants while protecting his rights?

A. You are certainly on the right track. In general, the best solution to this problem involves making accommodations for (1) the reasonable request of the complaining tenants to be free from the odor of marijuana smoke and (2) the need of the offending tenant to smoke medicinal marijuana.

All owners of residential rental property have a duty to ensure that each tenant enjoys the benefits of their tenancy without undue interference from other occupants of the property. In legal parlance, an owner must ensure that one tenant's actions or omissions do not interfere with another tenant’s rights of quiet enjoyment in their tenancy. If one tenant causes such interference, the legal and business ramifications of this interference could include: (1) the possibility of a Rent Board petition for a reduction in rent by the complaining tenants (2) a claim against the owners for constructive eviction based on an alleged failure to address the complaining tenant’s concerns, and (3) loss of rental income due to unhappy tenants moving out.

You should contact the offending tenant and politely inform him about the complaints received from other building tenants concerning his use of marijuana. A simple letter should suffice—one that informs the tenant of the issue and includes a request for him to take steps that will prevent marijuana smoke from escaping from his unit. The offending tenant may actually be unaware that his smoking is bothering other tenants in the building.

Since the tenant has a prescription for marijuana, the tenant's health situation/disability may require you to provide certain reasonable accommodations. One solution you might consider is to purchase a personal air filtration system that the tenant could use within a designated portion of his unit. Such a system could mitigate the effects that his smoking of marijuana has on other tenants. Your expenditure of several hundred dollars on a filtration system may well be worth the cost, allowing you to avoid a potentially costly legal dispute.

If the issue is not resolved after writing to the offending tenant, the owners should then contact the local Community Boards program at 415.920.3820 or at their Web site. The Community Boards offers free dispute resolution and mediation services to the local community and provides a cost-effective and humane forum for tenants to resolve their issues. Should the issue remain unresolved even after attempts at mediation through the Community Boards program, you could seek to evict the offending tenant for nuisance behavior, should the tenant's behavior cause a “substantial interference…with the comfort, safety and enjoyment” of the other tenants in the building” (see S.F. Admin. Code section 37.9(a)[3]). A strong case could be established that (1) the tenant's use of marijuana has reached a level of nuisance because he has failed to mitigate the effects of his use of marijuana on the other occupants of the building and (2) the offending behavior constitutes a health and safety risk to the other tenants. The presence of marijuana smoke in the building would most likely be considered a health risk for the complaining tenants, similar to the documented hazards of second-hand tobacco smoke.
— Jak S. Marquez

Q. I recently heard that San Francisco’s Assessor ruled that same-sex domestic partners who jointly own property would not be reassessed by the city upon the death of one of the partners. If this is correct, can I assume the ruling is legally binding and will be upheld by the state and/or the courts?

A. For now, the answer depends upon where the property is located in California, since different county assessors are taking different approaches at this time. If the property is located in San Francisco County, the property will not be reassessed after the death of a registered domestic partner. Former Assessor Doris Ward issued a ruling on October 10, 2002 which holds that same-sex registered domestic partners shall be treated in the same manner as married spouses for purposes of real-property tax assessment under the California Revenue and Taxation Code. Her ruling is based upon her interpretation of revenue and taxation laws under the California constitution's equal protection guarantee.

The Assessor's ruling is supported by Judge A. James Robertson's decision in the Smith v. Knoller case, interpreting the wrongful death statute to allow a surviving same-sex domestic partner to bring a wrongful death cause of action (in that case, against the owners of the dog which killed the decedent.) San Francisco's new Assessor Mabel Teng has indicated that she will continue to interpret the law in the same manner as her predecessor. Therefore, our Assessor will undoubtedly not litigate this issue against surviving domestic partners. The text of the ruling may be viewed at sfgov.org/assessor.

