Legal Corner Q & A
by Various Authors
Q. I have a pair of flats, one of which is occupied by a retired woman who is always getting involved in the business of the other tenants. Her constant interference has caused many tenants to move out as soon as their leases are up. What can I do? Is it possible for me to apply for a restraining order on behalf of my tenants?
A. A court may issue a restraining order in favor of your tenants based upon your tenants’ petition establishing that the elderly neighbor is harassing them. According to Code of Civil Procedure Section 527.6, harassment is defined as “unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.”
Thus, your tenants would be required to show the court that the neighbor has engaged in a course of conduct that has caused them to suffer emotional distress and that they have actually suffered such distress. If the neighbor’s conduct has been so disturbing that it causes your other tenants to vacate, the conduct may rise to the level that a court would enjoin.
A restraining order may be issued based upon a preliminary showing made to the court with no notice, or on very short notice, to the neighbor. The California Judicial Council provides forms for the petition for restraining orders that may be completed to fit the facts of the particular case. The San Francisco Superior Court offers free assistance to litigants seeking restraining orders at the ACCESS center, located at 400 McAllister St. Restraining orders prohibiting harassment are often issued to petitioners without the
However, the law does not appear to allow you, as the landlord, to seek a restraining order prohibiting harassment on behalf of your tenants. The plaintiff must be the person who has actually suffered emotional distress as a result of harassment.
You may have grounds for a restraining order in your own favor against the busybody if you can clearly establish that tenants have vacated due to her behavior. You could file a lawsuit for damages and injunctive relief based upon the busybody’s interference with your other tenants. An injunction could be ordered if the court is satisfied that you will suffer continuing harm if the tenant’s conduct is not restrained.
Other remedies may be available to you. For example, you may have grounds for eviction if the busybody’s behavior constitutes nuisance. Nuisance is broadly defined as any activity that would obstruct or interfere with the comfortable enjoyment of life or property. The San Francisco Rent Ordinance permits a landlord to evict a tenant who is causing a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building. In a case such as this one, you should thoroughly document the file with correspondence to the busybody tenant and written confirmation from the departing tenants that the busybody caused them to vacate. In order to establish just cause for eviction at the trial, you will probably have to rely upon the testimony of the tenants who vacated and other tenants currently in possession. Police reports are also helpful, but may not be admissible at trial under the hearsay rule.
—Michael C. Hall
Q. How do I evict a tenant who has been living in an unwarranted unit for 20 years?
A. Assuming that the landlord does not wish to keep renting the unwarranted (“illegal”) unit, San Francisco Rent Ordinance Section 37.9(a)(10) does provide just cause for eviction where the landlord wishes to “demolish or otherwise permanently remove the rental unit from housing use.”
This just cause (referred to here as an “a10” eviction) is commonly used to terminate tenancies in illegal in-law units. It should be noted, however, that to use this type of an eviction method, the landlord must intend to permanently remove the rental unit from housing use. Thus, using an a10 eviction is not advisable if the landlord has any plans to rerent the illegal unit; renting the illegal unit to a new tenant after having done an a10 eviction will likely subject the landlord to liability for wrongful eviction.
Because the idea is that the illegal unit be removed from housing use, it is strongly recommended that the landlord endeavor to remove the kitchen and bathroom from the illegal unit once the tenant is out. The landlord should make sure to first obtain a building permit for such removal, even if this is not technically required. This is important because the Rent Ordinance requires that the landlord first obtain any permits involved in demolishing or permanently removing the unit from housing use before serving the termination notice. Also, having the permits to remove the features that tend to make the illegal unit a separate residence underscores the landlord’s good faith intent to permanently remove the illegal unit from housing use. Since the kitchen and bathrooms are generally illegally installed if the unit itself is illegal, obtaining a permit to remove them is usually not a problem and can often be obtained over the counter.
The a10 ground for eviction is often confused with an Ellis Act eviction. There are, however, important distinctions. First, an a10 eviction can be used on a single unit in the building, whereas Ellis Act evictions require that all units be vacated. Second, when doing an a10 eviction, the landlord commits to remove the unit from “housing use” (when doing an Ellis Act eviction the landlord commits to stop using the unit for residential “rental use”). This means that after an a10 eviction, the space can still be rented out, usually as part of a larger unit, as long as it is not rented as a separate unit.
—Fredrik Emilson
Q. A tenant recently told me she feels her rent is too low ($650 a month for a one-bedroom unit). She would like to pay $100 more a month and included that new sum on her most recent rent payment. Should I return the check and ask her for the correct amount instead or just deposit the check as is?
