Court Talk

by Clifford E. Fried

Gans v. Smull
Due dates can be confusing. In landlord-tenant law, rent due on a Saturday can sometimes be paid on a Monday. In an unlawful detainer action, an answer must be filed within five days after the complaint is served. If, however, the fifth day falls on a Sunday, the tenant has until Monday to file the answer. Also, if discovery is served by mail, five days are added to the response time.

In Gans v. Smull, the Second District Court of Appeal for California held that when an option to extend a lease must be exercised on or before 60 days prior to the lease’s expiration, there is no extension if the 60th day falls on a holiday. In other words, 60 days is 60 days.

Gans, the tenant, had argued before the court that the Code of Civil Procedure Section 12a extends the time for performing the exercising of an option to extend a lease. Section 12a provides that if the last day to perform an act “provided or required by law” within a specified period of time is a Saturday, Sunday or holiday, then that period is extended to the next day provided this day is not a Saturday, Sunday or holiday.

The 60th day before the expiration of Gans’ 25-year lease fell on a Saturday. Consequently, Gans sent his notice of intent to extend the lease on the following Monday. Smull, the landlord, wrote back to his tenant and told him his exercise was untimely. Tough landlord. Perhaps the rent for the option period was far below market.

The tenant sued for breach of contract and declaratory relief. The trial court dismissed the lawsuit and the landlord prevailed. The Court of Appeal agreed and ruled that there is no law that governs the exercise of an option to extend a lease. In other words, an option to extend a lease is not “provided or required by law.” In this case, the lease required an option to be exercised within a certain period of time. Since Section 12a omits the words “or contract,” this section was inapplicable and did not extend the tenant’s time to exercise the option.

But there are times when Section 12a will extend the time for a landlord or tenant to act. For example, if a Three-Day Notice to Pay Rent or Quit is served on a Wednesday, the third day after service is Saturday. Since the three-day period is dictated by the Code of Civil Procedure 1161, compliance with the notice is an act provided by law. A landlord could not file an unlawful detainer on Monday, because Section 12a gives the tenant until the end of the day on Monday to pay the rent or vacate.

Hopefully this case supplies some answers for landlords and their attorneys about how to calculate due dates. [Gans v. Smull (August 29, 2003) 111 Cal.App.4th 985.]

Balistreri v. Rosenthal
Dates can also be important when it comes to deadlines for filing lawsuits. These deadlines are sometimes referred to as statutes of limitations. In a case decided late last year, the First District Court of Appeal for California held that a tenant’s claim of wrongful eviction was barred by the applicable statute of limitations.

The statute of limitations for filing a Rent Ordinance claim is one year from the wrongful conduct of the landlord. The issue in Balistreri v. Rosenthal pertained to when the statute of limitations began to run.

When a landlord wrongfully endeavors to recover possession of a rental unit—the trigger for a Rent Ordinance violation—several separate acts might be undertaken by the landlord. First, there might be a letter to the tenant stating that he/she should vacate so the owner can move in. Second, there might be a follow up conversation in which the landlord reminds the tenant to leave. Third, there might be a release that the landlord asks the tenant to sign. Last, the landlord might not move into the unit after the tenant vacates.

Which act triggers the running of the one-year statute of limitations? The first? The last? All? Until Balistreri v. Rosenthal was decided, there was no decision from the Court of Appeal clarifying the issue.

On August 1, 1998, Rosenthal, the landlord, had sent a letter to Balistreri, the tenant, stating that the lease was up and that Balistreri should give possession back. The letter did not comply with the requirements of the Rent Ordinance; it was a wholly defective eviction notice. There were subsequent discussions in which the landlord said he himself would be moving into the apartment. The tenant vacated the apartment.

In September 1999, the former tenant, Balistreri, learned that his landlord rented the apartment out to other tenants. Balistreri argued in court that the statute of limitations did not begin to run until September 1999 when he learned his landlord did not intend to move into the rental unit. The landlord argued that the statute began to run when the tenant received the landlord’s letter dated August 1, 1998.

