Legal Corner Q & A
by Various Authors
Q. A current tenant (of only six months) now wants to add her adult daughter to the lease. Should I create a new lease, and if so would it begin now or six months ago?
A. San Francisco Rent Ordinance Section 37.9(a)(2)(B) prohibits a landlord from evicting a tenant for moving the tenant's child (adult or otherwise), as well as other relations, into the unit, provided certain procedural requirements are met and overcrowding, as defined in the ordinance, doesn't result. This prohibition on eviction is substantially different, however, from requiring "addition" of the child to the lease. When you "add" someone to a lease, you make that person a tenant of the landlord, possibly conferring "original tenant" rights. Even though the mother's tenancy is relatively new, and presumably at market rent, should she move or pass away, you may want the ability to raise the daughter's rent.
Therefore, I would suggest that rather than adding the daughter to the lease or creating a new lease, you instead serve the daughter with a Section 6.14 Notice, preserving your right to a rent increase when the mother vacates. While the daughter lives in the unit, she must abide by all the lease provisions, except payment of rent, or both she and her mother could be evicted. However, if you want her to affirm compliance with the conduct requirements of the lease, you may require a sublease agreement pursuant to which she agrees that she is her mother's tenant, and to abide by the terms of the lease other than the payment of the rent, which should come only from the mother. She should also agree to accept and acknowledge receipt of the 6.14 Notice. The sublease might further provide that if the mother vacates, the daughter will make a new agreement with you on substantially the same terms as her mother (or in the form you are then using), with the rent to be established at market rate. By making her a sublessee, you preserve your right to a later rent increase under both Section 6.14 and the state Costa-Hawkins Rental Housing Act.
Of course, you could take a more aggressive stance and refuse in writing to approve the daughter at all, indicating that you are refraining from evicting only under compulsion of the ordinance, thus preserving your right to evict the daughter as an unauthorized subtenant at the end of her mother's tenancy. You should serve a Section 6.14 Notice as well.
Finally, if you are not concerned with maximizing your rights against her, you could add the daughter's name to the lease (no need to make a new one), specify in it that she is a "subsequent occupant" as defined by the ordinance, and simultaneously (in no event more than 60 days after her entry to the unit) serve her with a Section 6.14 Notice, still preserving your right to a rent increase when her mother vacates. To avoid the assertion that she has become an original tenant, don't create a new lease beginning at the point the daughter enters.
—Saul M. Ferster
Q. Under San Francisco's Owner Move-In Law, an owner can evict a protected tenant to move in a relative who is also protected. But can an owner herself—who meet's the city's "protected status"—perform an OMI on a protected tenant?
A. A relative move-in (RMI) eviction may indeed be undertaken against a protected tenant in certain situations. The relative must be 60 years or older (note that a disabled relative does not qualify), and any other tenant-occupied rental unit in the building must also be occupied by a protected tenant. The idea being that the landlord should target units occupied by nonprotected tenants for the RMI eviction, if any are available.
Unfortunately, and somewhat oddly, the rent ordinance does not extend the same "trump" to an owner who is 60 years or older and who wishes to do an owner move-in eviction for him/herself in a building with no nonprotected tenants. An owner who wishes to move into a rental unit cannot seek possession under the OMI provisions of the ordinance against a protected tenant (unless the owner owns only one rental unit in the building, that is, the building is a single-family home, or the rental unit is a condominium, in which case the OMI protections for elderly and disabled tenants do not apply), and the owner must consider other just causes for eviction under the ordinance.
A likely explanation for this seemingly arbitrary discrepancy is that the drafters of Proposition G, the measure that implemented the "protected tenant" concept back in 1998, were aware of the well-settled public policy in this country promoting family unity and favoring families living together. For example, the U.S. Supreme Court stated in Moore v. City of Cleveland that "Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this nation's history and tradition."
The drafters of Proposition G probably realized that the measure would therefore be more susceptible to legal challenge if it placed too much of a restriction on family members' ability to live in the same property. An owner moving into a rental unit after an OMI eviction does not necessarily result in the owner's family members living closer together. An RMI eviction, on the other hand, which is only allowed if the owner also resides in the building, does bring family members together in the same property. This would explain why Proposition G limits OMI evictions to one per building, while there is no limit on RMI evictions in a building.
—Fredrik Emilson
Q. I suspect one of my tenants is making alterations to his unit without my knowledge. What is the legal way to enter his apartment to find out?
A. Residential landlords may only enter a tenant's unit for the following reasons: emergencies; showing the unit to new tenants, purchasers, lenders, workers or contractors; to make necessary or agreed-upon repairs, decorations, alterations, or improvements; to supply necessary or agreed-upon services; to perform an initial inspection for security deposit deductions shortly before the tenant vacates; to conduct a waterbed inspection; after the tenant has abandoned or surrendered the unit; pursuant to a court order; or by agreement with the tenant.
