legal corner q&a

By Various Authors

Q. A tenant had her purse stolen and asked me to replace the lock on the gate to her unit. This is the first request she has made for a lock change, and she has lived in the unit for more than two years. Do I have to replace the lock, and if so, can I pass on the cost to her?

A. You probably should replace the lock promptly. Landlords are responsible for ensuring that their tenants are protected from foreseeable harms, and if the thief has the tenant’s identity and access to her unit, she is in danger of being burglarized or worse. To this end, the California courts have consistently held that residential tenants have the right to personal safety in and around their rental units. Owners must always take reasonable steps to make their buildings safe by providing adequate lighting, sufficient locking devices on unit doors, and appropriate safeguards for entryways and exit areas. This is good public policy, and owners who neglect their duty of care will be held responsible for a tenant’s injury or death caused by crime.

In this case, because the tenant lost her key when her purse was stolen, the landlord could pass the cost of replacing the lock onto her. This passthrough is akin to charging a tenant for the cost of a locksmith’s time when a tenant locks herself out of a unit. The owner should also ascertain whether the locks to the common areas also require changing. If the thief has the purse with the keys, he could gain access into the building and threaten the safety of other tenants. Thus, the common area locks may also need to be changed (with replacement keys passed out to all of the building’s residents), and this expense could also be submitted to the tenant whose key was stolen.

This author recently received a call from one of his tenants, a 92-year-old woman, who lost her key. He replaced the lock that night, and paid for the cost of replacement, but told his tenant that if another change were required she would have to pay. Regardless of how the cost is reimbursed, please change all of the affected locks immediately so as to maintain the safety of your building.

Finally, local law now requires landlords to replace the locks of a unit when the tenancy is terminated. This law was passed last year because the Board of Supervisors found cause to require owners to have new locks for new tenants, as no landlord can know for certain if a departing tenant kept keys or distributed copies to other persons. Although modern locking devices and key systems are expensive, there can be no substitute to proper safety and well-being.

- David Wasserman

Q. We had a big fire in my building about a year ago that required our tenants to relocate. We sent them a notice that the repairs have been completed, and we have been told that they have 30 days to advise us if they intend to move back in. We are thinking about condo-converting this building. If any tenants do want to come back, and we use the Ellis Act on the property while the tenants are not in residence, do we owe them relocation fees?

A. Under Sec. 12.19 of the San Francisco Rent Board’s Rules & Regulations, tenants who vacated because of a fire have an absolute right to return if they so notify the landlord within 30 days after receipt of a mandatory offer from the landlord to reoccupy, which in turn must be made within 30 days of completion of repairs to the unit, and they must reoccupy the unit within 45 days after receiving such offer. They remain, for all intents and purposes, in possession of the unit until this time has run out or they make some affirmative act to relinquish that possession. Therefore, should you use the Ellis Act to vacate the building before the foregoing has occurred, you would owe such tenants relocation fees, as well as all the other benefits that would be due to them as tenants being Ellised, including formal notice and the right to return if the unit is offered again for rent or lease within five years of withdrawal. However, due to recent changes to the San Francisco Subdivision Code, if you are thinking of condo converting, you are well advised to avoid evictions from multiple units, which would prevent conversion for at least ten years, and the eviction of anyone who is elderly or disabled, which would prevent conversion from ever occurring.

With tenants out of their premises due to the fire, however, you have a golden opportunity to attempt to negotiate voluntary surrender of their units without eviction, thereby avoiding the potential negative effects of evictions on the condo-conversion process. If you do ultimately need to use the Ellis Act, you can initiate that process before the tenants actually resume physical possession by service of the appropriate notices, and making the required filings with the Rent Board and initial relocation payments to the tenants. Of course, if a tenant wants to move back in while the eviction is pending, you cannot prevent that. However, many would prefer knowing that an eviction will ensue before going through the cost and inconvenience of a temporary relocation to your unit.

If you have already been advised that someone is not returning, you may want to wait until you have gotten written confirmation before engaging in any of the foregoing steps, so you have no further obligation to tenants who have already shown an inclination to give up the unit for their own purposes, without any incentive from you. A payment to a tenant for relocating, either voluntarily or involuntarily, should be something to compensate the tenant for the loss of an asset (your rental unit) and not simply an award of tenancy. As for people who have not contacted you yet one way or the other, it is best to consider them as continuing in possession until the time periods in Regulation 12.19 have run out. Even then, you should be cautious in moving forward, because you may find that the deadlines set forth in the regulation are not being strictly applied for some reason based on the unique circumstances of the case.

