Legal Corner Q & A

by Various Authors

Q.Is there a legal definition of habitual late payment of rent?
A. The answer, unfortunately, is no. Neither state nor local law tells owners what constitutes habitual late payment of rent. Nevertheless, the San Francisco Rent Ordinance does allow an owner to terminate a tenancy if the tenant habitually pays the rent late. The problem is that there are no clear guidelines as to what constitutes habitual late payment of rent. As such, landlords must rely on common sense. Habitual in this context means repeated and consistent.

The current PPMA Residential Tenancy Agreement states as follows: “Owner and Tenant agree that Tenant paying rent five days after the Due Date on three separate occasions within any twelve month period shall constitute habitual late payment of rent and may be considered a just cause for eviction.” Therefore, if you use the PPMA Lease, a tenant who pays rent late three times in a twelve month period may be eligible for eviction. Some other well-drafted leases contain similar provisions, but the vast majority of rental agreements in use do not define habitual late payment of rent.

Regardless of whether “habitual late payment” is defined by the written rental agreement, most practitioners will require the following before pursuing this type of eviction. First, the lease must specify when rent is due (e.g., the first of each month). Second, rent should be received late at least three times—and probably more—during the preceding twelve-month period. Third, the owner must have documented each occurrence of late payment and have formally objected in writing on each occasion that rent was received late, either by way of letters and/or service of Three-Day Notices to Pay Rent or Quit. Fourth, there should be one final cease-and-desist letter telling the tenant that if rent is received late one more time, the owner will seek to terminate the tenancy. Yet even if these criteria are met, owners who failed to object in past years but later began to demand timely rent, would probably have waived their right to receive rent by the due date.

So in order to even contemplate an eviction for habitual late payment, the owner must be able to prove that the lease agreement clearly defines when rent is due and when it is late, and that this requirement was never waived by the landlord, meaning that neither the current landlord, previous owner, nor past or present property managers ever acquiesced to late payments or took any action or inaction inconsistent with the lease’s stated due date. While this may sound simple enough, a tenant who is paying low rent may be able to convince the court that management never objected to the late payments until the tenant’s rent fell below the current fair market value. The landlord could then lose the eviction.

Therefore, good landlords will object in writing to every late payment. The best form of property management is to issue a nonpayment of rent notice if rent is not received when due. Once the file reflects that the tenant has repeatedly and consistently paid the rent late, and the owner has emphatically warned the tenant that further late payments may forfeit the tenancy, an eviction may be warranted. Yet absent a clearly drafted lease and unwavering conduct by the owner, this is not a good way to terminate the landlord-tenant relationship.
– David Wasserman

Q. How do you force a tenant to comply with a lease provision that requires the tenant carpet 80% of the floor?

A. In San Francisco, there are many multiple level residential buildings that are built with hardwood floors. It is not too uncommon for a landlord to require the tenant to place area carpets over a portion of the hardwood floor in the rental unit. This not only preserves the hardwood floors, but it reduces the amount of noise that may carry into surrounding rental units.

After the tenant moves into a rental unit, the landlord should ensure that the tenant is carpeting the floor in compliance with the provisions of the written rental agreement. If the landlord discovers that the tenant is not complying with this requirement, then the landlord should immediately send the tenant a written letter reciting the applicable provision of the rental agreement and requesting that the tenant immediately comply with it. If applicable, the letter should also point out that the failure to carpet is (or may be) damaging the hardwood floors and/or is (or may be) disturbing other tenants in the building.

If the tenant refuses to carpet the rental unit in compliance with the written rental agreement, then the landlord may have grounds to terminate the tenancy based on a breach of that agreement. The San Francisco Rent Ordinance requires the landlord to first give the tenant in a rent-controlled unit an opportunity to cure any breaches of the rental agreement. Accordingly, when a tenant breaches a rental agreement, the landlord should give the tenant written notice of the breach and give the tenant an opportunity to cure the breach. This would include a breach of a provision requiring a tenant to carpet 80% of the floor.

The written notice to the tenant should sufficiently describe the breach, describe how it can be cured, and give the tenant three days to cure it or to vacate the premises. The tenant must cure the breach or vacate the premises within the notice period. If the tenant does neither, then the tenancy is terminated, and the landlord may commence an eviction action against the tenant in the Superior Court.
In any event, whenever a landlord discovers that the tenant has breached the rental agreement, the landlord should respond quickly to enforce the landlord’s rights under the rental agreement. Failure to do so might result in a waiver by the landlord of the right to enforce those terms of the rental agreement.
– Steven C. Williams

Q. What steps does the Sheriff’s department take in securing a rental unit after a successful unlawful detainer action?

A. Generally, the most important goal in an unlawful detainer action is securing possession of the premises. Monetary matters are secondary because as long as the tenant continues to hold the premises, and is not paying rent, the owner’s damage is ongoing. Therefore, to speed the eviction process, the owner is entitled to apply to the court for a judgment for restitution (possession) only in a default situation. Of course, if there’s a trial, the judgment for possession will come along with the monetary judgment as well.

After the judgment has been obtained, a Writ of Possession must be prepared and presented to the clerk of the court for the clerk to execute verifying the date of the entry of judgment. A small fee ($7) is required. (The court requires that a Declaration of Daily Rental Value be filed at that time.) This Writ is then taken to the Office of the San Francisco Sheriff for execution. The Sheriff charges its own fee ($125) and requires that certain “Sheriff’s Instructions” be submitted to the Sheriff. These instructions indicate any type of special circumstances at the premises, such as children, elderly, or a mentally incompetent or violent tenant. Unfortunately, in San Francisco the Sheriff posts eviction notices infrequently, and evictions are only done on Wednesdays. Thus, even though an unlawful detainer is a summary procedure and in many other counties the Sheriff goes out much quicker after the judgment is entered, in San Francisco it is generally at least two to three weeks before the Sheriff will actually perform the eviction. It is not uncommon for a tenant to give notice two days before the eviction, indicating that he/she will go to court one day prior in order to secure a temporary stay of the eviction—based on hardship—which the court frequently grants on the condition that the tenant pay into court one week’s worth of rent for a one week’s stay. The Sheriff will then automatically reschedule the eviction for the following Wednesday. There is no legal rule that requires the tenant is given only one week; and a tenant could, under a proper showing, get more time than that, but the tenant would most likely have to reapply a second time and might have more difficulty convincing the court. Again, the stay is not issued without the tenant depositing at least one week’s worth of rent with the court. This money will be forwarded some time later to the landlord.

If the landlord has secured a judgment for restitution only in a default situation in order to speed up the process, the landlord is then authorized to go back into court to obtain an amended judgment for any back due rent and/or holdover damages that are owed.
– Saul Ferster