Legal corner q&a
by Various Authors
Q. I allowed tenants to put their grills on the roof deck. One of the charcoal grills was not well maintained and now hot ashes can drop on the roof. I am worried about it starting a fire. Under the new Mirkarimi ordinance, can I ask the tenant to remove the old grill without having to reduce his rent? I am still allowing gas grills on the roof.
A. Your question, although stated simply, actually raises a firestorm. It is not clear from the question of what material your roof deck is constructed. The California Fire Code contains very strict guidelines about roofs and grills. It is very likely that the presence of any grill (gas tank or charcoal) on your roof deck is in violation of the Fire Code, unless your roof deck construction meets the Fire Code requirements for noncombustible material. You should contact your local fire inspector for more information.
However, for the purpose of answering the question about the Mirkarimi
ordinance, we will assume that the grill’s presence on the roof deck is permissible per the Fire Code, and that you simply want the tenant to remove it because of the fire hazard.
The Mirkarimi ordinance provides that a landlord may not take away a tenant’s use of garage facilities, parking facilities, driveways, storage areas, laundry rooms, decks, patios or garden access without one of the 15 “just causes” under Rent Ordinance Section 37.9. Section 37.9 (a)(3), commonly known as the “nuisance ground,” specifically states that a just cause arises if a tenant is creating a substantial interference with the comfort, safety, or enjoyment of the landlord or tenants in the building. Clearly, hot ash on the roof is a safety issue.
A 30-day notice changing the terms of the tenancy requiring the removal of the grill could be served to the tenant pursuant to this provision. If the tenant is actively using the grill and the fire risk is high, you may want to concurrently serve a three-day notice, requiring the immediate removal of the barbecue, in order to protect the other tenants and the building without delay.
In your situation, you are not per se removing the tenant’s complete access to the roof deck, but rather simply asking that the grill be removed. Of course, the tenant will argue that his sole purpose in using the roof deck is to barbecue, and thus removal of the grill is tantamount to removing his access to the roof deck. (Some landlord attorneys have actually had tenants assert this position in court.) As such, there is the possibility that the tenant will seek a reduction in his rent if he is not allowed to replace his grill, so at the very least expect a San Francisco Rent Board petition when the grill is gone.
–Marina Franco
Q. I often smell marijuana coming from one of my units. The tenants there signed a “drug-free” addendum and their neighbors have complained about the smell. Is that enough to evict the tenants? If not, what other information would I need?
A. It is very unlikely that you would succeed in litigation to evict tenants based upon the smell of marijuana coming from the unit. Regardless of any “drug-free” addendum to the rental agreement, there is some likelihood that the tenants are using marijuana to assist in treatment for a medical condition. Marijuana is commonly used in medical treatment for numerous conditions, including cancer, HIV and nutritional deficiencies. It is considered very useful to treat nausea resulting from chemotherapy. “Medical marijuana” is dispensed to patients having sufficient medical documentation at numerous clinics located throughout San Francisco.
Moreover, even if the tenants are smoking only for recreational reasons, it is unlikely that you could convince a judge or jury to evict them. There is a high degree of tolerance for marijuana use in San Francisco. For many potential jurors, seeking to evict tenants because they smoke marijuana would be comparable to seeking to evict them because they habitually drink a glass of merlot with dinner.
You might be able to make a case for nuisance if you received many complaints from other tenants about an intolerably high level of marijuana smoke. You should first have a long “paper trail” of written complaints from other tenants and your responsive efforts to resolve the matter without litigation. Keep in mind that you will have to subpoena the complaining neighbors to testify at trial. When it comes to facing a judge and jury, such witnesses might decide that their complaints are not that serious after all. Perhaps the neighbors are not truly contemplating that their complaints could result in their neighbor’s eviction. The mere odor from marijuana is generally not harmful to others.
You could definitely make a case for nuisance if the tenants are selling drugs from the unit, or if they are using the unit as a place to grow marijuana for sale. If you suspect such activities, you should report your suspicions and any supporting evidence to the police. If the police make an arrest, then you would have a strong case. Illegal drugs other than marijuana are viewed much more seriously. For example, I recently obtained summary judgment for eviction without a trial in a case where the tenants had been arrested with only a very small quantity of methamphetamine in their unit.
–Michael C. Hall
Q. My tenant’s boyfriend moved in with her, so I mailed them a 6.14 notice. I requested that they both sign one of the copies and return it to me. So far, they still have not done so. Have I delivered a valid 6.14 notice to them? If not, what do I need to do?
A. To take advantage of a Section 6.14 Notice, which you may need to raise the rent to market or kick the “subsequent occupant” out when the “original occupant” vacates, you must be able to prove that you served the notice on the subsequent occupant, that is, the boyfriend. While helpful, there is no requirement that he sign it. Complete a proof of service: a declaration under penalty of perjury stating how you made service. Attach it to your copy of the notice, placing it in your file for that day eight years hence, when your tenant has vacated and the boyfriend is claiming original tenant status to the Rent Board.
The Rent Board Rules & Regulations, unfortunately, do not prescribe the method for serving a Section 6.14 Notice. Certainly, if you can prove that the boyfriend actually received it, you have good service. But, how to prove it? Perhaps the boyfriend will admit receipt at the Rent Board. Tenants are, after all, invariably honest and tell the truth, right? Mailing the notice certified, with a return receipt doesn’t help if someone else signs the receipt. Given the importance of a Section 6.14 Notice, I recommend using the methods set forth in the California Code of Civil Procedure for service of a three-day notice.
First, and always best, is personal service, i.e. slap that beautiful Section 6.14 Notice right in Mr. Boyfriend’s clammy little palm, and say (to yourself), “Gotcha!”
If he isn’t home, leave his copy with an adult at the premises and mail him a second copy. The post office has a wonderful service called delivery confirmation, where the recipient need not sign (frequently tenants will refuse to do so), but the post office will confirm delivery on its website. You can then print that result from your computer.
Finally, if after about three attempts you cannot locate the boyfriend or any other person of “suitable age or discretion” in the premises, you can “nail and mail.” Affix one copy of the notice to the premises in a conspicuous place and mail a second copy to the boyfriend there.
In all cases, complete and keep a proof of service. Now, no matter when your original tenant realizes what a jerk Mr. Boyfriend is, and leaves for parts distant and unknown, you will be able to deal with him on a market-rent basis, or send him off to plague some other poor landlord.
–Saul M. Ferster
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the 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. Marina Franco is an associate at Wasserman-Stern and can be reached at 415-567-9600. Michael C. Hall can be reached at 415-512-9865. Saul M. Ferster can be reached at 415-863-2678. Copyright © 2007 by SF Apartment Magazine. All rights reserved.