Assessors in other counties have not yet taken the same position, largely because of the fear of potential litigation. But we anticipate that other assessors will adopt the domestic partner exemption after the California Board of Equalization amends property tax rules 462.240 and 462.040 in the near future. The rule change will create an exemption from property tax reassessment after the death of a registered domestic partner, and it will be implemented in all California counties. At this time, the Board of Equalization is receiving public comments concerning the proposal. Carole Migden, the Chairwoman of the Board of Equalization, is a major supporter of the proposed amendment. She anticipates a favorable decision at the Board’s meeting on July 9, 2003. The proposed amendment is based upon an interpretation of Assembly Bill 2216, which was enacted into law in September 2002, and which creates interstate inheritance rights for surviving registered domestic partners.
— Michael C. Hall

Q. Can a husband and wife evict tenants living in a duplex so that each spouse can occupy one of the units?

A. The rules governing owner-move in (OMI) and relative move-in (RMI) evictions are complicated, particularly since Prop. G, effective December 1998, placed great restrictions on these evictions. Added to that are recent court rulings enjoining the city from enforcing some of its provisions. To answer your question, I assume: (1) the units are covered by the Rent Ordinance; (2) husband and wife are still married, not separated and, in fact intend to occupy both the units together as their principal place of residence for at least three years; (3) they each own at least a 25 percent record interest in the duplex; and (4) neither own any other comparable units in the city that are vacant and available. Such an eviction would be undertaken under Section 37.9(a)(8) of the Rent Ordinance, which allows OMI evictions and RMI evictions where the relative is the owner's spouse.

Before the recent court decisions, an eviction attempt would have been extremely risky due to the one owner OMI- eviction rule and because some San Francisco judges who could rule on the issue have held that, under the Rent Ordinance and Reg. 12.14, a non-separated couple cannot OMI two units. Reg. 12.14 states that, for purposes of an OMI eviction, an owner can only have one principal place of residence (PPOR), defined as their permanent or primary home. A key element of evidence to prove PPOR is whether or not the owner normally returns to the unit as his/her home.

The recent Bullard decision from the state Court of Appeal eliminated the (Prop. G) OMI requirement that the owner had to offer to the tenant, at non-market rent, any available, non-comparable, vacant unit he/she owned in the building or elsewhere in the city. The Cwynar San Francisco court decision, relying on the published Cwynar Court of Appeal decision, held that as applied to that case the following Prop. G requirements were unconstitutional and unenforceable: (1) the one-OMI-eviction-per-building rule (since December 1998), which prevented TIC groups purchasing a multiple-unit building from performing OMI evictions on two separate units; (2) the tenant protection provisions preventing OMI evictions and most RMI evictions for tenants who live in the unit for 10 years and are 60 or disabled, or live in the unit for five years and have a catastrophic illness; and (3) the rule that, for a RMI eviction, the owner must be residing in the building or moving in at the same time.

In my opinion, the Cwynar decisions would be very persuasive in convincing a San Francisco judge that, as a matter of law, two owners (who happen to be married) could in good faith occupy two units. If the one OMI-eviction-per-building ruling is unconstitutional for unrelated owners, the same should apply to related parties. Unfortunately, the Cwynar court did not specifically rule on Reg. 12.14.

Even if none of the remaining enforceable prohibitions against OMI and RMI evictions would definitely prevent the husband-and-wife owners from evicting the tenants, if the case were not settled before trial, the owners would have to prove, before a San Francisco jury, probably made up of many tenants, that they intend, in good faith, without ulterior reasons and with honest intent, to occupy the units (or individual unit) as their principal place of residence for three years. The tenants would be able to conduct discovery relating to private matters between the husband-and-wife owner relevant to that good faith, honest intent and lack of ulterior reasons—for example, do they sleep together? If they had 10 children, their family size would prove a persuasive argument for their need to use both units as their residence. If they were separated, yet shared joint custody of their children, this situation might also be persuasive. There are many other factors that would affect the probability of success. For example, if there was a history of legitimate unresolved tenant habitability complaints, particularly in the last six months, the tenants could argue retaliation as a defense. If the owners had recently attempted to evict the tenants showing economic motives, their actions could also be a problem. If the husband and wife owners do obtain possession, and desire to legally combine the units into one legal unit, the Planning Department would require a discretionary hearing. Before undertaking such an eviction, retain an experienced landlord-tenant attorney who is up to date on legal developments and make sure you have insurance coverage for wrongful eviction.
— Lawrence M. Scancarelli

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 specific problem. Jak S. Marquez can be reached at 415.495.8500. Michael C. Hall can be reached at 415.512.9865. Lawrence M. Scancarelli be reached at 415.398.1644.