Legal Corner Q & A

Tenant Noise, Relative Move-Ins and Other Lease Issues

By Various Authors

Q. What’s the duty of a landlord in determining what is or isn't appropriate noise for tenants?

A. First, a landlord should look at the rental agreement for guidelines regarding tenant conduct or house rules. Some
comprehensive rental agreements include strict guidelines concerning this area.

Next, a landlord can look at the Rent Ordinance for further guidance. The Rent Ordinance permits a landlord to evict a tenant who is committing a nuisance or is creating a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building.

The landlord should evaluate the circumstances to determine whether or not a tenant’s noise creates a nuisance or a substantial interference. For instance, a landlord may consider the type of noise, the time of occurrence (day or night), the frequency of the noise, and the persons who are bothered by the noise. This type of eviction is largely dependent on good witnesses who are adversely affected by the noise.

A landlord should consult with an attorney to determine whether a warning letter or an eviction is appropriate.
– Steve Williams

Q I recently read that a landlord in San Francisco was arrested because he allegedly performed an owner-relative move-in eviction and then, instead of moving in his relative, he re-rented the unit at a higher rent. I have always been a conscientious owner and attentive to the housing laws, but should I be prepared to go to prison if I do something wrong?

A. In early March this year, the District Attorney’s Office filed a criminal misdemeanor complaint against a 33-year old man for allegedly violating the Rent Ordinance in a small apartment building he owns in the Marina District. The gist of the complaint claims that fireman Daniel Strambi unlawfully increased the rent by charging a new tenant market rate for a unit that was vacated supposedly because of a relative move-in eviction. The charge claims that the three-year rent limitation for units vacated by way of an owner/relative move-in applied in this case because the relative failed to reside in the unit for 36 continuous months. Mr. Strambi pled not guilty to the charge. He is being represented by Wasserman & Taxman (our law firm) and is currently pursuing a dismissal of the action on the grounds that (1) the criminal complaint is unconstitutionally vague because it does not specify what provision of the Rent Ordinance, if any, was breached; and (2) the Costa-Hawkins Rental Housing Act allows an owner to charge market level rents on vacated units regardless of limitations imposed by a local rent control ordinance. If Mr. Strambi is convicted, he may spend six months in jail and/or pay a fine of $2,000, in addition to a $20,000-plus restitution penalty for the supposed rent overcharge.

Mr. Strambi is the latest victim of the volatile political climate in San Francisco. The District Attorney (DA) publicly admitted that it investigated Mr. Strambi because of pressure from the Tenants Union. The DA also released a press statement prepared by the Tenants Union that contained gross inaccuracies. For example, the DA wrongly claims that Mr. Strambi attempted a “fake” Ellis Act eviction before resorting to a relative move-in action.

While the defense strategy of this case cannot be publicly discussed at this time, owners should note that the DA is re-energizing its efforts to criminally prosecute alleged violators of the Rent Ordinance. An official at the DA’s office confirmed that, in addition to information provided by the Tenants Union, the Sheriff’s Department is contacting tenant attorneys to inquire about questionable eviction files.

Therefore, all owners should be on special alert about pursuing any eviction. Make sure you are following the letter of the law and that your intentions motivating the eviction are lawful (i.e., not retaliatory or for any improper/ulterior purpose). You should always use an attorney skilled in the area of San Francisco landlord-tenant law. Criminal prosecutions are expensive to defend and not covered by insurance. If a conviction occurs, jail time may be required resulting in the loss of job and employment benefits, as well as the permanent stigma of a criminal record.

Last, if the DA approaches you during or after the eviction process, do not offer any information until you have conferred with an attorney. You have a constitutional right not to testify against yourself in a criminal matter; so don’t answer questions until you have counsel. For example, after owner/relative move-in evictions, the Sheriff’s Department sometimes sends investigators out to talk to the owner and/or submits a questionnaire form requesting information. Please consult with counsel before you provide any information to the law enforcement authorities, for any statements you provide may be used against you in court.

The Rent Ordinance has always provided for a criminal sanction in instances of unlawful evictions or illegal rent increases. In the last 10 years, a small handful of actual charges have been filed. No landlord has ever been convicted and sentenced to jail. Rather, the criminal cases have generally resulted in dismissal, a plea bargain, or diversion (community service in lieu of prosecution). The Tenants Union has recently expressed displeasure over this statistic and now demands jail time, according to their Web site. Not surprisingly, the DA has responded. The DA’s office is reckless and politically motivated, and we know on which side of the political spectrum Terrence Hallinan pledges his allegiance! So be careful, and always use a qualified legal professional during the eviction process.
– David Wasserman

Q. I am renting a flat to three roommates, but I want to limit the number of signatories on the lease to just two. Is this permissible under the Rent Ordinance?

A. This is perfectly permissible, although the question does not reveal your purpose. I have talked to landlords who, for example, want to have a single tenant responsible for both rent payments and all tenant-landlord communications. Therefore, when a group of individuals enters into occupancy at the same time, the landlord arranges for a single individual to serve as the master tenant who has sole contact with the landlord. The others are named subtenants of the master tenant. While this may seem beneficial, the arrangement generally does not make the landlord’s life any happier. Since you are proposing to put two of the three tenants as signatories on your rental agreement, this reasoning does not seem to apply.

One disadvantage of your arrangement is that in omitting the third tenant from the agreement, you are no longer in a position to demand certain obligations directly from him or her. Generally, you are in a better position if you have all tenants in privity of contract so that a breach of contract by any one of the unit’s occupants may be enforced directly against all of them. Of course, master tenants are responsible for the conduct of their subtenants, and in the event of a breach of the agreement, you would be able to require the master tenant to remedy the breach or have all of them, master tenant and subtenants, vacate the premises.

I have seen instances of the court refusing to enforce the provision for attorney’s fees in a rental agreement that has not been signed by a subtenant. Of course, many of my colleagues and I feel that a rental agreement should not have a provision for attorney’s fees (the PPMA Lease does not). All too often such a provision only assists the tenants who frequently do not have the wherewithal to pay if they lose, and yet it puts the owner at jeopardy if he or she loses in a lawsuit. Nevertheless, with regard to a variety of other obligations such as the duty to pay rent, you might want the ability to enforce a provision directly against everyone by placing them all on the agreement.

To conclude, if you feel that your interest is best served by having two of the three persons occupy the unit from day one as master tenants and the remaining person as a nonsignatory or subtenant, there is nothing preventing you from doing that.

Please note, however, that while there may be reasons to include everyone on the rental agreement if they all enter at the same time, a very different rationale applies if new people come in. The advantages of adding someone new to the rental agreement is usually greatly outweighed by the desirability of keeping them off in order to set a market rent, or to evict, when the original occupants vacate.
– Saul Ferster

The opinions expressed in this article are those of the authors and do not necessarily re�ect the viewpoint of the SFAA or the SF Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Steve Williams is with Wiegel & Fried, LLP (415) 552-8230. David Wasserman is with Wasserman & Taxman, 567-9600. Saul M. Ferstercan be reached at 863-2678. © Copyright 2002.