legalQ&A
What is “Reasonable”?
By Various Authors
Q. Tenants in the neighboring building are disturbing the quiet enjoyment of my tenants by being drunk and disorderly almost every night. The owner of the building keeps telling me that she will take care of it, but so far there have been no results. What should I do?
A. This is a common problem in high-density housing environments like San Francisco. Unlike a situation where one owner has control over both the offending and the adversely affected units, in this instance you must address complaints emanating from a source outside of your apartment building.
The law allows both the disturbed tenants and you, as the neighboring owner, to file a claim, called a nuisance lawsuit, against the landlord who will not control the drunk and disorderly tenants next door. The term “nuisance” is broadly defined to mean behavior or conduct that impedes another person’s “quiet use and enjoyment” of their property. Common nuisance claims include loud noises, strong odors, and/or dangerous activities coming from another property. In this scenario, the neighboring landlord is allowing the building dwellers to maintain an ongoing nuisance in so far as the drunk and disorderly conduct each night seriously disturbs the rest and relaxation of other surrounding occupants.
The first step is to ensure that you have at least two or three letters from you to the other owner demanding that the nuisance be abated, or stopped. Include correspondence directly from your tenants describing their ongoing angst. Like all legal actions, you want to show the court that every reasonable measure was utilized to resolve the dispute prior to litigation. While you should not give the neighbor legal advice, you could suggest that the offensive tenants might be restrained with the assistance of an attorney who can terminate the tenancy if the partying does not cease. Thus, even though you cannot evict these unruly persons yourself, inform the owner that immediate action is required or you will have no choice but to initiate your own legal proceedings.
If the noise continues, you must commence a case for nuisance. The filing and service of this action will likely extract a more meaningful response from the owner. If not, you and your tenants will present the situation to the court and may receive a monetary award and/or an order prohibiting this late-night calamity.
In sum, be proactive and do not ignore your tenants’ plea for help. While you personally may not be disturbed by the ongoing chaos in an adjacent property, good landlords are attentive to the right of their tenants to live peacefully, and a failure to make substantial efforts to quiet the storm could lead your tenants to move out or, in the worst case scenario, bring a claim against you for not providing livable housing.
- David Wasserman
Q. A tenant stranded in a foreign country has asked another tenant to pay his rent in his absence. Are we obligated to accept this arrangement? The tenant has made no effort to contact us directly or make other payment arrangements.
A. There is no law that says that the landlord must always accept rent from a third party, or the reverse, that the landlord can always refuse rent from a third party. The question is one of intent by the parties and will turn on the specific facts of the case.
In general, landlords should always be cautious about accepting rent from third parties. Accepting rent from a person could establish a tenancy interest for the third party, which in San Francisco is something landlords definitely want to avoid (as it could lead to the familiar “revolving door tenancy” problem, preventing the landlord from bringing the rent to market level). Thus, a landlord should not accept a rent payment check with an unknown third party’s name on it, with no other information or explanation provided. Tenants often bring roommates into the unit without notifying the landlord and countless landlords in San Francisco have involuntarily turned an unapproved “co-occupant” into an “original occupant” (to quote the terms of Section 6.14 of the San Francisco Rent Board Rules and Regulations) by accepting rent this way.
In light of the above, it is reasonable for a landlord to refuse rent from an unknown third party, or without any explanation. However, a rent payment from a third party that clearly indicates that the rent is paid only on behalf of the tenant will not establish a tenancy interest in the unit for the paying third party. This is especially the case where you know that the paying third party has a residence elsewhere (another tenant in the building in this case); the landlord has no reason to think that the third party making the payment is tendering rent “as a tenant” in the subject unit when the tenant already rents another unit in the building. In this situation, it is likely that a court would not find the landlord’s refusal to accept the rent reasonable.
Thus, with a tenant stranded out of town, and another tenant in the building covering the rent, the landlord might as well take the rent payment. While the landlord is not technically obligated to accept the rent from the other tenant (the landlord could just wait for the return of the tenant to collect the rent), the landlord would not likely be able to enforce the missing payment by a 3-Day Notice to Pay Rent or Quit eviction action.
- Fredrik Emilson
Q. If I agree to consider giving consent to a sublet, can I also include in the lease that that consent may be reasonably withheld?
A. Most leases have provisions restricting the tenants’ rights to assign and/or sublet. In the absence of such provisions, the tenants’ ability to do so would be unlimited. In residential leases, the provisions are either an absolute prohibition on assignment and/or subletting, such as “Thou Shalt Not!” or, more commonly, “This lease may not be assigned nor the premises sublet in whole or in part without the prior written consent of the owner.” In the former case, absent certain considerations discussed below, the owner has no obligation to consider a sublet, and should he decide to vary from strict adherence to the clause, could clearly apply reasonableness standards. Likewise, where prior written consent is required, the landlord has the right to reasonably withhold permission for reasons of credit, a past eviction history, a poor reference from a prior landlord, overcrowding, etc. Unreasonably withholding consent, however, would probably not be upheld for a variety of reasons. Courts don’t generally like arbitrariness.
If your building is located in San Francisco, and was built before June 13, 1979, there are restrictions on your right to reasonably withhold consent to assignment and/or subletting under the San Francisco Rent Ordinance. Section 37.9(a)(2)(A) of the ordinance provides that you must allow a one-for-one replacement of existing tenants, one time per year, so long as the original tenant continues to reside in the unit. Section 37.9(a)(2)(B) provides that you may not prohibit subletting to certain designated relatives of existing tenants, including children, parents, grandparents, siblings, or the spouse or domestic partner of such persons, so long as the numbers don’t exceed two persons in a studio unit, three persons in a one-bedroom unit, four persons in a two-bedroom unit, six persons in a three-bedroom unit, eight persons in a four-bedroom unit, or the maximum number permitted in the unit under state law and/or other local codes such as the Building, Fire, Housing and Planning Codes. The landlord’s reasonable refusal of the tenant’s written request may not be based on the proposed additional occupant’s lack of creditworthiness, if that person will not be legally obligated to pay some or all of the rent to the landlord. There are certain formalities the tenant must comply with, such as a prior written request and a 14-day opportunity for the landlord to reasonably accept or reject.
So, go forward and exercise your rights reasonably as best you can in the thoroughly unreasonable environment in which you, as a San Francisco landlord, must function.
- Saul M. Ferster
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. Fredrik Emilson is a principal with Cornerstone Law Group and can be reached at 415-357-2099. Saul M. Ferster can be reached at 415-863-2678. Copyright © 2008 by SF Apartment Magazine. All rights reserved.