Legal Corner Q & A

by Various Authors

Editor's Note: The information contained in this article is general in nature, you should consult the advice of an attorney for any specific problem.

Q. If the City closes down an illegal unit, can the displaced person sue the landlord, even if they knew the apartment was illegal?

A. It is unlikely that the displaced tenant would ever recover damages in a lawsuit against the landlord. First, the tenant knew of the illegality of the rental transaction. Second, even if the tenant didn’t know the unit was illegal, the entire transaction is still illegal and the court will not reward a party to an illegal contract. This would be like a drug user suing his dealer for selling bad stuff—there would be no remedy in court.

I have never seen a tenant sue a landlord for renting an illegal unit. I have heard of threats of such suits, but not of any action taken. On the other hand, our current district attorney appears anxious to pursue rental housing providers for minor infractions of the law—so watch out!

And for the record, I am not advocating that any property owner actually rent an illegal unit. Renting substandard units or those built without permits is illegal.

—Clifford E. Fried

Q. When advertising a vacancy, can I legally request a non-smoker?

A. Yes, the law doesn't prevent all discrimination, just so-called suspect classes of discrimination, such as that based on age, marital or family status, sexual orientation, race, color, religion, children, sex, ancestry, national origin, disability, etc. You are free to discriminate for reasons that could have an adverse effect on your property. Preferring a nonsmoker as a tenant is entirely rational. Non-smokers will not burn holes in your carpet or hardwood floors. Nonsmokers will not fall asleep with a lighted cigarette, causing your building to burn down and endangering the lives of other tenants. Nonsmokers will not cause you to be contacted by neighboring tenants complaining about smoke coming into their units through the hallway or from ducts connected with smokers’ apartments. There are many rational reasons why one would prefer nonsmokers, and I can't think of a single one to prefer a smoker.

Sometimes, people ask if it's O.K. to advertise for nonsmokers only, even though you have not had a smoking restriction for prior tenants. The answer is still yes. You are always free to change your policies, and each new rental agreement is a separate contract with the new, incoming tenant, the terms of which do not have to be linked to those offered other tenants. Of course, once again, make sure that the reason for your discrimination is for something proper only, such as to begin to eliminate smokers from your building, and not a subterfuge for eliminating someone from the classes of persons against whom you may not discriminate. Also, you should then rent only to someone who meets the criteria advertised. If you advertise for a nonsmoker, and then turn down the application, for example, of a nonsmoker single mother with three children, but accept the application of a single male smoker, you may have bought yourself one heap of trouble. Finally, when interviewing new applicants, you should always be especially sensitive to appearances as well as facts. Not only do you not want to discriminate for an improper reason, you also do not want to appear to discriminate for an improper reason, even when discriminating for a proper one. As situations arise, you need to ask yourself, is there anything here which is improper? or which someone reasonably may feel is improper? Guide your actions accordingly.
—Saul Ferster

Q. I am in the process of selling my building. Unfortunately, one of my tenants refuses to allow my real estate agent access to the unit and consequently we cannot show the unit to prospective buyers. What law covers this matter and what can I do?

A. Civil Code section 1954 states that a landlord may enter a rental unit, for, among other reasons, the purpose of “exhibit[ing] the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors.” However, the landlord must give reasonable notice before entry. The Civil Code says that: “Except in case of emergency… the landlord shall give the tenant reasonable notice of his intent to enter and enter only during normal business hours. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary.”

Section 37.9(a) (6) states that a tenancy may be terminated if, “[t]he tenant has, after written notice to cease, refused the landlord access to the rental unit as required by state or local law….”

I advise giving the tenant written notice, preferably hand-delivered, at least 24 hours before the scheduled tour. Failure of the tenant to grant access at the specified time should be followed by a written warning letter. Upon the tenant’s subsequent refusal to grant access, a three-day notice to cure or quit may, under appropriate circumstances, be served, and the tenant could be evicted. In addition, other court remedies may be available to the landlord.

The landlord should take special care to ensure that the tours are occurring during normal business hours, meaning a 10:00 PM tour would probably be unreasonable. Moreover, you cannot use access to harass the tenant, so don’t schedule the tours in a way that will be disruptive or overly inconvenient.

Unfortunately, the law does not define what constitutes “normal business hours.” Ideally, the landlord should include a definition of “normal business hours” in the lease agreement.

Obviously, real estate agents will call with urgent requests for immediate access. Remember to follow the Civil Code’s mandates before requesting entry, and be sure to document your file with the notice for request of entry, coupled with a letter confirming the tenant’s refusal to grant entry, followed possibly by a notice terminating tenancy. Do not enter the unit if the tenant has refused access and you don’t have a court order. An unauthorized entry by the landlord is trespassing and may, in certain circumstances, entitle the tenant to damages based on harassment, invasion of privacy, emotional distress, etc.

As with any legal action in the volatile area of San Francisco landlord-tenant law, I highly recommend that you seek competent legal advice before commencing legal action against the offending tenant. —David Wasserman

Clifford E. Fried is with Wiegel & Fried, LLP, 552-8230. Saul Ferster can be reached at 863-2678. David Wasserman is with Wasserman & Taxman, 567-8230. The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. The information contained in this article is general in nature; you should consult the advice of an attorney for any specific problem.