Legal Corner Q & A
By Various Authors
Q. Does an owner have the right to enter the backyard of his or her rental unit to make exterior repairs?
A. California Civil Code §1954 allows the landlord to enter the dwelling unit in case of emergency; to make repairs, decorations, alterations or improvements; to supply necessary or agreed-upon services; to exhibit the dwelling unit to prospective or actual purchasers or contractors; and/or to inspect the unit before the tenant vacates.
Unless there is an emergency, or the tenant has abandoned or vacated the unit, a landlord must provide at least a 24-hour advance written notice of his or her intent to enter the premises for repairs, or for any of the other purposes described above. If the notice is mailed, it should be deposited in the mailbox at least six days before the date of entry. Such entry must be during business hours, unless the tenant agrees otherwise.
The key question is whether the backyard is part of the dwelling unit and, thus, subject to Civil Code §1954 statutory rules. The first place to check is the lease. Paragraph 23 of the PPMA Residential Tenancy Agreement describes the owner's right to enter the premises, which in Paragraph 1 is defined as the unit address and excludes any other portion of the building, unless the lease expressly provides for it. This suggests, in your case, that the backyard would be excluded from the premises under the PPMA Lease. Some leases specifically include the backyard as part of the premises, while others specifically exclude it. If excluded, the landlord may enter the backyard to make repairs at any time, without notice, since it is not part of the tenant's dwelling unit. If the backyard is included as part of the dwelling unit, the landlord should comply with Civil Code §1954, as described above, and provide advance written notice.
Sometimes the backyard is shared with another tenant or even with the owner. If shared with the owner, then the owner could enter and make repairs without the statutory notice. If the owner does not share the backyard, compliance with the code is the safer approach.
If the lease is ambiguous, other laws address the issue. Civil Code §1940(c) defines dwelling unit as a structure or the part of a structure that is used as a home, residence or sleeping place by one person who maintains a household, or by two or more persons who maintain a common household. This suggests that the backyard is not part of the dwelling unit, since it emphasizes the structure. By contrast, San Francisco Rent Ordinance Section 37.2(r) included in its definition of rental unit "the land and appurtenant buildings thereto," and all housing services and privileges. Use of a backyard is often considered a housing service or privilege. Rent Board Regulation 1.17 adds that a housing service or privilege, as part of a rental unit, must be made available by agreement with a tenant in consideration of the payment of rent.
If there is any uncertainty as to whether the backyard
or use of the backyard is part of the premises or dwelling
unit, a prudent landlord should comply with Civil Code
§1954. Compliance would protect the landlord from
liability for wrongful entry. Even if such advance notice
is not legally required, it may foster good tenant relations.
- Lawrence M. Scancarelli & Mark Mullah
Q. My family recently inherited a four-unit building from our aunt. She apparently ran what amounted to a boarding house in one of the flats by individually accepting rent from the four roommates. Apart from the hassle of keeping track of who pays what, is there anything I should know about this type of rental situation?
A. I view your situation as definitely unfavorable. It is different than the typical shared-dwelling situation with roommates who are jointly responsible for the entire rent and usually select prospective replacement roommates themselves. If these roommates don't get along, the problem is theirs to solve. In your case, however, if one of the occupants departs, the other occupants are not obligated to cover the rent. You, rather than the occupants, must select new occupants whenever there is a vacancy. Many compatibility issues often arise, ones that will likely require you to mediate. I recall one instance when one of the lodgers was accused of stealing the others' possessions, refused to take out his trash or clean up, moved his girlfriend in and, without notice, sublet his room while he was on an extended vacation. Needless to say, the other lodgers were astonished to find a complete stranger in their kitchen. The landlady was compelled to spend both time and money on resolving the ensuing disputes.
As the owner/operator you must apply for a permit from both the city and county to operate a rooming house, which is also referred to as a lodging house. There are a number of local code provisions that apply specifically to lodging houses. For example, you must post prominent exit signs, emergency procedures and floor plans that include instructions specifically for ambulatory, nonambulatory and the physically disabled. You must place a bright white emergency light in every hallway, which must remain lit from sunset to sunrise. You also must post fire escape signs illuminated with red lights. You are obligated to immediately notify the Health Department whenever a resident is afflicted with an "infectious, contagious or pestilential disease," and the Health Department then may require you to effectively clean, disinfect and possibly whitewash the dwelling. You are even required to report to the police the presence of any unaccompanied minors in the unit. Lodgers who don't trust each other may place locks on their bedroom doors that do not comply with applicable codes. The Rent Board may view eachof the separately rented rooms as a separate dwelling unit. Thus, a single-family dwelling that would otherwise be considered exempt from rent control under the Costa-Hawkins Act would be viewed instead as a multiple-unit property and subject to rent control if used as a lodging house.
