Legal Corner Q & A
by Various Authors
Q. A few months ago, I properly served a Section 6.14 Notice to an incoming tenant and placed her name on the lease. All her roommates are now moving out and she is the only one left. I am planning to give her a 60-Day Notice to raise the rent, but I am worried because her name is on the lease and I expect this will cause some problems with The Man.
A. You should worry. Unlike the past versions of Section 6.14 of the Rules and Regulations, the version in effect since April 2000 actually does not require service of a Section 6.14 Notice. Nevertheless, most landlord attorneys I know recommend it anyway. Why? The answer is to make absolutely sure you let the new occupant know that You are not my tenant, and I reserve my right to raise your rent to market if the original tenant leaves and you remain. In fact, many Section 6.14 Notices actually attempt to do more. They attempt to reserve the right for you to evict the new occupant as an unapproved subtenant when the original tenant leaves, a right Section 6.14 alone does not give you (but the Rent Ordinance does). You undo these rights when you treat the new person as if she were an original tenant.
Section 6.14 gives you the right to raise the rent for a subsequent occupant who is not a co-occupant. It also defines a co-occupant as a subsequent occupant who has a rental agreement directly with the owner. Under Section 6.14, you may not raise the rent of a co-occupant when the original occupant vacates.
The depth of your predicament depends very much on what you mean by putting the new person on the lease. If you just added a line, and signed her up, you have a problem. Of course, one can legitimately argue that you qualified your acceptance by simultaneously serving her with a Section 6.14 Notice, thereby clearly demonstrating your intent to reserve your Section 6.14 rights. However, you would be better off if you had her sign something much more limited such as an agreement not to break building rules and regulations. Even this is dangerous because you are still entering into a direct agreement with her that is totally unnecessary. If the subsequent occupant violates the lease provisions, other than by non-payment of rent (which you should not be accepting from her), you have a remedy against the original occupants who are bound to cure the problem, or the whole kettle of fish can be evicted anyway. Why, you ask, is an agreement with the subsequent occupant necessary? Your entire goal with this person is to not create a landlord/tenant relationship between you, i.e., to keep your distance. You sabotage that goal by putting her on the lease.
Is there any hope? Maybe. The patients still alive, but the breathing is labored and the prognosis isnt great. The Costa-Hawkins Rental Housing Act, which is state law, provides that in situations where the original occupants who took possession of the rental unit pursuant to the rental agreement with the owner no longer permanently reside there, the owner can raise the rent for a lawful sublessee or assignee who did not reside at the dwelling prior to January 1, 1996. The problem is that by putting a subsequent occupant on the lease, unless you did so with words carefully limiting her status, you have made that person your tenant, rather than a subtenant or assignee.
So, serve the 60-Day Notice, and hope for the best. Then, never
again put your tenants subtenant on the lease, unless you
are willing to make that person an original tenant.
—Saul M. Ferster
Q. Has there been any successful rent increases by filing a Section 1.21 petition?
A. On June 5, 2001, the Rent Board Commissioners passed Regulation 1.21. This regulation attempts to define a tenant in occupancy and allows a landlord who believes a tenant is not in occupancy to file a petition with the Rent Board. If the petition is granted after an expedited hearing, the landlord can raise the base rent to fair market value, but may not evict the tenant.
Although I do not know of any decisions on a Section 1.21 petition, my office has been involved with several pending petitions. I would like to share some of my impressions with the general membership. The first petition I filed was hotly contested by the tenant who admitted at the hearing that since 1994, he has resided in Mill Valley for about 27-28 days per month. However, he claims to still be a tenant in occupancy because:
- He gets some of his mail at his apartment in San Francisco, when he stops in to pick it up once or twice a month;
- He pays the PG&E bill of his apartment in the city, although he conveniently edited the power usage information and payment amounts when he presented the bills at the hearing;
- His drivers license lists the San Francisco apartment, although he admits he renews his license in Corte Madera, and his vehicle registration reflects his Marin address as his home; and
- His old furniture remains in the city apartment because his Marin place came fully furnished.
Incredibly, the Rent Board judge is seriously weighing the merits of my clients petition. The judge argues that the text of Section 1.21 does not state that more weight should be given to a tenants admission that he does not normally return to the SF apartment and use it as his principal place of residence.
The problem with Section 1.21 is, therefore, its failure to guide Rent Board judges regarding how to evaluate a tenant's principal place of residence. The legislation sets forth five general categories as a guide:
- Whether the apartment is listed as the tenants residence on their vehicle registration, drivers license or other government documentation;
- Whether utilities are listed in the tenants name;
- Whether the tenants possessions still remain;
- Whether the tenant has filed a homeowners tax exemption at another property; and
- Whether the SF apartment is the place the individual normally returns to as his home
Each category is seemingly accorded equal weight, although the intent of Section 1.21 as stated by the Rent Board is to limit the jurisdiction of the Rent Ordinance to principal places of residence. Admittedly, these petitions are not designed to extinguish rent control when the tenant goes away to school or takes a long vacation, but this legislation is designed to free up apartments held hostage by persons who no longer live in the city and have no intention of returning.