A. Sometimes a tenant’s offer is too good to be true (or enforceable). If the unit is in San Francisco, you should return the check and ask your tenant for the correct amount unless the unit is exempt from the rent restrictions of the Rent Ordinance (for example, rental units with a certificate of occupancy after June 13, 1979, or certain single-family homes where the tenant occupied the unit on or after January 1, 1996). It would be possible to raise the rent for an additional housing service, such as parking, storage, access to a garden, but that should be documented as an addendum to the rental agreement.
Even if the tenant, without coercion or urging, voluntarily requests to pay more rent because she feels she is paying too little, the increased rental amount will not be valid and enforceable. The Rent Ordinance allows rent increases for tenants in occupancy on certain grounds, such as: annual rent increases, banked rent increases, capital improvements, increased operating expenses, increased utilities, excess water use, etc. Each of these grounds has procedural and substantive requirements. Even if your tenant, a competent adult, wants to waive her rights under the Rent Ordinance, her waiver is considered void. So, if the tenant signs an agreement authorizing the increase, and later changes her mind, she will be entitled to have her rent decreased to the original amount, and she can force you to return the excess rent paid during the previous three years. Further, the tenant could use the rent overpayments as leverage in a future dispute, or as a defense in an eviction action for nonpayment of rent. Last, the Rent Ordinance states it shall be unlawful for a landlord to charge any rent which exceeds the limitations of the Rent Ordinance. Any person who increases rents in violation of the Rent Ordinance is guilty of a misdemeanor.
If the unit is exempt from the Rent Ordinance, then you still should return the rent and ask for the correct amount unless the tenant is willing to sign an agreement authorizing you to collect the increased rent at that time. Of course, for a month-to-month tenancy, you could also raise the tenant’s monthly rent with the proper written notice of thirty or sixty days.
—Lawrence M. Scancarelli & Jerod Hendrickson
Q. I rent a one-bedroom apartment to a senior citizen, whose son and daughter-in-law moved in with her a few years ago. They now have an 18-month old son and are expecting another baby soon. Can I evict for overcrowding?
A. Probably not, but it is—to some extent—debatable, not a good thing when contemplating an eviction. The San Francisco Rent Ordinance prohibits a landlord from evicting a tenant for allowing certain relatives to live in a unit, even when there’s a provision in the lease limiting the number of occupants or prohibiting assignment and subletting. The permitted relatives are the tenant’s child, grandchild, parent, grandparent, brother or sister, or the spouses or domestic partners of these relatives, so long as the maximum allowed by the ordinance is not exceeded. The ordinance permits the lesser of 1) two persons in a studio, three persons in a one-bedroom unit, four persons in a two-bedroom unit, six persons in a three-bedroom unit, or eight persons in a four-bedroom unit, and 2) the maximum number of people permitted under other laws or codes.
San Francisco Housing Code Section 401 defines “family” as “one or more persons related or unrelated, living together as a single integrated household in a dwelling unit.” Housing Code Section 503(d) prohibits landlords from refusing to rent to families so long as the total number of persons occupying a room for sleeping purposes does not violate the minimum floor area standards prescribed in Sec. 503(b), which provides that every room used for sleeping purposes shall have no less than 70 square feet of floor area. It also rules that when more than two persons occupy a room used for sleeping purposes, the required floor area shall be increased at the rate of 50 square feet for each occupant in excess of two. Children under the age of six are not counted for these purposes.
Unlike the Housing Code, however, the Rent Ordinance does not specify whether children, regardless of age, are included in the number of “persons” who can occupy the unit. Arguably, since the Ordinance doesn’t say “adult” persons, children are included in the no-more-than-three-persons-in-a-one-bedroom-unit provision. Certainly, a six-foot-tall 17-year-old impacts occupancy as much as any tottering granny. On the other hand, the 18-month-old and the baby would have little impact, and the Housing Code exemption for them would seem reasonable. If I were the tenant’s lawyer, that’s exactly what I’d argue. I’d also argue that regardless of what the Rent Ordinance says, you can’t evict because of the Housing Code provisions. Of course, what happens 15 years from now, when you have three adults and two teenagers occupying the same one-bedroom apartment? How can you then evict for overcrowding when they’ve been living there for 15 years? Maybe this is the best argument against excluding children from “persons” in the ordinance, but how a court might rule is anyone’s guess.
—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. Michael C. Hall can be reached at 415-512-9865. Fredrik Emilson is a principal with Cornerstone Law Group and can be reached at 415-357-2099. Lawrence M. Scancarelli and Jerod Hendrickson can be reached at 415-398-1644. Saul M. Ferster can be reached at 415-863-2678. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.