In your situation, there is really no limit to the
potential problems you might face. I suggest that you
seek legal counsel
to assist you in your negotiations withthe lodgers in
order to merge their tenancies under a single lease
arrangement that complies with all applicable legal
requirements.
- Lawrence Scancarelli & Michael Hall
Q. One of my tenants had her apartment checked for asbestos and lead because she has young children. The inspector found asbestos and lead. Now my tenant is demanding that I fix these hazardous conditions. Must I comply with my tenant's demands?
A. Like many of the majority of buildings in San Francisco, yours contains both lead-based paint and asbestos. Absent substantial remodeling or remediation, almost all buildings built before 1978 are likely to have lead-based paint on some surface of the interior or exterior of the home, and most homes built prior to 1950 commonly contain asbestos. According to California's Civil Code Section §1941, "the lessor of a building intended for the occupation of human beings must put it into a condition fit for such occupation, and repair all subsequent dilapidations thereof, which render it untenantable." Specific characteristics that render a unit untenantable are listed in Civil Code Section §1941.1. However, lead paint or asbestos are not specifically mentioned in this section. As a general rule, if the lead paint or asbestos make the unit unsafe, removal or repairs should be conducted. A good guideline to follow is Health and Safety Code §17920.3, which states that "a unit is deemed to be substandard under the State Housing Law and in breach of the warranty of habitability whenever a proscribed condition exists that endangers the life, health, property, safety or welfare of an occupant or any person."
Further, as with all potential dangers that may exist at any of your rental units, if you have knowledge of a dangerous condition and fail to do anything to remove that condition, you could be held liable for any injuries resulting from that dangerous condition (Civil Code Section §1714). For example, if you know that the lead paint is cracking and flaking, but you do not make repairs, you could be liable for the child's injuries caused by the ingestion of paint chips.
In short, you are not required to remove all lead paint and asbestos that exists in the unit. Such a requirement would prove prohibitively expensive in many cases. However, to ensure your tenants' health and protect yourself from potential liability, you should send a professional to inspect the unit for existing dangers presented by the lead paint and asbestos. A professional is not your regular handyman, but instead refers to an inspector certified by the health department, the EPA or other equally reputable hazard-control organization. This expert will be the person who determines whether the lead paint and/or asbestos "endangers the life, health, property, safety or welfare of an occupant or any person," under the Health and Safety Code, and therefore whether or not it must be removed.
If after receiving the test results, there is a recommendation that you conduct remediation, the EPA regulations require that current tenants receive the EPA pamphlet entitled, "Protect Your Family From Lead In Your Home," or a state-approved version of this pamphlet, at least 60 days before the renovation begins. If common areas will be affected, you must distribute a notice to every rental unit in the building describing the nature and location of the renovation work, and the dates work is expected to begin and end. Further, if the lead and/or asbestos constitute a health hazard, and deferred maintenance by the landlord caused or contributed to the existence of this hazard, the costs for remediation cannot be passed through to the tenant. The landlord also must provide relocation expenses to tenants displaced during the remediation, and must complete all repairs within 30 days. Of course, under the Rent Ordinance, the tenants must be allowed back into their units under the same lease terms as when they temporarily vacated.
For future reference, federal law requires that landlords disclose the presence of lead-based paint to tenants if they know it exists. The "Protect Your Family" pamphlet mentioned above must be given to all prospective tenants if the unit was built prior to 1978. Both the landlord and the tenant must sign an EPA-approved disclosure form to prove that the landlord told the tenants about any known lead-based paint or hazards on the premises. Property owners must keep this disclosure form as part of their records for three years from the date that the tenancy begins. If a landlord knowingly fails to make the required disclosures, he or she could be fined, jailed and/or held liable for trebled damages claimed by a tenant in a civil suit.
There are a few minor exceptions to this requirement:
(1) housing built after January 1, 1978, (2) lofts,
efficiencies and studio apartments, (3) short-term vacation
rentals of 100 days or less, (4) a single room rented
in a residential dwelling, and (5) housing designed
for persons with disabilities or for seniors, unless
children less than six-years old live there or are expected
to live there.
- James M. Millar & Sally Morin
Q. My family has a four-unit apartment building and all our renters are Chinese. Recently, we posted a "for rent" sign advertising a vacancy in Cantonese. Should we be concerned about discrimination claims because we only advertise in Cantonese?
A. No, you are free to select
what you believe is your best market for advertising.
As an aside, recent legislation requires a lessor who
negotiates a contract in Chinese, Tagalog, Vietnamese
or Korean to provide a copy of the contract in that
language, as is the case already with Spanish.
- Steven Rosenthal
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. Lawrence Scancarelli and Mark Mallah can be reached at 415-398-1644. Michael Hall can be reached at 415-512-9865. James M. Millar and Sally Morin can be reached at 415-981-8100. Steven Rosenthal can be reached at 415-928-7300. Copyright © 2004.