Legal Corner Q & A

From Greasy Footprints to Garden Parties

by Various Authors

Q. We have a tenant who regularly tracks grease into her apartment (she’s a mechanic). The trail of evidence leads from the front door through the lobby and stairs directly to her door. We have been forced to professionally clean and treat the common area rugs several times due to these grease marks. When she vacates, we will deduct the cost of cleaning her unit of the grease damage from her security deposit. However, we also intend to deduct the cost of cleaning the common area carpets as well. Is this legal? In the interim, should we also charge her for the cost of cleaning the common-area carpets?

A. The starting point for any question about security deposits is California’s Civil Code Section 1950.5. Under 1950.5(b), the security deposit can be used to:

compensate a landlord for a default in rent payments;
repair damage to the premises;
clean the premises to the level of cleanliness at the inception of the tenancy;
remedy future defaults by the tenant if authorized by the lease

Are common areas considered part of the premises? You should first check your rental agreement to see if it addresses this question. For example, Paragraph 1 of the Residential Rental Agreement (the PPMA Lease) has a blank line to list the property address, defined as the “premises.” It then states that, “no other portion of the building...wherein the Premises is located is included unless expressly provided for in this Agreement.” This means that common areas are not part of the premises according to the rental agreement. But Paragraph 5 pertaining to security deposits states that they can be used to repair “damages caused by Tenant.” This includes not only damage to the premises, but damages clearly caused by the tenant, which should also include common areas.

Civil Code Section 1941.2 states that the tenant has certain affirmative obligations that include efforts to keep those parts of the premises he/she occupies and uses both clean and sanitary, to dispose of all garbage in a clean and sanitary manner, and to not permit any damage to “any part of the structure or dwelling unit or the facilities, equipment, or appurtenances thereto.” This confirms that the tenant’s obligations include not only his/her particular unit but the rest of the structure as well, including common areas.

Also Civil Code Section 1929 states that, “The hirer of a thing [the tenant] must repair all deteriorations…occasioned by his want of ordinary care.” In other words, a tenant is obligated to repair damage caused by his/her failure to use ordinary care. Trailing grease along common area carpets should be covered by this provision.

Therefore, assuming your lease does not restrict you from using the security deposit to repair common areas, Civil Code Sections 1941.2, 1929, and 1980 allow it. A tenant can always challenge it in small claims court. Make sure that you document the damages/trail of grease with photographs and receipts for the cleaning.

Under Section 1941.2, you are also justified in requesting that the tenant reimburse you for the cost of cleaning the common area carpets at the actual time of the cleaning. If they refuse, you could then, as stated, deduct these costs from the security deposit when they vacate.
– Lawrence M. Scancarelli & Mark Mallah

Q. Can a landlord place a prearranged move-out clause into her/his lease agreement that specifies how much will be paid, in order to allow the owner to move into the tenant’s unit?

A. If it is your intention to do an owner move-in to the apartment you are now leasing, you certainly can provide in the lease some of the details that will be involved when you do it. However, the provisions that you place in the lease, just as with any other rental provisions, cannot diminish the minimum requirements set forth in the Rent Ordinance. If that were so, you could get around every undesirable part of the Ordinance simply by writing the provisions out of your lease. The payment due when an owner moves in is $1,000 per tenant, $500 at the time the notice terminating the tenancy is given and $500 when the tenant moves out. There is obviously no need to write this amount into the rental agreement. Paying less would be hardly palatable to the tenants, and it is also illegal. The issue then becomes whether and when to include a larger payment in the lease.

As we all know, for a variety of reasons, an owner who moves in sometimes pays tenants additional sums. An owner may simply intend to assist a long-term tenant with whom he/she has good relations to find a new place. Or perhaps the tenant is entitled to a 60-day notice and will vacate sooner if the owner pays something extra. Alternatively, the tenant may decide to benefit from the old adage that possession is nine tenths of the law—you want it, he got it! Although legally required to move, the tenant has the power, if not the right, to force the owner to go through a series of expensive legal procedures. In such cases, the owner may be willing to pay the tenant a sum over and above the $1,000 per tenant requirement to avoid the hassle, delay and expense of a lawsuit. Most often, an appreciable extra bite of the apple is given because issues exist that may become the seeds of costly and uncertain litigation, such as retaliation or sticky questions about the owner’s intent regarding whether the owner really plans to use the premises as his/her principal place of residence for the requisite 36 continuous months. In order to prevail at trial, the owner must prove that he/she seeks to recover possession “in good faith, without ulterior reasons and with honest intent,” according to the language of the Rent Ordinance. In other words, twelve strangers on the jury, regardless of their qualifications, are asked to play psychiatrist and look into the owner’s mind and divine what is going on there—a volatile scenario at best.

Most of the above situations cannot be foreseen, and an owner cannot know if the tenant will be satisfied to accept in the future what he/she is willing to sign onto today. Of course, we could argue that the tenant is obligated, because he/she has made a contract for even more than the Rent Ordinance requires. It should be legally binding. Maybe it is. You, however, have a legal right to evict him/her for a mere $1,000 without the lease provision. What is the difference between enforcing the one right or the other? The answer is that either way, you are looking at cost and uncertainty.

Perhaps the answer is that there are many tenants who simply honor their agreements. If the owner places such a provision in the lease, the tenant may honor it simply because the tenant is an honorable person. In addition, the provision does serve a corollary benefit. One of the common defenses to an owner move-in eviction is alleged retaliation. Even though when the unit is rented, the owner may already have the intention of moving in six to twelve months down the line, if the tenant makes a complaint to a city agency, or otherwise attempts to exercise a “lawful right” during the intervening period, the tenant may later argue the intention to evict was newly formed from pique at the tenant’s efforts. A clause in the lease from inception, stating the owner’s intent to move in, should dull a retaliatory eviction defense. The provision at least sets the record straight that the owner’s intention is and has been to move in all along, and the owner is not acting out of bad faith, with ulterior reasons and with dishonest intent. That, in and of itself, can go a long way.
– Saul M. Ferster

Q. We live in a two-unit building with tenants occupying the lower flat. The addendum to the rental agreement (PPMA Lease) states that the “use of the garden and storage shed is not included.” If we allowed the tenants to use the garden on rare occasions for a party, for example, would we waive our continuing rights to bar the use of the garden in general?

A. No. In general, you will always be able to restrict the use of the garden. The question, however, is that in doing so, have you reduced your tenants’ housing services such that they would be entitled to a rent reduction?

Section 10.10 of the Rules and Regulations provides that a “tenant may petition for a reduction of base rent where a landlord, without a corresponding reduction in rent, has (a) substantially decreased housing services, including any service added after commencement of the tenancy and for which additional consideration was paid when it was provided…”
Assuming you are not charging your tenants for the occasional use of the garden, your future refusal to allow them to use the garden as set forth in your lease will not constitute a reduction of services.
– Jeffery P. Woo

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. Theinformation contained in this article is general in nature. Saul M. Ferster can be reached at 415-863-2678 Lawrence M. Scancarelli and Mark Mallah can be reached at 415-398-1644 Jeffery P. Woo is with the law firm of Woo & Associates. He can be contacted at 415-705-6470 .