Legal Corner Q & A
by Various Authors
Q. After advertising a rental at a set rate, can I later increase the price if I feel the market has changed?
A. Yes. A landlord is generally free to adjust the asking rent for a rental unit upward or downward at any time as long as the landlord has not already entered into an agreement with a tenant for the asking rent. For instance, if a landlord advertises a rental unit with a rent of $1,000 and subsequently discovers that the market will actually bear a rent of $1,500, then the landlord can increase the asking rent to $1,500. Simply because a landlord initially underestimates the market value of a rental unit does not necessarily bind the landlord to the lower rent. However, once the landlord enters into a rental agreement with a tenant, then the rent cannot be increased in this manner. Notwithstanding the above, when a tenant asks about a rental unit, a landlord should be careful not to be subjective in increasing the asking rent, so as to avoid potential claims of discrimination or false advertisement.
– Steven C. Williams
Q. Am I required to pay a tenant a fee when performing an owner move-in eviction?
A. Generally, yes. Under Section 37.9B(d) of the San Francisco Rent Ordinance, each tenant who has resided in the premises for 12 months or more is entitled to $1,000 for relocation expenses. At the time the notice is served, $500 must be paid with the balance paid at the time the tenant vacates. One exception to this rule is if the building where the unit is located contains less then two units, then the relocation fee does not apply. For the purpose of this rule, children are not considered tenants and are not entitled to the relocation expense.
– Jeffery P. Woo
Q. My building has long maintained a policy that forbids pets. Recently, I saw a tenant bring a dog into his unit. When I asked him about the dog, he stated that he was dog-sitting for the day. However, a few days later, I saw him walking the dog again. Should I issue a Three-Day Notice to Perform Conditions or Quit?
A. First, you need to confirm that the written rental agreement with this tenant, in fact, prohibits pets. A building policy may not be sufficient, especially if there is no signed agreement between the owner and tenant. In order to serve a three-day notice for breach of a lease covenant, you must actually have a lease covenant to reference. The 2004 PPMA Residential Tenancy Agreement (item #12) clearly states that “No pets, dogs, cats, birds, fish or other animals are allowed in or about the Premises, even temporarily or with a visiting guest, without prior written consent of Owner …”
After ensuring that you have definitive lease language to substantiate your demand, review your file to ascertain whether you have waived this prohibition in the past by allowing either this tenant or other
co-tenants in this same unit to have pets.
If in fact you have a clear lease clause and there are no waiver issues, serve a Three-Day Notice to Perform Conditions or Quit as soon as possible. An owner may be deemed to have waived a lease covenant if the offensive conduct is ignored even for a short amount of time. Acceptance of rent, when knowing there is a lease violation, can almost certainly cause you problems down the road.
I also recommend consulting with an attorney before you serve a Three-Day Notice to Perform Conditions or Quit. This type of notice must be perfectly drafted and filed with the Rent Board. For instance, a tenant should be told what lease covenant has been breached and what steps are necessary to cure the breach. In addition, I like to inform the offending tenants when, how and where they can communicate to the owner that the breach has been cured. This will prevent the argument in court that the tenant did cure the breach in a timely fashion, but the owner went ahead and filed the eviction paperwork anyway. Also, the notice should be drafted in a way that explicitly informs the tenant regarding what offensive conduct has occurred, what lease rule was consequently violated and how to prevent termination of the tenancy within the three-day period. Remember, a jury may be looking at the notice, so you want to appear as reasonable as possible.
– David Wasserman
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. Steven C. Williams is with Wiegel & Fried, 415-552-8230. Jeffery P. Woo is with Woo & Associates, 415-705-6470. David Wasserman is with Wasserman & Taxman, 415-567-9600. Copyright © 2004 by the San Francisco Apartment Magazine. All Rights Reserved.