Feature
by Eunice Chang
Insurance defense attorneys become involved when tenants sue landlords. We always see worst-case scenarios: the stairway collapsed, a fire occurred, numerous San Francisco Department of Building Inspection violations were cited, the apartment had mold problems, and/or there were harassment allegations. We know what works and what doesn’t as far as keeping a landlord’s liability to a minimum. Below are several essential tips you can use if you find yourself faced with one of these common landlord-tenant conflicts.
Breach of the Warranty of Habitability
If you fail to comply with the law governing the warranty of habitability, your tenant may claim damages of up to $5,000. There are many ways a tenant can get damages for violations constituting a breach of the warranty of habitability. For example, under California law and the San Francisco Housing Code, the landlord is required to provide a rental unit that has the following features: heat and hot water from 5 a.m. to 11 a.m. and 3 p.m. to 10 p.m.; weatherproofed doors, windows and roofs; plumbing and gas in good working order; an absence of garbage, cockroaches, rats and/or vermin; and adequate electric plugs and phone jacks. If the apartment fails to have any of these features, it is deemed uninhabitable. The tenant may make a report to San Francisco’s Department of Building Inspection. A building inspector may issue a Notice of Violation requiring that a repair be made within 30 days.
This notice is usually posted on the door of the tenant’s apartment and mailed to the owner listed on the deed. If the name and address on the deed is incorrect, by the time the landlord receives a Notice of Violation, several weeks have elapsed; you want to make sure your contact information is updated. Tenants often prevent landlords from making repairs within 30 days so they can collect monetary damages. When you receive the Notice of Violation, immediately post a 24-hour written notice on the tenant’s apartment door advising the date, time and purpose of the intended entry. Schedule an appointment with the building inspector at least 7 days before the 30-day deadline on the notice; that way you will have extra time if the inspector finds additional problems with the apartment.
Repairs
To prevent claims that you failed to make timely repairs, create written repair request procedures. Have the tenant complete a repair request form. When the repair is completed, have the tenant fill out the same repair request, listing the date the problem was repaired and signifying that the repair was made to the tenant’s satisfaction. A receipt signed by licensed repairpersons should specify the date of repair, the type of work, cost of labor and materials, and the unit where these repairs were performed. Landlords who have files of repair receipts completed and signed by the tenant win more lawsuits. Only hire licensed and insured repair personnel. We once represented a licensed contractor who started a fire when working on the roof. Since the contractor was not insured, the landlord was responsible for damages to the roof and a neighbor’s property.
Inspections
Failure to inspect your building can lead to devastating losses. Fires, injuries and deaths occur when a landlord fails to properly inspect apartment units and the building’s common areas. These accidents lead to large damage awards. In one case, a homeless person living in the common area of an apartment building started a fire in the building. Because there was an indication that the homeless person was illegally residing there, the landlord was held liable. You must take precautions; install a lock or gate preventing access or entry into the apartment building. Document your trespassing complaints to the police. Additionally, be sure to conduct regular inspections of the stairways and porches. Several wrongful death cases involved tenants or their guests standing on staircases or porches that collapsed. San Francisco’s moist weather wears and corrodes these structures. Have a contractor inspect stairways, porches and similar structures at least once every three years. Document these inspections and recommendations in writing.
A landlord may inspect an apartment before it is rented. Afterwards, upon request by the tenant to perform repairs in his/her unit, the landlord may visually inspect the portions of the unit where repairs are conducted. When the tenant permits the landlord to enter the unit, the landlord should check and advise the tenant to remove safety or electrical hazards or use the tenant’s failure to comply as a reason for eviction.
Owner Move-Ins
The San Francisco Rent Ordinance allows an owner to evict a tenant if the owner intends to live in the apartment for a minimum of three years. Many landlords evict tenants by stating that they intend to move in, but in reality they live in the apartment for a few months, upgrade it and rent it at market value. If the landlord fails to live in the premises for three years, the ordinance punishes the landlord by giving the tenant treble damages. This means the law punishes the landlord for evicting a tenant with the wrong motive, requiring the landlord to pay more than the damage caused to the tenant.
If you perform an owner move-in eviction, be sure to collect evidence that you intend to reside at the premises for at least three years. Such evidence includes utility bills in the owner’s name and voter registration at the apartment unit’s address. Do not telephone tenants regarding your intentions to eventually move into the unit because this is considered a threat. Only provide written notice of the owner move-in with the assistance of an experienced San Francisco landlord attorney.
24-Hour Written Notice of Entry
A common allegation of harassment arises when a male landlord enters a female tenant’s unit without notice. Most often, the distressed female tenant is in the shower and comes out wrapped in a towel or robe. To avoid any potential embarrassment and confusion, post the 24-hour Notice of Entry on the door indicating the date, time and purpose of the entry. As evidence that you provided a written 24-hour notice, photograph the posted notice and date stamp the photo. Finally, call the tenant directly and advise her that you will enter her unit, specifying the date, time and purpose. Save your phone bill identifying the call to the tenant. This prevents the tenant from arguing she was never provided notice of the entry.
With these tips in hand, you will seriously cut down the amount of landlord-tenant litigation that you are subjected to each year. Plus, on the rare occasions that you are called into court, you will have plentiful documentation to defend your actions.
10 Things Smart Landlords Do
Illustrations by Tom Davis
- Have tenants complete written repair requests.
- Update owners’ names and addresses on apartment deeds.
- Ensure heat and hot water are working.
- Conduct regular inspections of common areas.
- Check and advise tenants to remove electrical or safty hazards.
- Never enter apartments without 24-hours’ written notice.
- Do an owner move-in eviction only if you intend to live in the unit for three years.
- In any eviction, make sure you have evidence to show it was for the proper reason.
- Make repairs immediately upon receipt of Notices of Violation.
- Do not threaten or harass the tenant.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. Eunice Chang is a senior associate at Lewis, Brisbois, Bisgaard & Smith, LPP. She specializes in violations of the San Francisco, Oakland and Berkeley rent ordinances. She can be reached at 415-262-8520. Copyright © 2007 by SF Apartment Magazine. All rights reserved.