Legal Corner Q & A

Unit Inspections, Key Replacement, and Renter's Insurance

By Various Authors

Q. Is there a limit to the number of times in a year I can “inspect” the units and equipment for needed repairs and damage? When can I collect for tenant-caused damage? Do I have to wait until the tenant moves out to settle up?

A. There is no limit to the number of times in a year that you can “inspect” the units and equipment for needed repairs, or required services, so long as you comply with California Civil Code §1954.
Section 1954 permits you to:

enter a dwelling unit without the consent of the tenant in case of emergency;
make necessary or agreed repairs, decorations, alterations or improvements, and supply necessary or agreed services;
exhibit the dwelling unit to, among others, workmen or contractors; or
conduct a pre-move-out security deposit inspection.

Theoretically, at least, you can do as many inspections as you like with the consent of the tenant. Consent means true consent, not coerced or pressured consent. Beyond that, normal reason and logic, as well as the particular facts and circumstances characterizing the rental unit in question, would determine whether or not an inspection is necessary. There is, of course, a point at which you run the risk that an excessive number of inspections, without justification, would be interpreted by the tenant as harassment in violation of the tenant’s right of quiet enjoyment of the premises. There is no objective standard to determine this, and every case will turn on its own facts.

Clearly, the easiest method of collection for tenant-caused damage is from the security deposit. Section 1950.5 of the California Civil Code governs security deposits, and nothing in that section specifically requires that the landlord refrain from deductions until the tenant vacates. A well-written lease, like the PPMA Lease, has a provision authorizing you to deduct money from the security deposit to make repairs that become necessary prior to the tenant vacating the unit, and requiring the tenant to replenish any used security deposit.

Of course, one new aspect to Section 1950.5 is the obligation to accommodate the tenant with a pre-move out inspection within the last two weeks of tenancy, if the tenant so requests, in order to give the tenant an opportunity to remedy any damages the tenant chooses to remedy, consistent with the rental agreement, in order to preserve the security deposit. Arguably, before you could deduct from the security deposit during the mid-term, you would have to extend the same opportunity to remedy the problem that exists at the end of the tenancy. I suppose an argument could even be made that by recognizing the right of a pre-move out inspection, the intention of the Legislature was to permit deduction from the security deposit only at move out. Nothing in the statute actually says that, however, and I think it illogical to require the landlord to wait for move out to collect for damage committed to the premises, particularly if the damage is severe or something which cannot be left unremedied, such as a broken window or missing exterior door.

Finally, the security deposit is not always your only remedy, and in many cases may not be enough to cover damages. You may sue the tenant in Small Claims Court if you can limit your recovery to $5,000 or less, at any time, without delving into the security deposit. The difference between the two methods of recovery, of course, is that you’re holding the security deposit, but you may not be able to squeeze a Small Claims Court judgment out of the errant tenant.
– Saul M. Ferster

Q. Is there a law or rule regarding how often I have to repaint a tenant’s apartment?

A. You’re from New York City with that kind of rule—aren’t ya? Generally, in the Golden State and even in San Francisco, there is no such required provision in the rental agreement for well-maintained paint and walls. However, painting might be required to correct an unhealthy condition. In a previous Q&A column, we listed the conditions covered by the warranty of habitability (from Civil Code Section 1941.1), including the provision of clean and sanitary premises for the tenant. Other laws deal with lead paint and asbestos. What is the condition of the paint? Chipping or flaking paint, especially in a pre-1978 building, poses a health risk for lead exposure, particularly for children. The condition of the paint and walls could also indicate mold or mildew. Correcting a mold or mildew problem will require painting. Also, certain older popcorn-type ceilings contain asbestos or other harmful chemicals, and these need routine painting to seal the surface. Consequently, if the deteriorating paint poses a serious health risk, the owner has a duty to repaint. If it were solely a cosmetic issue, it would not be required.

Make sure before you enter into a lease agreement with a tenant that you disclose on the required form any known lead-based hazards for a pre-1978 dwelling, provide available reports to prospective tenants, give the tenant a copy of the EPA booklet entitled “Protect Your Family from Lead in your Home” and obtain an acknowledgment of receipt from the tenant. The superb PPMA Lease, Paragraph 32, on lead disclosure, provides a place for the tenant to indicate that the owner has provided the booklet and required notice as attachments to the lease. Finally, for new tenants, make sure you use a move-in checklist that confirms the rental unit, including the paint and walls, are in good condition.
– Lawrence M. Scancarelli & Mark Mallah

Q. Can I justify my requirement that tenants are responsible for the repair and replacement of their appliances?

A. There is no legal obligation for the landlord to provide convenience appliances within the rented residence. If the tenant provides his or her own stove, refrigerator, washer/dryer and/or garbage disposal, then the landlord has no obligation to repair them.

If the residence is rented with the appliances included, then the landlord may require the tenant to repair defects caused by the tenant’s misuse. The rental agreement may provide that the landlord can deduct the cost of any repairs attributable to tenant misuse from the tenant’s security deposit, and to require the tenant to restore the security deposit to the original amount. Difficulties may arise in determining whether a particular repair is necessarily due to tenant misuse or is instead due to ordinary wear and tear. As a practical matter, the preferable approach is for the landlord to make satisfactory repair arrangements with authorized repair technicians of the landlord’s own choice.

