legal corner Q&A

By Various Authors

Q. My elevator needs servicing and will not be accessible for two weeks. My top-floor tenants are wheelchair bound. How should I address the situation with them?

A. This is potentially a very serious situation. Normally, the withdrawal of the elevator service for two weeks would entitle nondisabled tenants to seek a rent reduction for a decrease in housing services. The owner should, in that instance, allow a reasonable rental rebate for the inconvenience so as to avoid a San Francisco Rent Board hearing for a decrease in housing services without a corresponding decrease in rent.

However, in this case, the tenants are wheelchair bound, so the withdrawal of the elevator effectively precludes them from meaningful access to their unit. Therefore, the landlord must meet with the tenants well before the anticipated date of closing down the elevator and inquire as to how the tenants wish to be accommodated. Most certainly, the tenants will need to be provided with alternative housing. This substitute lodging could include an empty unit on the first floor of the landlord’s building, but in all likelihood would entail a hotel with full disability access. The owner must give serious thought to ensuring that the tenants are placed into acceptable lodging during the two-week period, and the costs associated with the replacement housing should be borne by the owner.

Failure to make this offer of replacement housing could subject the owner to a claim of constructive and wrongful eviction. If the tenants cannot access their unit because the elevator service has been terminated, they have been deprived of the use of their rental unit. Even though the owner may be acting properly by servicing the elevator, a wheelchair-bound tenant has no realistic ability to enter and exit the dwelling during this work. Thus, the landlord is obligated, both legally and ethically, to provide reasonable accommodations.

Paying for the substitute hotel room is a matter of courtesy and would probably be ordered if the tenants sued the landlord. The disabled tenants are able to live in a multistory building because of the elevator. Without this service for an extended period of time, they have no ability to use their home. Thus, they will be greatly inconvenienced by having to relocate for two weeks, and a good landlord will minimize this stress and hardship by paying for a clean and comfortable place to live until the elevator is running again.

-David Wasserman

Q. My tenant says he is having some financial difficulties and is unable to pay the rent this month. He has asked me to give him some time to pay and promises to pay by next month. How much can it hurt me if I honor his request?

A. Unfortunately, the adage, “No good deed goes unpunished” is the reality in San Francisco. The legal process for regaining possession of a nonpaying tenant’s unit is sufficiently complex, time consuming and expensive that a break given when a problem first arises can come back to bite tenfold. Frequently, landlords wait several months before serving a Three-Day Notice to Pay Rent or Quit, and then suddenly panic, and shift into “hurry up” mode to get the tenant out. Unfortunately, time squandered at the beginning is usually time forever lost.

If the tenant fails to pay or vacate within three days after receiving the notice, the landlord’s next step is an unlawful detainer lawsuit in San Francisco Superior Court. The lawsuit must be served on the tenant; but tenants are frequently cagey enough to delay the process by hiding, requiring the landlord to seek a court order authorizing service of summons and complaint by posting and mailing. This process of getting the order takes approximately one to two weeks, and service is not deemed completed until 10 days after posting and mailing occurs. The tenant then has an additional 5 days to respond. Once the tenant files an “answer,” the matter may be set for trial within 20 days. The week before the trial, there will be a mandatory settlement conference, where most cases resolve.

Although the legal “right” may be on your side, the unfortunate fact is that the tenant is holding your property hostage for ransom. Just like a kidnapper, he can squeeze concessions from you because he has power—the power to make you go to trial and spend money to get rid of him. If you win, you wind up with a monetary judgment against a deadbeat from whom there’s virtually no chance of collecting, and it may take an additional two to three weeks before the sheriff will evict. Therefore, at the settlement conference, the landlord frequently agrees to give up some or all of the outstanding rent in exchange for the tenant’s agreement to voluntarily vacate, in order to avoid the expense and hassle of trial. Even where the tenant agrees to vacate voluntarily, however, if he breaks his agreement, there may be long delays in the procedures followed by court and/or sheriff, which can lead to several additional weeks passing before a recalcitrant tenant is finally ousted from your digs.

The bottom line is clear: the only place in this entire process that you can actually control the amount of time you will go without rent is at the very beginning. If you fritter that time away, the loss will be of your own creation.

-Saul M. Ferster

Q. Can a landlord evict a tenant who is operating a law office in the apartment, but does not have a city business permit?

A. First, it is generally recommended that the landlord not allow commercial use, such as running a law office, in a residential apartment, whether or not the tenant has a business permit. Business use of a residential unit usually violates the allowable use for the property as determined by the San Francisco Planning Department, and it creates potential liability/insurance issues for the landlord.

There may be a couple of different ways to evict a tenant, or at least to force the tenant to cease unauthorized activity, where the tenant is conducting unauthorized commercial use of their unit. The place to start is the rental agreement with the tenant. A well-prepared rental agreement will include a provision that restricts the allowable use of the unit to “residential only.” If that is the case, the landlord can enforce that provision just as the landlord would enforce any other provision, that is, by serving a Three-Day Notice to Perform Covenant or Quit. If the tenant does not cease the commercial use per this notice, the landlord can then terminate the tenancy and evict the tenant. It should be noted that the tenant may argue a waiver defense if the landlord has allowed the activity (with knowledge) for a prolonged period of time.

