Legal Corner Q & A

The Important Written Word

by Various Authors

Q. One of this magazine’s columnists recommended getting everything in writing. What if the tenant refuses to put any requests in writing?
A. Of course, the best practice is to get everything in writing. That way, there cannot be any questions at a later time regarding exactly what was and what was not communicated or requested. Unfortunately, a tenant is not legally bound to put all requests in writing.

Marc Wilson, who made this reference in a recent article, provided a number of reasons for suggesting that you, the landlord, ask the tenant to place a request in writing. One reason is to deal more effectively with unreasonable or frivolous requests. First, a tenant who makes a request without merit may not bother to put it in writing—the result is that you need not do anything more. Second, if the tenant actually does sit down with pen and paper, the tenant may realize—once viewing their own words staring up at them—how ridiculous the request really is and abandon it forever. Last, even if the tenant does send you a request, you will have both a written record made by the tenant that illustrates how preposterous the request really is and an excellent piece of evidence that confirms your correctness in denying it. So, to repeat, in this situation if the tenant will not put the request in writing, forget it.

Even with nonfrivolous requests, however, a request in writing is helpful, because it defines the exact nature of the problem to be solved, provides useful information for the landlord and sets the clock running on your response time. The last of these factors will work for or against you, depending on your diligence in taking action. However, there are two types of worthy requests that you need to understand: those you have discretion to reject and those you are compelled to honor. The first type generally involves a request for a benefit you are not required to provide. For example, you are not required to approve the tenant’s request to have a pet, to paint the apartment or to install new carpets. These types of requests can usually be ignored unless put in writing; and, if the tenant really wants it, he or she will make a written request to you. Other requests, however, that deal primarily with issues of safety and/or habitability, should not be ignored even if they are not put in writing. You are required to provide heat, fix broken windows, prevent seriously peeling paint and maintain the unit free of health and safety hazards. When an oral request comes to you for a remedy in such areas, in spite of your policy for a written repair request, you run a significant risk if you ignore the problem and do not take any action simply because you did not receive a written request. The tenant’s failure to honor your policy of written repair requests does not absolve you of the obligation to maintain the premises in a safe and habitable condition; and your failure to take action in a reasonable time, depending on the problem, puts you at risk. Therefore, you should at least make your own written record of the oral request for your file and then remedy the problem. Your own memo will serve as evidence of the date and nature of the request. As with so many other aspects of running a business, you need to make a judgment call based on the individual facts and circumstances at play in each situation—after all, this is why you are getting the big bucks at 0.6 percent.
– Saul M. Ferster

Q. How do I phrase a letter to a tenant, explaining that the next time her toilet backs up because she uses too much toilet paper, she will be responsible for paying the plumber?

A. The tenor of your letter, as in all your correspondence, should be courteous, factual and nonaccusatory. You should first advise the tenant that you have been made aware of a recent problem regarding a clogged toilet. Then indicate to the tenant the specific number of times that a plumber has been called to the premises to fix the toilet; and explain that on each occasion the plumber discovered the problem was caused by excessive toilet paper clogging the toilet. Further advise the tenant that under Civil Code §1941.2(a)(1), she has an affirmative obligation to keep the premises clean and sanitary. Also inform her that, under §1941.2(a)(3), she is required to use all electrical, gas and plumbing fixtures properly and to keep them as clean and sanitary as their condition permits. Your letter should also advise the tenant to be cognizant of this problem and instruct her not to place excessive toilet paper down the toilet in the future.

Finally, you should advise the tenant that if it is necessary to call a plumber to unclog the toilet due to excessive toilet paper, the cost of repair will be billed to her or deducted from the security deposit, pursuant to Civil Code §1950.5(b)(2). I would also recommend that you speak with the tenant directly to avoid any misunderstanding regarding this problem.
– Kenneth Vierra

Q. My tenants are always complaining that the smoke detectors in their apartments go off when they cook. Most of the time, they take them down and remove the batteries, so essentially their apartments are without smoke detectors. Whose problem is this?

A. It is a joint problem. State and local law requires that every residential property should have properly approved, operating and functioning smoke and/or heat detectors. You could be cited by the city if you are not in compliance. As an owner, you also have the duty to provide habitable premises, which includes compliance with this law. You also have a duty to act with reasonable care to protect the tenants and the property from foreseeable harm and damage. The tenant also has a duty under state law to remedy damage caused by his/her lack of reasonable care.

The best protection is a good lease such as the PPMA Lease with provisions that specify the tenant’s duties. In each of your leases, you should have a lease provision, acknowledged by both the owner and the tenant at the beginning of the tenancy, that everything in the unit is in good condition and working order, including the smoke detector(s). The PPMA Lease, paragraph 40, provides that the tenant will maintain, in proper order, and test monthly all the smoke detectors at the premises and will not remove batteries, disable them or in any way interfere with their normal operation. Periodic inspections to ensure compliance are also a good practice. I recommend that you sit down with your tenants and remind them that the smoke detectors are for their own safety and that they should not disable them. Smoke detectors are designed to be sensitive enough to be activated by smoke from cooking. Explore ways of improving the ventilation, so the smoke detectors will not be activated from normal cooking. Follow the discussion up with a letter to each of your tenants.

What if your old lease does not have these provisions? If the tenant is month-to-month, you can change the terms of the tenancy with a 30-day notice. If the tenant does not comply, these provisions would probably be enforceable in an eviction because they are material and relate to health and safety. Always obtain advice from an experienced landlord-tenant lawyer before evicting a tenant.
– 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. Saul M. Ferster can be reached at 863-2678, Kenneth Vierra is with Lynch, Gilardi & Grummer, 415-397-2800. Lawrence M. Scancarelli can be reached at 415-398-1644. Copyright © 2004 by San Francisco Apartment Magazine. All Rights Reserved.