Nowhere in this list is there a provision that allows a landlord to unilaterally demand access to determine whether or not a tenant is complying with the lease agreement. Indeed, many landlords and their attorneys have faced the problem of what should be done to ascertain whether or not a tenant has complied with a "Three-Day Notice to Perform Covenant or Quit" that was served for unapproved subletting, unauthorized pet acquisition, or, as is the case here, undesired unit alteration. The courts have even ruled that requiring a tenant to communicate or prove compliance to the owner during the three-day period renders the eviction notice defective.
So where does this leave the landlord who legitimately has an interest in making sure that the unit is not being damaged? Sometimes the tenant will agree to an entry, and as long as there was no coercion or undue pressure, an entry premised upon mutual agreement is lawful. In other circumstances, where the owner has solid evidence that the tenant made damaging alterations, entry can be noticed to make necessary repairs or to show the unit to contractors. Entry in this instance is legitimate only if the landlord makes the repairs. Yet without one of the above enumerated grounds, entry is not permissible. Remember, there is no right to inspect for the sake of ensuring compliance with the lease.
If you do decide to enter the unit, 24 hours' advance notice, in writing, must be given, unless there is an emergency situation. The notice must include the date, approximate time and purpose for entry, which should always be during normal buisness hours. The notice should be personally delivered to the tenant; if the tenant does not answer the door, it can be left with someone of a "suitable age" or, if no one can be found, left on or under the front door. If mailed, the noticed entry cannot occur for at least six days after mailing. Written notice is not required to make repairs provided the landlord and tenant orally agree to the entry, but many practitioners recommend written notice even under this circumstance.
In sum, do not give notice of an entry unless you have at least one of the eight reasons mentioned above. Landlords sometimes use, as a guise, the "annual smoke detector inspection" as a means to gain entry in order to look for something else. If you give notice for entry to check smoke detectors, you had better make sure that you enter all tenants' units every year to perform this service; otherwise, the entry could be deemed a trespass and entitle the tenant to damages for harassment, invasion of privacy and infliction of emotional distress. So, as in many landlord-tenant situations, consult a qualified legal professional before giving notice to enter in order to check on unit alterations.
—David Wasserman
Q. Recently, a medical marijuana dispensary moved into the neighborhood. Do I need to disclose the presence of this club to prospective tenants?
A. The short answer is yes, but let me mention some background on disclosures to residential tenants. There are several specific statutory disclosures, including lead paint (pre-1978 buildings), Megan's Law, pest control, the existence of known or former "ordinance" locations (within a mile) and any application for demolition of the building. Make sure that you are using the updated PPMA Residential Tenancy Agreement, which covers most of these issues. Other disclosures are strongly recommended, for example if the unit does not have a certificate of occupancy, or if there have been noise complaints against another tenant in the building. For several years, there was a state statute that also required that a landlord who knows of any release of an illegal, controlled substance on or beneath the rental unit to disclose it, but marijuana was exempted. (This statute expired at the start of 2006.)
A lease or rental agreement is a contract. Aside from the specific disclosures mentioned, you would have a duty to disclose material (important) facts affecting the value or desirability of the rental unit, particularly those that are known or accessible only to you, the owner. Most of the court decisions in this area involve duties of disclosure for the sale of a residence. Under California's Proposition 210, medical marijuana dispensaries are legal, but possession and distribution of marijuana remains a federal offense. In late 2005, San Francisco passed a law allowing most of the then-existing dispensaries, but imposing permits, licensing and other requirements. (For example, a new facility has to be at least 1,000 feet from schools or recreation buildings and is not allowed in residential neighborhoods.) The dispensary may well be a neighborhood nuisance or not in compliance with the new law. Is the rental unit downwind from the clinic? Is anyone smoking or loitering outside the clinic? Any neighborhood complaints?
A good rule is that if you have to ask the question whether to disclose, it is best to disclose it, even if you are not aware of any specific neighborhood-nuisance-type conditions. If the club's location was not disclosed, and there were problems, the tenant could use this to try to get out of the lease, claiming fraud or mistake, or make other claims against the owner.
—Jerod Hendrickson & Lawrence M. Scancarelli
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. Saul M. Ferster can be reached at 415-863-2678. Fredrik Emilson is a principal with Cornerstone Law Group and can be reached at fred@cornerlaw.com or 415-357-2099. David Wasserman is with Wasserman & Stern, 415-567-8230. Jerod Hendrickson and Lawrence M. Scancarelli can be reached at 415-398-1644. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.