Alternatively, the rental agreement may have a provision that prohibits any use that violates the law, including local ordinances. This could be used as an additional or alternative basis for a Three-Day Notice to Perform Covenant or Quit.

If there is no provision in the lease prohibiting commercial use of the apartment, the San Francisco Rent Ordinance does still allow a landlord to evict a tenant who uses the unit “for an illegal purpose.” However, it is not a foregone conclusion that a tenant who runs a law office in a residential apartment is using the apartment for an illegal purpose. The “illegal-purpose” cause for eviction is more commonly used where the tenant is engaged in drug use/dealing activities in the unit—conduct that is in and of itself illegal. Running a law firm is not necessarily an illegal activity, and, the tenant could argue, is therefore not contemplated by the Rent Ordinance as a ground for eviction. The landlord’s argument would be that running a law firm in a residential unit violates zoning laws (and in this case, running a law firm without a business permit would violate city business/tax ordinances) and therefore constitutes an illegal purpose.

-Fredrik Emilson

Q. I suspect that my tenant is renting out the parking space that is included with his unit to someone outside the building. Is he allowed to do this? If not, is it just cause to sever the parking spot from the unit? Is it just cause to evict?

A. The answer depends upon whether you have a written tenancy agreement that limits the tenant’s right to sublet. If the agreement prohibits subletting or prohibits subletting without your consent, then you may simply sever the parking spot from the tenancy and reduce the rent by a corresponding amount.

San Francisco Administrative Code §37.2(r) provides: “Garage facilities, parking facilities, driveways, storage spaces, laundry rooms, decks, patios, or gardens on the same lot, or kitchen facilities or lobbies in single room occupancy (SRO) hotels, supplied in connection with the use or occupancy of a unit, may not be severed from the tenancy by the landlord without just cause as required by Section 37.9(a). Any severance, reduction or removal permitted under this Section 37.2(r) shall be offset by a corresponding reduction in rent. Either a landlord or a tenant may file a petition with the Rent Board to determine the amount of the rent reduction.” The just-cause requirement for severing a tenancy service was imposed by an amendment passed by the Board of Supervisors effective August 8, 2006 (the “Mirkarimi Amendment”).

If the tenant has sublet the parking spot without your consent in violation of the rental agreement, then you would have just cause under the “Mirkarimi Amendment” to sever the parking spot from the tenancy pursuant to SFAC §37.9(a)(2), which provides “just cause” for eviction based upon a tenant’s breach of a material covenant of the rental agreement.

The more aggressive approach would be to attempt to terminate the entire lease and evict the tenant based upon the tenant’s breach of the rental agreement by subletting without your consent. Under Code of Civil Procedure §1161 sub. 4, you may terminate the tenancy based upon the tenant’s subletting without consent, in breach of the lease, by serving a Three-Day Notice to Quit, without allowing the tenant any option to cure the breach and remain in possession. This might not be advisable because the tenant could be expected to aggressively defend against your eviction lawsuit by asserting that your dominant motive is other than the purported “just cause” stated in your three-day notice. The tenant could argue that the breach is not a material breach, and that therefore your motive to evict must be simply to decontrol the unit and rerent to new tenants for a higher amount. The tenant might also defend by arguing that, based on SFAC §37.9(a)(2), you must serve a three-day notice that allows an opportunity to cure. In one of our recent cases, the law and motion judge overruled this argument and the landlord was allowed to proceed based upon a three-day notice to quit, without the tenant’s option to cure, because the California Code of Civil Procedure overrides the local SFAC.

If you simply wish to enforce a policy to prohibit subletting of parking spots to nonresidents, serve the tenant with a three-day notice to cure the breach of covenant or quit under CCP §1161 sub. 3. This would require the tenant to compel the subtenant to vacate the parking spot within three days or face eviction from the residence. However, in this instance the tenant could preserve the tenancy by complying with the notice. Thus, your lawsuit would be less susceptible to the tenant’s legal challenges as described above.

If you intend to enforce your lease provision in one of the ways explained above, you should not accept rent after you have positive evidence that the tenant has broken the lease by subletting, or else the tenant would have an argument that you waived the breach. However, my approach would be to attempt to avoid having to argue the issue in court, which would increase your litigation costs even if you prevail on the point.

If you do not have a written lease that limits the tenant’s right to sublet, then you do not have the option to sever or evict based upon a breach of covenant. However, you could still sever the parking spot from the tenancy if you have another just cause under SFAC §37.9(a), for example, for the owner’s own use. However, this is somewhat unclear. The San Francisco Rent Board attempted to create some regulations to clarify the legislation, but failed to do so. Therefore, the ambiguities remain for landlords to attempt to deal with through litigation with tenants.

-Michael C. Hall

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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. Fredrik Emilson is a principal with Cornerstone Law Group and can be reached at 415-357-2099. Michael C. Hall can be reached at 415-512-9865. Copyright © 2007 by SF Apartment Magazine. All rights reserved.