Number five should therefore be the focal point of a Section 1.21 analysis, but the statute does not specify this emphasis. Therefore, a tenant can easily maintain a pied-a-terre in the city simply by keeping the utilities in his/her name, making sure the tenants license still lists a San Francisco address and continuing to receive some mail at this seldom occupied address.
In my other petition, the tenant clearly moved to Oregon but continued to claim San Francisco as her principal place of residence. When I filed the Section 1.21 petition, she failed to appear and contest it. However, although the judge said that the landlord could raise this tenants rent, if there were any subtenants living in the unit, their rent would remain subject to rent control. Unfortunately, the Oregon resident left some unknown occupants in possession of the apartment, so this petition was not entirely beneficial (although the landlord in this instance has other remedies).
The benefits versus burdens of Section 1.21 remain to be seen. In my experience, I have concluded that the statute does not sufficiently guide the judges about what constitutes a principal place of residence such as a drivers license, utility bills and vehicle registration. Obviously, these can be easily manipulated and are not appropriate guides for ascertaining where someone lives. This petition process is no substitute for 6.14 Notices, so do not let your guard down.
Before filing, I recommend spending the time and money to investigate all of the pertinent facts. For example:
- Instruct an investigator to procure a copy of the tenants vehicle registration (you can no longer get driver's license data);
- Invite other tenants in the building to testify they have never seen this tenant;
- Investigate where the tenant is really living, and get a statement from his new landlord or, if he owns his new residence, obtain a copy of the grant deed;
- Ask someone to photograph your tenant coming and going from his new residence.
Remember that Rent Board actions do not allow for formal discovery
(e.g., depositions, subpoenas), but you can, and should, do your
own private investigation. Good luck.
Q. What is the time limit if I want to protest and appeal the final judgment against me in an action for unlawful detainer to the Appellate Court or the California Supreme Court?
A. The answer depends on whether or not the eviction was filed and litigated in the unlimited jurisdiction division of the Superior Court (i.e., former Superior Court), or in the limited jurisdiction division of the Superior Court (i.e., former Municipal Court). However, with the exception of the rather rare case in which the total amount of damages claimed in the eviction exceeds $25,000, evictions must be filed in the limited jurisdiction division. Virtually all-residential unlawful detainer actions are filed in the limited jurisdiction division, and this answer addresses this typical and likely scenario.
Once a final judgment has been entered against you in an eviction in the limited jurisdiction division, you must appeal to the appellate division of the Superior Court by filing a notice of appeal, if you want a review. How much time you have to file a notice of appeal, and when you must do so, depends on whether or not you received notice of entry of the judgment in the eviction. Absent an extension from the court, you must file your notice of appeal with the appellate division of the Superior Court on or before the earliest of the following:
Thirty days after the court clerk mails you a document entitled, Notice of Entry of judgment;
- Thirty days after the date of service by a party to the action of a document entitled Notice of Entry of judgment;
- Ninety days after the date of entry of the judgment (i.e., when neither the court clerk, nor a party to the action, provides you with formal written notice of entry of the judgment).
For notice purposes under the first two above, the service of a file-endorsed copy of the judgment (as opposed to a formal document specially prepared to give you notice that the judgment was actually entered usually a document entitled Notice of Entry of Judgment with a file-endorsed copy of the judgment attached as an exhibit]) will suffice and will begin to run your time for filing your notice of appeal.
In addition, the manner of service of the notice by the court clerk or party to the action does not affect or extend the amount of time you have to file your notice of appeal. If the notice is mailed to you, you do not get an additional five days to file your notice of appeal. Whether it is mailed, personally served, faxed or otherwise, you have 30 days from the date of service to file your notice of appeal.
You need to know that the time within which you must file your notice of appeal is jurisdictional, which means that notices of appeal filed late are completely ineffective. This is a rule without an exception. If you do not file your notice of appeal on time, the appellate division will entirely lack jurisdiction or constitutional power to hear your appeal.
As far as the Court of Appeal or Supreme Court are concerned, unless your unlawful detainer action was a rare one that was filed and decided in the unlimited jurisdiction division of the Superior Court, the appellate division of the Superior Court is effectively your court of last resort. In fact, the Court of Appeal recently reiterated this point in Sites v. Superior Court (Rosenbledt), 86 Cal.App.4th 504 (2001). It noted that [t]he appellate division of the superior court is ordinarily the last resort for review of a case that originated in the municipal court [limited jurisdiction division]. Id. at 507. If you appeal an adverse judgment to the appellate division of the Superior Court, and the appellate division affirms the adverse judgment against you, then you must essentially accept the results. Unless you could claim that the appellate division exceeded its jurisdiction in acting upon the appeal (rare) or abused its discretion in refusing to request that the Court of Appeal decide the appeal itself in order to secure uniformity of decision or to resolve an important legal question (rare), you have no basis for seeking any further review in the Court of Appeal or the California Supreme Court. Absent extraordinary circumstances, the appellate division of the Superior Court is your court of last resort.
Appeals are rather technical. If you intend to file an appeal, you
should consult with an attorney.
The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem.Saul M. Ferster can be reached at 863-2678. David Wasserman is with Wasserman & Taxman, 567-9600. Curtis Dowlingis with Dillingham & Murphy, LLP and can be reached at 397-2700 x 209. © Copyright 2001.