Legal Corner Q & A
by Various Authors
Q. I filed an unlawful detainer for a tenant who didn’t pay rent. I got a default judgment and am currently waiting for the sheriff to come out. Meanwhile, the tenant finally sent me a rent check. Can I cash it without compromising the eviction?
A. If the landlord wishes to enforce the three-day notice, the landlord should not accept the rent demanded in the notice after its expiration, but should rather seek recovery of said rent in the unlawful detainer action. According to case law, when a landlord accepts rent demanded in the notice, even after expiration of the three-day notice, a new tenancy is created, and thus, the landlord is precluded from seeking possession, pursuant to the notice.
Whether this rule applies even after entry of judgment is less certain, but a tenant attorney can always make that argument, which may well delay the sheriff’s eviction, even if the judgment itself is not overturned. Thus, the prudent course of action is to wait until after the sheriff has performed the eviction before cashing the check. Once a tenant is out of possession, it is all but impossible for the tenant to legally regain a right to possession and the eviction cannot be compromised.
In this situation, the landlord has obtained a default judgment, which may not necessarily include an award for money damages (unlawful detainer damages plus the rent demanded in the notice). Sometimes when the tenant is in default in the unlawful detainer action (i.e. has failed to respond to the complaint), the landlord will opt to first obtain a judgment for possession only, which is quicker to obtain, in order that the sheriff’s eviction may take place. The landlord then later amends the judgment to include the rent claim.
If the landlord here has obtained a default judgment that includes the money damages, and, thus, the rent demanded in the notice, the rent now tendered by the tenant may be construed as a payment to satisfy the judgment. Since the landlord has a judgment for a certain amount against the tenant, the landlord must be allowed to collect an amount equal to, or less than, the full amount of the judgment without compromising it, or waiving any rights. Even if the judgment is for possession only, and does not include an award of damages, it is unlikely that a court would rule that the landlord could “waive” the judgment by accepting the rent.
However, in the case of a default judgment, it should be noted that it may be set aside by the tenant relatively easily, and thus, the issue of acceptance of rent becomes a potential defense again. This is an additional reason not to accept the rent until after the eviction has been performed.
—Fredrik Emilson
Q. I have an elderly tenant whose car leaks a large amount of oil, which is draining into the main sewer line and being tracked into the building. I sent a letter telling her to clean it up as it could be a hazard. So far, nothing has happened. What else can I do to get her to clean up after her car? Also, if someone slips and falls because of the oil, am I liable?
A. Anything that is offensive to the senses or constitutes a potential health or safety hazard is a nuisance. A tenant has an obligation, whether or not it is written in your rental agreement, not to permit or create a nuisance. The leaking oil you describe is a nuisance for several reasons. First, it creates a danger, as your question recognizes, of someone slipping and being injured. Since you are on notice of this problem, you would be liable to the injured party for failing to maintain the garage in a safe condition. In addition, if the oil is leaking into the main sewer line, you are probably running afoul of state and federal laws concerning hazardous waste materials and their disposal. It would be a good idea to post a clearly visible warning in the garage about a potential slippery floor from oil spills to lessen the risk of liability along with the standard Proposition 65 warning sign concerning hazardous substances that should probably be posted in every garage, whether legally required or not.
You should follow up your letter with a stern warning that unless the problem is immediately remediated, she will have to remove the car from the garage. If she fails to do that, a 30-day notice changing the terms of her tenancy by removing the garage privileges may follow, accompanied by an appropriate decrease in rent for the decrease in housing services provided. This procedure may be more difficult because of a recently passed change to the San Francisco Rent Ordinance that will prohibit a landlord from taking back parking privileges without one of the 14 just cause reasons listed under the ordinance. Those just cause reasons may often not make sense in the terms of the withdrawal of most typical housing services, but, fortunately, nuisance is one of the 14 just cause reasons and should support withdrawal of the parking space under the circumstances.
Should the tenant continue to resist, a three-day notice to cure the problem or quit her premises may become necessary, resulting in the termination of her tenancy for failure to comply. However, given that you are dealing with an elderly woman and a potentially long-term tenancy, and recognizing the realities of people’s sympathies and the difficulties of eviction in San Francisco, this alternative should obviously be the last resort. If the parking privilege is withdrawn based on the failure to correct the problem, your tenant should get the idea that it will be preferable to pay a mechanic to fix the oil leak than to risk permanent loss of her parking privileges.
—Saul M. Ferster
Q. Two tenants in my building leave cigarette butts all over the back alleyway and entranceway. I have a nonsmoking clause in my lease. Does it apply to the outside area? If the nonsmoking clause won’t work, is there anyway I can get them to stop or at least clean it up?