- Saul M. Ferster

Q. My tenant screams at me over the littlest things. After many months of this, I told her that if she continues to talk to me like that, I would hang up the phone. The tenant says she will claim harassment if I hang up. Does she have a case for harassment? If so, what can I do legally to modify her behavior?

A. To the contrary, I think that you are the one who has a case for harassment against your tenant. In this situation, it might be best to race to the courthouse in order to file your request for a temporary restraining order (TRO) before your tenant beats you to it. A TRO can be very effective in controlling behavior, and, in my experience, there is an advantage in being the first to file. The TRO will compel your tenant to stay away from you, to stop harassing you over the telephone and to limit her communications to writing. The court may impose terms to govern your access to the tenant’s unit for maintenance and repairs. If she violates the TRO, the police may arrest her and she will face additional court sanctions.

You can ask an attorney to help you, or you may be able to do all the work by yourself or with the assistance of a courthouse legal assistance center called ACCESS. You can visit the ACCESS center online at: sfgov.org/courts. The California Judicial Council publishes all the legal forms that you need to file in order to obtain a TRO (you can see the forms and basic instructions online).

Your application for a TRO will be granted if you provide a detailed factual declaration sufficient to inform the court of the need for the restraining order and to enable the court to fashion the terms of the order so that you are protected without unduly restricting the tenant’s rights. If you can prove that she phones you repeatedly and/or verbally harasses you without provocation or cause, the court should be persuaded to issue the TRO. Your application should include as much information as you can provide, including dates, times and durations of phone calls, and a description of the communications that you found abusive or harassing. An attorney can help you prepare the application. If you make a sufficient preliminary showing, the court will issue the TRO immediately and, after it has been personally served upon the tenant, it remains in effect until a court hearing is held.

At the hearing, based on the evidence, the court will either make the TRO permanent or dissolve it. You will have to testify at the hearing, and you may be represented by an attorney who will be able to assert appropriate objections during any cross-examination by the tenant. The tenant will also have an opportunity to testify and may be cross-examined.

- Michael C. Hall

Q. I am renting out my condo in a new high-rise building. My tenant says that cigarette smoke from the neighboring unit is coming into his unit. What should I do? Our HOA CC&Rs say nothing about smoking.

A. It would be an uphill battle, at this time. We assume that there is nothing in the condo rules, which are authorized in the CC&Rs, on either smoking in the units or on patios or decks. Typically, the CC&Rs will include a general “nuisance” provision, stating that no one will commit any noxious or offensive behavior that unreasonably interferes with a neighbor’s rights.

While secondhand smoke is recognized as harmful and a carcinogen, even by the tobacco companies (after 30 years of litigation, sworn testimony and denials), there is no state statute or appellate authority that prevents an owner or occupant/tenant from smoking in his own house or unit. But, there have been numerous proposals, statewide and locally, to change that, and it’s going to happen soon.

The landlord’s duties as a condo unit owner are different than if you owned the entire building and had a right to (theoretically, in San Francisco) control the other units and common areas. The neighbor, as an owner of a condo unit, has the right to occupy the unit subject to the condo CC&Rs and rules, and state and local law. Common areas are controlled and managed by the condo association.

Be proactive. You should investigate how the smoke is making its way to your unit. Is it through a window, or perhaps a ventilation system that is within the common area? Are there any steps that you can take, at a reasonable cost, to mitigate the problem within your unit itself? You can also make a formal complaint with management and the association. You may also find other owners who agree with you and try to amend the CC&Rs to restrict smoking. Because of your limited right of control over the common areas and other units, it is unlikely that you would be required to do anything else to solve the problem.

If the smoking is heavy, and particularly if it occurs on decks and patios, it could be argued that it constitutes a nuisance. Have the tenant document, through a log, the frequency of smoking and the severity of his exposure. It would strengthen your position if the tenant has young children or a health condition, such as asthma, which is exacerbated by the smoking. The association would probably attempt to resolve the matter informally and through alternative dispute resolution. Another argument would be that the common-area ventilation system is the problem, and the association should correct it; this would be a difficult argument, as it may be very costly, and the board of an association has pretty broad discretion in making decisions in this area.

- Lawrence M. Scancarelli
and Jerod Hendrickson

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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. Michael C. Hall can be reached at 415-512-9865. Lawrence M. Scancarelli and Jerod Hendrickson can be reached at 415-398-1644. Copyright © 2008 by SF Apartment Magazine. All rights reserved.