Legal Corner Q&A
By Various Authors
Q. I have been renting an in-law unit to a cousin for a few years. She never signed a rental agreement and recently she has become rowdy and weeks late with her rent. I have tried to talk to her about these problems, but nothing seems to be getting through. Is it possible to evict her if she was never “technically” a tenant?
A. The first problem is that your cousin is “technically” a tenant. A tenant is any person entitled by written or oral agreement to occupy a residential unit to the exclusion of others. It makes no difference that this person is a relative, or that there is no signed written rental agreement. She is a tenant, afforded all of the rights that any other nonrelative tenant would have.
The second problem is that there is no written lease. There is an agreed-upon monthly rent, but trying to prove when rent is due and late may be difficult under these circumstances. When there is no written rental agreement, the lease is oral, and this usually means that the owner is hard pressed to enforce any specific lease covenant against the tenant.
If the tenant is rowdy, you may have grounds under the rent law to evict her. Specifically, a tenancy may be terminated when the tenant is committing a nuisance. “Nuisance” is broadly defined and includes conduct that creates a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building. The general rule is that other tenants should document their complaints and be prepared to testify against the offending tenant. In addition, police reports are also good evidence of nuisance-like conduct. Occasional loud talking or music probably will not support a nuisance claim. However, if her behavior is truly disruptive, you should describe the offenses in writing and provide her with ample opportunity to cease and desist. If the warning letters are ignored, you may be able to end the tenancy with a three-day notice to quit.
In addition, if the unit is “unwarranted,” meaning it was constructed without permits and has no certificate of occupancy, you may be able to withdraw it from housing use and thereby terminate the tenancy. To do so, you need to obtain all plans and permits with the San Francisco Planning Department and San Francisco Department of Building Inspection. Your tenant is then entitled to a termination notice and relocation payments. The amount of relocation is based upon newly passed Proposition H; each tenant receives $4,568.92, plus an additional $3,046 if they are elderly, disabled or have at least one child under the age of 18 years. A 30-day notice is required if the tenant has resided in the unit less than one year; otherwise, for occupancies one year or longer, a 60-day notice must be given. Once removed, the unit can no longer be rented as a separate dwelling and you must perform the demolition work requested in your permit application.
You can also seek to terminate her tenancy for nonpayment of rent, but this route may be problematic for two reasons. First, there is no written lease, so determining when rent is due will depend on the owner’s self-serving testimony versus that of the tenant. Second, if the in-law is unwarranted, you may not be able to demand rent for it, and the fact that it is an illegal dwelling will certainly provide the tenant with a substantial defense to any action for nonpayment of rent.
In sum, treat this person as you would any other tenant. Your mistake was not having her sign a written lease.
–David Wasserman
Q. How do I add a no-smoking addendum to my tenants’ leases? Once I do this, can they file for a reduction of services rent decrease?
A. Assuming that your tenants are month to month, you as the landlord may modify the terms of their tenancies by serving a 30-day notice of change of terms of tenancy, pursuant to California Civil Code Section 827, in the same manner as you would serve a 3-day notice to pay rent or quit. Thus, you can create the no-smoking addendum and serve it as a change of tenancy term, thereby making it a part of the tenants’ rental agreement. Unfortunately, this is another instance where the state giveth and the San Francisco Rent Board taketh away. Under Rent Board Rules and Regulations Section 12.20, with certain limited exceptions, a landlord may not evict a tenant for breach of a unilaterally imposed obligation. Therefore, enforcement could be a problem.
Of course, it may be argued that this change does fit one of the exceptions, that is, a change in terms to protect the health, safety and quiet enjoyment of the occupants of the building. Given all the new information coming out about the dangers of secondhand smoke, it’s quite possible that this exception could be substantiated. However, also given the broad incidence of smoking in our society, and the widespread negative visceral response to government regulation of personal behavior in the home, attempting an eviction because a tenant smokes in his unit based on a unilaterally imposed no-smoking addendum could be a risky business—especially since the conduct is legal. In extreme situations, eviction based on nuisance grounds may be appropriate, that is, smoke drifting into other units and/or common areas and seriously disturbing other tenants.
Assuming, however, that enforcement is not an issue, what is the likelihood of your being faced with a decrease in services petition? That, unfortunately, is quite high. There are efforts afoot for the city to pass a no-smoking measure similar to those recently adopted in other jurisdictions, most notably, Belmont. However, the proposal in San Francisco is not as broad as the Belmont ordinance and would permit people who have already had smoking privileges in their apartments to continue. A check with the Rent Board reveals that the issue of a rent reduction for withdrawal of smoking privileges has not yet come up. There is a significant possibility, however, that if and when it does, a rent reduction could be granted to the tenant who had previously been permitted to smoke in his unit and suddenly cannot. Moreover, given the strength of the smoking addiction, it is understandable that a smoker compelled to discontinue smoking in his unit may suffer a real deprivation. This could become a real hot issue.
–Saul M. Ferster
Q. I did a walkthrough with a tenant who was leaving, and everything looked fine, except for the usual wear and tear. A few days after completing the walkthrough, I discovered some substantial damage to the bathroom sink and bedroom closet doors. Can I take the money to repair the damage out of the security deposit or did I miss my chance?
A. It depends on a few factors. First, did you provide your tenant with written notification of his rights to a pre-move-out inspection pursuant to California Civil Code Section 1950.5(f)? If you did not, you will not be able to deduct anything from the security deposit for the damages.
If you did provide your tenant with notice of his pre-move-out inspection rights, then you must have a pre-move-out inspection no earlier than two weeks prior to the tenant’s surrender of possession of the unit (unless your tenant does not request this inspection). The purpose of the initial inspection is to allow the tenant an opportunity to remedy identified deficiencies in order to avoid deductions from the security deposit. After the initial inspection, which your “walkthrough” may have been, the landlord must give the tenant an itemized statement specifying repairs or cleanings that are proposed to be the basis of any deduction. The tenant then has the opportunity from the initial inspection until surrender to remedy the identified deficiencies. If the tenant does not repair the itemized damage, then you can make a deduction from the security deposit.
It is not clear from your question whether your “walkthrough” was a pre-move-out inspection pursuant to Civil Code 1950.5. If it was and you properly provided your tenant with written notice of his rights and an itemized statement, then whether you can deduct for the later discovered damage to the bathroom sink and bedroom closet depends on (1) whether you failed to identify the damage, (2) whether the damage was hidden by the tenant’s possessions or (3) whether the damage happened after the initial inspection but before surrender.
If you simply failed to identify the damage, then you cannot make the deduction. However, if the tenant’s possessions hid the damage or the damage happened after the initial inspection, then you have the right to deduct from the security deposit. Obviously, it is in the landlord’s best interest to photograph or videotape each room in the unit during the pre-move-out inspection and then again during the post-move-out inspection. Having photographic evidence of the pre- and post-move-out conditions of the unit will avoid any false claims by the tenant about the condition at the unit.
–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 SF 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 and can be reached at 415-567-9600. Saul M. Ferster can be reached at 415-863-2678. Jerod Hendrickson and Lawrence M. Scancarelli can be reached at 415-398-1644. Copyright © 2007 by SF Apartment Magazine. All rights reserved.