legal corner q&a
Rekeying Responsibilities
By Various Authors
Q. I recently heard there is a new requirement that I change the locks on the apartment door every time a tenant moves out. Can I charge incoming tenants for this expense or have them sign a waiver saying that they accept the unchanged locks in lieu of a fee?
A. In 2007, the San Francisco Board of Supervisors passed a law requiring landlords to change certain locks when a tenant vacates. You should not charge incoming tenants for this expense, and you also cannot present a waiver to them that excuses your obligations under this statute.
The San Francisco Administrative Code’s section on residential security deposits (Chapter 49) now states that when a unit is permanently vacated by all tenants, the owner must replace or rekey all door locks that are exclusive to that unit. If two or more locks on any one door are opened by different keys, the landlord is only obligated to rekey/replace one of the locks. The rekey requirement does not apply to any door locks that are provided for use to two or more units. In other words, if a lock is for access to a common area, like the building’s roof deck, garage port or front lobby, it need not be rekeyed or replaced. Thus, this law only applies to the unit itself, or areas in the building under the exclusive control of a single unit, such as a tenant’s storage locker or private garage.
Like most laws affecting residential rental housing, the landlord and tenant cannot enter into an agreement to waive the owner’s compliance. A waiver would undermine public policy, as this legislation was passed because of safety and security concerns. Specifically, the Board of Supervisors determined that rekeying or replacing entrance door locks on any vacated unit would help prevent crime. Even before passage of this ordinance, SFAA and other industry leaders always advised changing door locks when a new tenancy began. To this end, owners should always be taking measures to ensure that all residents in their buildings are safe from preventable dangers. As all of us know, keys are often lost, stolen or given to someone and not returned, and burglars are well aware of the human tendency of forgetting to undertake appropriate safety precautions.
Rekeying is part of rehabilitating and upgrading a unit before you rerent it. Since incoming tenants are not charged for the new carpet and the fresh paint, they should also not bear the costs of the lock change. As landlords in California are free to set rent at the inception of a tenancy, there is no reason to pass the lock cost along to the incoming occupant. Moreover, you cannot deduct this expense from the departing tenant’s security deposit. Rather, the legislation only mandates what good property owners and managers have been doing for years; a new tenancy means a new lock, which in the end makes for a safer home.
- David Wasserman
Q. A mother and her son moved into my unit when the son was a child. Both of their names are on the rental agreement. Recently, the mother told me she was moving out, but the son, now an adult, wants to stay on with a friend. Am I obligated to rent to them under the conditions of the old lease agreement, or can I have them apply as new tenants paying market rent?
A. You are obligated to continue to rent to the son under the conditions of the old lease agreement, now month to month, and are not entitled to have him apply as a new tenant. Your question indicates that he was listed on the rental agreement when he and his mother first moved in. While the son was a child at the time, he has since become an adult and has continued to live in the premises. The San Francisco Rent Ordinance defines a tenant as a person entitled by written or oral agreement, subtenancy approved by the landlord, or by sufferance (the landlord has simply tolerated his presence), to occupy a residential dwelling to the exclusion of others. While he is not a subtenant, the son certainly meets the first and third criteria for tenancy. Of course, you can ask him at this time to confirm the terms of that tenancy by signing onto the rental agreement made originally with the mother. He is not the same as a new occupant with whom you can make an entirely new agreement, and the Rent Board would not recognize him as such.
The right to raise the rent applies only to a lawful subtenant when the original tenant vacates, under the Costa Hawkins Rental Housing Act and Rent Board Rules & Regulations Sec. 6.14, or to a co-occupant, for example, someone who occupied after the original occupant, has a rental agreement directly with the owner, and was served a Section 6.14 Notice. These circumstances don’t apply. Of course, logic would say that if the son was a minor when he first occupied, and therefore not capable of contracting, then he was not a tenant until he reached the age of majority, and if you serve a Section 6.14 Notice within 60 days after his eighteenth birthday, you should be able to raise the rent. As appealing as this argument is, and as rational as it seems, I’m afraid that the Rent Board just ain’t gonna buy it.
Moreover, because the Rent Ordinance permits a tenant to replace an existing tenant on a one-to-one basis, one time per year, so long as an original tenant remains, the son does have the right to replace the mother with a new roommate. However, you have the right to, and should, serve the new roommate with a 6.14 Notice so that if the son moves out at some point in the future, the roommate will not obtain original tenant status, and then can either be required to vacate the premises or to pay market rent.
- Saul M. Ferster
Q. I just bought a building with several long-term tenants who never had to give a security deposit. Can I require a deposit at this point? If so, is there a maximum that the deposit can be?
A. Assuming that your new building is under rent control, then you may request that your tenants deposit security, but there is no effective manner under the law to require them to do so.
You may change the terms of a month-to-month rental agreement by serving the tenant with a 30-day written notice pursuant to California Civil Code Section 827. But any such change of terms that you would seek to impose without the tenants’ consent is made unenforceable by San Francisco Rent Board Rules and Regulations Section 12.20—unless the change is either a lawful rent increase, required by law, or in order to protect the health, safety, or quiet enjoyment of occupants or neighbors.
Rule 12.20 was enacted by the Rent Board after some tenants faced eviction for breaking a covenant of their lease that the landlord had changed at some point after the inception of the tenancy. The Rent Board perceived that some landlords were attempting to create pretexts to evict below-market tenants.
On the other hand, any modification of terms that is mutually agreed upon by the landlord and tenant—and is otherwise lawful—would be legally enforceable under Rule 12.20.
You could have a discussion with your new tenants to introduce yourself and to discuss your management practices. During the discussion, you could introduce your preferred form of rental agreement and ask them to pay a security deposit. Their voluntary agreement to do so would be enforceable.
- Michael C. Hall
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. Copyright © 2008 by SF Apartment Magazine. All rights reserved.