Legal Corner Q & A
by Various Authors
Q. A tenant is moving out and I want to arrange to let prospective tenants come by to see the apartment. I gave the tenant appropriate notice that I would be showing her unit, and she orally agreed. But once I arrived, she refused to let me or the prospective tenants into the unit. What should I do?
A. You should first make sure that you gave proper notice. A landlord may gain access to show the unit to prospective tenants. However, notice must be in writing, and must include the date, approximate time and purpose for the entry. In addition, unless the tenant otherwise consents, the entry should be during normal business hours. The notice should be personally delivered or left at the unit at least 24 hours in advance; if mailed, the mailing must occur at least six days prior to the entry.
If these requirements are satisfied, entry is lawful. However, if the tenant does not allow entry, do not force your way into the unit. Such “self-help” tactics will lead to criminal and civil sanctions against the owner. Thus, if a legitimate request for entry is refused, apprise the tenant in writing that she should cease and desist from this conduct or legal action may be pursued. You may want to inquire as to why entry was denied and if a more suitable time and date is desired. Many tenants dislike repeated entries during their private time, so perhaps an agreement to have one or two showings when the tenant is at work would invite a more positive response. Informally resolving the problem far outweighs resorting to legal remedies. After consulting with the tenant, promptly seek to properly renotice another entry.
If the tenant still refuses, you may want to consider service of a termination notice for denial of access. The local rent law permits a landlord to terminate a tenancy if the tenant does not allow lawful entry. Even in this case, where the tenant has announced that she will be leaving, the landlord may still want to serve a 30-day notice on this ground, as a tenant’s notice to vacate may be rescinded at any time and cannot be used as a basis for eviction. In addition, it may persuade the tenant to reconsider her position.
As an alternative, if you cannot convince the tenant to permit showings, consider waiting until the unit is vacant and fixed up before giving applicants a tour. Most real-estate professionals will tell you that empty, freshly painted and clean apartments rent more quickly and for higher rents than occupied units with clutter and mess. Before taking any course of action, consult with a qualified attorney who can evaluate the situation and provide you with the best options.
–David Wasserman
Q. I have a no-pet policy in my building. A tenant told me that she wants to keep a dog that had belonged to her mother, who recently died. She said the dog was an “emotional service” dog that was helping her deal with the recent death and that she should be allowed to keep it. She has a note from her therapist saying as much, but this dog has no particular “emotional service” training. Do I have to allow it?
A. Fair housing laws allow disabled persons to keep an “emotional service” animal, even in a no-pet building. The law requires that the landlord provide “reasonable accommodations” for disabled persons in order to use and enjoy their home; this includes allowing a service animal. Service animals are not “pets,” but are considered to be assistive aids for the person, similar to a wheelchair or hearing aid. However, the tenant must qualify as “disabled” to keep an emotional service animal. As we already know from this term’s application to extended notice periods and increased relocation payments in Ellis Act evictions, the definition of “disabled” is very broad and often abused.
The tenant’s claimed psychological disorder or condition must “substantially limit one or more major life activities” (such as caring for herself, learning, etc.). Also, there must be a nexus between keeping the animal and the easing of her symptoms. Finally, the tenant must provide the landlord with a letter from her therapist/physician verifying that the tenant has a disability and verifying the nexus between the animal and the easing of her symptoms. Neither the tenant, nor the therapist/physician are required to disclose the details of the tenant’s disability.
It is important to note that the tenant is not required to provide you with proof of the animal’s training or certification (Green v. Housing Authority of Clackamass County). Because no federal service training and no service trainer certification exists, there is no amount or type of training required for service animals, nor is there a required amount or type of service the animal must provide.
If the tenant meets the above requirements, unless it is proven that the animal would cause an undue burden on the landlord, a service animal must be allowed. In reviewing the applicable law, it appears as though you should allow the animal. However, to protect the enforceability of your no-pet policy, you should send a letter to all tenants reiterating the policy and stating that this exception was only made because of medical necessity. Be warned, though, that this may backfire by giving other tenants the idea of qualifying for a service animal as well. Please contact an attorney who specializes in the above issues before taking any action.
–Sally Morin & Tina J. Collins
Q. Six years ago, I bought a 2-unit building with a protected tenant who lives with his parents. Since then, his parents, who signed the original month-to-month tenancy, have passed away. Should I ask the tenant to sign a new contract with his name on it?
A. The question validly assumes that the adult child of the former tenants is a tenant. No apparent significance attaches to his “protected” status in this scenario. Moreover, we are not informed if he entered the apartment as a minor or an adult. Attempts have been made to serve children of tenants with 6.14 notices within 60 days of the date they achieve adulthood, in order to permit a rent increase when the parents vacate.These attempts have not been upheld by the San Francisco Rent Board. Moreover, while one might argue that since a child cannot lawfully contract for tenancy, and therefore first becomes a tenant upon reaching majority, it remains difficult to assert that someone who has lived continuously in the unit for most of his life, albeit as a child, is a “subsequent occupant” within the meaning of the Rent Board’s Rules & Regulations Sec. 6.14 upon reaching his 18th birthday.
Nevertheless, definite advantages result from having the tenant sign a new agreement to which he is explicitly a party. Any uncertainty on the part of either landlord or tenant regarding the tenancy terms is eliminated. In addition, the agreement with the deceased parents may be old, and not particularly relevant to the conditions that exist today, especially in an evolving rent-controlled environment. Nevertheless, should the tenant refuse to sign a new agreement, you could not compel it. The San Francisco Rent Ordinance allows eviction of a tenant who had an oral or written agreement with the landlord that has terminated if he has refused, after written request, to execute a written extension for a further term of like duration under terms that are materially the same.
This would not appear to pertain to this tenant, who did not have the prior agreement, but rather inherited the tenancy from his parents. Your inability to compel a new agreement is even more pronounced if the proposed terms are significantly less favorable to the tenant than those of his parents’ agreement. Even without his signature, however, he occupies the unit under the tenancy of his parents and has therefore assumed their agreement, the terms and conditions of which continue to bind him. A tenant, however, enjoys an element of psychological security in seeing his name on the rental agreement, and if he is not unduly disagreeable, and you don’t offer too onerous a new agreement, you should be able to get him to execute one voluntarily that is fair and reasonable to you both.
–Saul M. Ferster
The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of SFAA or the San Francisco 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, 415-567-8230. Sally Morin and Tina J. Collins are with the Law Offices of James M. Millar, 415-981-8100. Saul M. Ferster can be reached at 415-863-2678. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.