A. With the latest government reports confirming the adverse health effects of second-hand smoke, the nonsmoking clause in your lease should be enforceable and allow you to prevent your tenants from smoking in their units. If the nonsmoking clause also includes common areas, this would also be enforceable. It sounds like the back alleyway is outside the building and common areas and would not be covered by the lease clause. But, if the tenants are leaving cigarette butts in the back alleyway and entranceway, they are committing a nuisance. The San Francisco Rent Ordinance defines a nuisance to include situations where the tenant is creating a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building. Most people would agree that smoking cigarettes and discarding cigarette butts all over the back alleyway and entranceway constitutes a nuisance. Other tenants have to pass through these areas to enter and exit the building. If the smoke was wafting from the alleyway and entranceways into the inside common areas or individual units, that would further strengthen your case.
I recommend keeping records of the nuisance behavior: take photographs of the cigarette butts for a month, keep a log of other tenants’ complaints and request written complaints from the other tenants and neighbors regarding the problem. Finally, write a polite, but firm, letter to the offending tenants requesting that they cease this conduct. If they continue to do it, write them a firmer letter stating that you will have to seek more drastic remedies if they do not comply. If they fail to comply, after hiring experienced counsel, you could serve them with a Three-Day Notice to Quit for Nuisance. Your case will be much stronger if you have detailed records regarding the behavior, warning letters and corroboration from independent third parties such as other tenants or neighbors.
—Lawrence M. Scancarelli & Jerod Hendrickson
Q. We have a vacant unit and want to save it for a relative to live in a year from now. Using the PPMA Lease, is it possible to rent the unit for only one year and get it back the following year or is it best to leave it vacant?
A. If the tenants are protected under the San Francisco Rent Ordinance, you may not lawfully terminate the tenancy simply because the initial one-year term of the lease has expired. Under the Rent Ordinance, the landlord may terminate a tenancy only based upon one of the just cause grounds for eviction set forth in Section 37.9. The expiration of a lease is not included as a “just cause.” Therefore, when the lease expires, the tenants may remain in possession on a month-to-month basis until the tenancy is terminated for some other lawful reason.
You may lawfully evict tenants in order to provide a residence for a close family member under the provisions of Rent Ordinance Section 37.9(a)(8)(ii). Therefore, at the end of the initial lease, you could terminate the tenancy with a proper notice as long as you meet the requirements of that section. Section 37.9(a)(8)(ii) permits landlords to terminate a tenancy in order to provide a residence for the landlord’s grandparents, grandchildren, parents, children, brother or sister, or the landlord’s spouse or the spouses of such relations, as long as the family member intends, in good faith, to occupy the unit as their principal residence for at least 36 months.
However, an important limitation was added by the voter-approved initiative Proposition G. Under Prop. G, you are not allowed to evict tenants in order to provide a residence for your family member unless you will also live in the same building. Thus, you may lawfully evict tenants from multiple units in order to provide primary residences for yourself and for other family members. However, you may not evict tenants from a unit on family-occupancy grounds if you do not live in the building yourself. This applies even to single-family dwellings, if subject to the Rent Ordinance. Therefore, under the law as written, you may not evict tenants from a single-family house in order to provide a residence for your parent, child or other qualified family member.
There are many landlord attorneys who believe, as I do, that Prop. G is unconstitutional on grounds explained by the court in the appellate court decision Cwynar v. City and County of San Francisco. In that case, the court discussed the view that Prop. G could constitute an invalid confiscation of private property by the government without paying due compensation to the owners. Prop. G is subject to challenge on constitutional grounds in that, in practical effect, it creates a permanent occupation of private property that would otherwise be used for occupancy by the owner or family members. It might be a difficult and expensive task for an individual owner, or group of owners, to pursue such a constitutional challenge through the courts. I understand that SFAA may provide support and funding for a legal challenge to Prop. G if the appropriate case arises.
Some landlords have already successfully sought to evict tenants on family-member occupancy grounds, despite Prop. G and tenant opposition. After rulings favorable to the landlords, the tenants have vacated after reaching settlement agreements.
On the other hand, many landlords leave units vacant in order to avoid the burdens and complications imposed under the Rent Ordinance.
—Michael C. Hall
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. 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. Lawrence M. Scancarelli and Jerod Hendrickson can be reached at 415-398-1644. Michael C. Hall can be reached at 415-512-9865. Copyright © 2006 by the San Francisco Apartment Magazine. All rights reserved.