Legal Corner Q & A
by Various Authors
Q. While negotiating a lease recently, I found it easier to speak Spanish to the prospective tenant. When we sat down to sign the lease, I used the PPMA Residential Tenancy Agreement sold by the SFAA. Is there anything wrong with this practice?
A. Yes. You have violated Civil Code Section 1632. This law, on the books since 1976, was recently expanded to provide protection for Californians who speak, as a primary language, Spanish, Chinese, Tagalog, Vietnamese and Korean. The legislation requires that any person engaged in a trade or business, such as a landlord, who negotiates the terms of a contract or agreement primarily in Spanish, Chinese, Tagalog, Vietnamese or Korean, orally or in writing, must, before the contract is signed, deliver to the other party a full translation of the agreement, including a translation of every term and condition of that agreement.
A contract or agreement subject to this law is defined as any “lease, sublease, rental contract or agreement, or other term of tenancy contract or agreement, for a period of longer than one month,” for any residential rental unit. The translation requirement is waived if the tenant brings an interpreter to the negotiations.
This law was enacted in response to perceived abuses by car dealers. Indeed, many Spanish-speaking customers were deceived when they went to purchase or lease a vehicle, for the sale had been based on conditions much different than those actually stated in the written contract that they had signed.
Today, landlords must be extremely careful about the ramifications of this law. A violation allows the tenant to rescind, or cancel, the lease. It may also cause complications during an eviction action. Ironically, landlords who negotiate in a foreign language typically do so in order to help the prospective tenant understand the terms of the tenancy. Yet such a gesture could have adverse ramifications.
Thus, most practitioners advise that all leases should be negotiated in English. Translating the PPMA lease would cost thousands of dollars. Moreover, given the many dialects of these five languages, an owner would be hard pressed to ensure that a proper translation for a particular tenant was even rendered. In addition, lease addendums or modifications, and possibly even eviction notices, would also have to be translated. (For example, a court recently ruled that an automobile loan negotiated in Spanish would require a deficiency and repossession notice to be translated as well.) Therefore, because of this law, do not try to accommodate your non-English-speaking tenants by negotiating the lease in their language. Instead, negotiate in English, and put the burden on the tenants to have the terms translated.
–David Wasserman
Q. A family with an infant recently applied for one of my units. I know I can’t discriminate against people with children, but can’t a real case be made that their baby’s screaming and crying all night long will destroy the “quiet enjoyment” in the units of my other tenants?
A. As you know, with the exception of qualified senior housing, you absolutely cannot discriminate against families with children. But you could have house rules, incorporated into the rental agreement and uniformly enforced, which apply to all tenants and guests. For example, the current PPMA Residential Tenancy Agreement House Rules provide that a tenant shall not make or permit any noise that will disturb other residents, within certain “quiet” hours. However, an earlier version of the PPMA House Rules had stated: “No boisterous play or running in hallways.” Or imagine a rule that states that no one shall play “Ten Little Monkeys Jumping on the Bed.” While these last two examples are neutral on their face, they are improper since they are obviously intended for children.
Sometimes, a landlord is caught between two conflicting duties. If there were a serious, continuous violation of uniform noise rules that seriously interfered with the “quiet enjoyment” rights of another tenant, amounting to a nuisance, you could possibly evict the tenants, even with children. But make sure you have experienced counsel before considering this option.
–Lawrence M. Scancarelli & Jerod Hendrickson
Q. I read that 1-4-unit buildings are exempt from the federal Fair Housing Act. Is this true? If so, are they exempt from state fair-housing laws as well?
A. Be very careful because 1-4-unit buildings are not exempt from the federal Fair Housing Act, though in some instances they do have fewer restrictions under fair housing laws.
Some of the crucial nondiscrimination provisions of the federal Fair Housing Act set out in 42 U.S.C. 3604, Section 804, do not apply to the rental or sale of rooms or units in 1-4-unit buildings where the owner actually occupies one of the rooms or units in the building. This limitation also applies to single-family residences where the owner does not reside, as long as the owner does not own more than three single-family houses at any one time. (This limitation is available for only one sale within any 24-month period, unless you are selling your primary residence.)
For the limitation to apply, in both instances under federal law, the units or rooms must be sold or rented by a private individual owner (not a rental company, property management company or realtor). Further, in both of these situations the lessor/seller cannot put out any notice or advertisement, with respect to the sale or rental of the unit, that indicates any preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin.
California state fair-housing laws (the Fair Employment and Housing Act and the Unruh Act) are even more strict in that they prohibit discrimination in all housing accommodations except for: the rental of a room in an owner-occupied single-family residence to a single boarder (you must not put out any notices or advertisements related to the rental, indicating any preference or discrimination) or the sharing of living spaces in a single-family home advertised for use by one sex.
The general rule is therefore simple: do not discriminate. However, if you are renting out space in your own home, you may select the tenant on the basis of any characteristics, but you should never advertise or post notices regarding the rental (even in your own home) that contain even a hint of discriminatory bias. When in doubt, contact your attorney.
–Sally Morin & James M. Millar
Q. I am morally opposed to couples living together without being married. Am I allowed to rent only to single people or married couples? Am I even allowed to ask a couple if they are married on a rental application?
A. Your moral opposition must not influence your conduct toward prospective tenants. Under the California Fair Employment and Housing Act (FEHA), you may not deny rental accommodations to persons based on marital status; and it is even illegal to make or to cause to be made any written or oral inquiry concerning the sexual orientation or marital status of any person seeking to rent or lease any housing accommodation (Government Code Sec. 12955).
In Smith v. Fair Employment & Housing Commission, a 1996 case, the California Supreme Court ruled that the usual and ordinary meaning of the FEHA’s prohibition against discrimination because of “marital status” prohibited a landlord from refusing to rent to prospective tenants because they were not married. The court further held that requiring the landlord to comply with FEHA would not violate the landlord’s rights under the state or federal constitution clauses guaranteeing the free exercise of religion. Those rights do not relieve a person of the obligation to comply with valid and neutral laws of general applicability on the ground that the laws proscribe, or prescribe, conduct that one’s religion proscribes or prescribes. This is particularly meaningful in the context of the question presented here, because genuine religious scruples and practices enjoy much greater protection under law than does someone’s mere “moral” convictions. The court held that the FEHA protects unmarried couples as well as single, married, widowed and divorced individuals.
More recently, in Koebke v. Bernardo Heights Country Club, a 2005 case involving privileges at a golf club, the California Supreme Court held that discrimination against registered domestic partners in favor of married couples violates the Unruh Act. There is no reason why the same reasoning would not apply to housing.
The bottom line here is that you can discriminate all you want in your private life based on your moral values, or even lack of them, but when you go into the rental business, you voluntarily subject yourself to the full panoply of requirements and values that the greater society has placed on people choosing to engage in the public arena. The fact is, no one put a gun to your head to make you rent your units, and when you choose to do so, you must live by the state’s morality rather than your own. If that is not acceptable, you’d be better off in some other business.
–Saul M. Ferster
The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of 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. David Wasserman is with Wasserman & Stern, 415-567-8230. Lawrence M. Scancarelli & Jerod Hendrickson can be reached at 415-398-1644. Sally Morin & James M. Millar can be reached at 415-981-8100. Saul M. Ferster can be reached at 415-863-2678. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.