If the defect is not caused by tenant misuse, then the answer depends on whether the particular defect affects the habitability of the dwelling. In the absence of an agreement to the contrary, the California Civil Code requires the landlord to maintain the habitability of the unit, which includes keeping plumbing, heating, gas and electrical facilities in good working order. The landlord’s obligation to maintain the habitability of the dwelling is not specifically defined to include appliances such as stoves and refrigerators, although it would include the gas plumbing to a stove and the electrical wiring and receptacles. However, if an appliance falls into such disrepair that it presents a fire hazard or other hazardous condition, then the landlord should immediately make sure that it is properly repaired or replaced. If the tenant owns the hazardous appliance, the tenant should be prohibited from using it until it is repaired or replaced.

Any agreement between the landlord and the tenant waiving or modifying the landlord’s obligation to maintain the habitability of the premises is void as contrary to public policy. However, the law allows the landlord and the tenant to agree that the tenant will undertake specific repairs and improvements as part of the consideration of the rental.Thecourts would probably disfavor any such repair agreement if it were part of the boilerplate lease, rather than specifically negotiated in a particular lease transaction. Thus, in a specific instance, the landlord and the tenant may agree that the tenant will undertake a certain repair in exchange for a rent reduction or credit.

In my opinion, the best approach is probably for the landlord to provide and maintain the appliances, and to charge the tenant directly or through a security deposit deduction for repairs caused by the tenant’s misuse. Any disputes could be resolved through Small Claims Court. Thus, the landlord would not be on the defensive with respect to the obligation to maintain the habitability of the unit, which would commonly arise as a tenant’s affirmative defense in a non-payment of rent lawsuit.
– Michael C. Hall

Q. One of my tenants lost her keys along with her ID, address and other identification. Our apartment building has special security locks on the front door. If we feel it is necessary to replace the lobby keys for all tenants, who should pay for this?

A. As is common with this type of question, there are not any clear-cut answers or specific laws or statutes that address this issue in San Francisco. With that caveat aside, the only sure recommendation is that you, as a landlord, should seek to include lease terms that provide for re-keying all units if one key is lost, thereby giving notice to your tenant that such costs will be borne by her.

To protect yourself from the tenant who makes a claim that her payment for the total replacement is unfair or excessive, we would suggest that you implement two simple procedures. First, be sure to collect a deposit from each tenant when he/she signs the lease in an amount that would cover the cost of re-keying all locks. Make sure that the deposit does not exceed two months’ rent, per state law. The deposit, can be used to “repair damages, exclusive of ordinary wear and tear, caused by the tenant or his guest(s)” such as repairing the damage caused by the breakdown of security at the building (Civil Code §1950.5). Second, prior to the tenancy, explain to the tenant that the loss of even one key could result in the tenant paying for the replacement of all keys in the building.

Although the above advisements would give the tenant warning, and hopefully cause her to be more careful with her keys, we can see how this straightforward remedy could be muddied. What about the possible high cost of re-keying a large apartment building? What about the tenant who simply misplaces her key, leaving it uncertain whether someone could identify the key as the one to your building? As a general rule, if you do not have notice of a potential breach of security, there is no duty to change the locks. By law, the tenant is “responsible for notifying the landlord” when she becomes aware of an inoperable lock at the premises, which we read to mean a lock that does not keep unauthorized persons out, even if those persons have keys. The landlord will not be liable unless he/she fails to fix the locks within a reasonable time after receiving notice of the problem (Civil Code §1941.3).

On a related issue, many landlords are surprised to learn that if he/she fails to maintain the integrity of dead bolt locks on all doors and locks on windows, a tenant may bring an action for damages and injunctive relief (Civil Code §1941.3). Also, the tenant may refuse to pay rent and can defend against an unlawful detainer action for nonpayment of rent on the basis that the landlord failed to provide adequate locks. The landlord should always make sure that proper locks are in place, both to ensure security, and, if that were not sufficient reason, to prevent any such defense from being asserted by a tenant in a unlawful detainer action.
– James M. Millar & Sally Morin

Q. Should we make it a rule that all tenants must carry renters’ insurance?

A. No. Requiring this as a covenant of the lease would be practically impossible to enforce. I cannot imagine a successful eviction in San Francisco based on the fact that the tenant, who otherwise has always paid rent on time and obeyed the laws, failed to maintain renters’ insurance—a policy that would only serve to benefit the tenant in the event of a loss. Make sure your tenants are responsible for looking after themselves.

What I recommend instead is the adoption of the same disclosure set forth in the 2002 PPMA Lease Agreement. According to Paragraph 30 regarding insurance, “Owner’s insurance does not provide for coverage of Tenant’s personal belongings or personal liability unless as a dire and proximate result of Owner’s negligence. Therefore, Owner strongly urges and recommends to each Tenant that Tenant secure sufficient insurance to protect against losses such as fire, flood, theft, vandalism, personal injury or other casualty.” Remember to make sure that your tenant(s) separately initials this paragraph.

This disclosure puts the tenants on actual notice that any damage to the tenants’ possessions are not covered by the building’s policy unless directly caused by the landlord. The tenants are clearly advised to carry their own insurance. With this disclosure in place, a tenant is hard pressed to seek indemnity from the owner when the apartment’s contents are damaged or destroyed. In addition, the landlord does not have to constantly monitor insurance policies (and renewals), and further does not have to contend with difficult eviction issues when tenants refuse to procure coverage that will protect them from loss.
– David Wasserma

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. Saul M. Ferster can be reached at 415-863-2678 . Lawrence M. Scancarelli and Mark Mallah can be reached at 415-398-1644 . James M. Millar and Sally Morin can be reached at 415-981-8100 . Michael C. Hall can be reached at 415-512-9865 . David Wasserman is with Wasserman & Taxman, 415-567-9600. Copyright © 2003 San Francisco Apartment Magazine