The court ruled in favor of the landlord stating that the tenant had one “primary right” that was violated: the right to be free from wrongful endeavors to recover possession of his rental unit in violation of the Rent Ordinance. Since the landlord first violated the Rent Ordinance by a wrongful endeavor in his letter demanding possession, the statute began to run on August 1, 1998.

In this case, Andrew M. Zacks represented the landlord. Balistreri v. Rosenthal (A101785) was decided on November 24, 2003, as an unpublished decision (which means the appellate court doesn't want the decision published in the official records and the case can't be cited in other court cases as binding authority on any point of law).

Giebeler v. M&B Associates
The courts continue to define the boundaries of the Americans with Disabilities Act (ADA) and landlord-tenant law. The ADA requires landlords to provide reasonable accommodations to disabled persons. Thus, we have seen building inspectors and judges require structural improvements to rental property. We have also seen landlords with “no pet” policies forced to accept service animals and comfort pets owned by disabled tenants.

Undertaking structural renovations of a rental unit is an example of a physical accommodation for the tenant. Permitting a service animal is an example of bending administrative policies governing rentals. But how far must a landlord go in bending administrative policies in order to accommodate a handicapped tenant?

In Giebeler v. M&B Associates, the court tackled the issue of whether relaxation of a landlord’s no-cosigner policy to allow a tenant to live in a rental unit rented by him and his mother constituted a reasonable accommodation required by the Fair Housing Amendments Act (FHAA).

Giebeler, the tenant, had AIDS-related impairments that qualified him as handicapped under federal law and entitled him to reasonable accommodations. However, Giebeler’s monthly SSDI and Housing Opportunities for Person with Aids (HOPWA) subsidies were not enough to meet the triple monthly income requirement of the landlord, M&B Associates.

The tenant then applied for a rental with the same landlord, having his mother complete the application with him. His mother had adequate income and an excellent credit history. The landlord rejected the application on the basis that M&B Associates considered the mother a co-signer and has a policy against allowing co-signers on lease agreements.

The landlord was sued for discrimination. The United States Court of Appeals for the Ninth Circuit concluded that the tenant’s request to reside in the apartment rented for him by his financially qualified mother was a request for an accommodation that he was entitled to receive under FHAA if the adjustment to the landlord’s policy was both (1) necessary to afford the tenant equal opportunity to the use and enjoyment of housing and (2) reasonable within the meaning of FHAA.

The court went on to rule that both requirements of FHAA were met and that the landlord, M&B Associates, was required to bend their rules for Giebeler, the tenant.

The decision of the Ninth Circuit is probably correct. The landlord certainly suffered no additional burden by allowing the mother to co-sign. The court stressed that only reasonable accommodations, that do not cause undue hardship or mandate fundamental changes in a landlord’s program are required by FHAA.

This case is already being cited by tenant advocates in San Francisco regarding whether or not a landlord must accept Section 8 tenants and enter into the program with the San Francisco Housing Authority. The Housing Authority and tenant advocates claim the Section 8 program is mandatory and refusal to participate is discriminatory. Landlord advocates and most other local governments in California take the position that participation in the program is entirely voluntary.

I believe there is a big distinction between bending the rules to allow for a mother to co-sign and forcing a landlord to sign a contract with a government agency. In a co-signer situation, the landlord would receive a single benefit: an additional person to collect from in the event of default. In the Section 8 program, the landlord would be forced to sign a rental agreement provided by the housing authority and would be subjected to pages and pages of federal and local regulations. Unlike the co-signer scenario, the Section 8 program could cause undue hardship or mandate fundamental changes in a landlord’s program.

Whether the Giebeler case will decide the Section 8 debate remains to be seen. Stay tuned. [Giebeler v. M&B Associates (9th Cir., Sep. 15, 2003) 343 F3d 1143.]

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The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. The information within this article is general in nature. Consult an attorney for any specific problem. Clifford E. Fried is with Wiegel & Fried, LLP 415-552-8230. Copyright © 2004 by Clifford E. Fried.