Legal Corner Q&A
by Various Authors
Q. If a neighbor’s tree is blocking the ocean view to three adjacent buildings, do these neighboring owners have the right to have the tree removed or trimmed at the tree owner’s expense?
A. The answer to this question depends upon where the properties are located. In a recent court case coming out of Tiburon in Marin County, owners of an apartment building sued their neighbors under a Tiburon law to compel restoration of their views. The “View and Sunlight Obstruction from Trees” ordinance grants property owners “the right to preserve and seek restoration of views or sunlight which existed at any time since they purchased or occupied a property, when such views or sunlight are from the primary living area or active use area and have subsequently been unreasonably obstructed by the growth of trees.” In addition, “[n]o person shall plant, maintain or permit to grow any tree which unreasonably obstructs the view from, or sunlight reaching, the primary living area....” Owners of neighboring parcels who violate this act may be ordered to trim, thin, top or even remove their offending trees.
The California Court of Appeal upheld this legislation, declaring that local governments may protect views and provide for light and air. However, the court also noted that California law in general does not recognize a landowner’s right to air, light or an unobstructed view. In other words, absent some specific city or county ordinance, a landowner may not have the right to compel a neighbor to trim trees that obstruct a view.
In a more recent case from Southern California, the Court of Appeal considered a similar voter-approved ordinance that limited the height of foliage on residential property so as to preserve hillside views. A property owner who was required to trim eight of his trees sued the City of Rancho Palos Verdes. In siding with the city, the court held that the purpose of this law represented a legitimate exercise of traditional police power.
Northern California jurisdictions that have adopted some form of Tiburon’s view law include Albany, Atherton, Belvedere, Berkeley, Carmel, Fairfax, Hayward, Hillsborough, Lafayette, Livermore, Los Altos, Napa, Oakland, Orinda, Piedmont, Ross, San Anselmo, Santa Clara and Walnut Creek. Noticeably absent from this list is San Francisco. Oddly, the town with the best views in the world lacks a specific ordinance that would compel owners to keep their trees trimmed. However, with regard to construction, the city’s Planning Department may place appropriate conditions on the approval of a building permit to protect the light, air and view of adjacent properties. Specifically, the city has prevented erection of large rooftop antennae, such as satellite dishes, when these objects pose a threat to neighboring properties’ views. Yet without a specific tree-trimming law on the books, the owner with an obstructed view may have to rely on kindness instead of the courts.
—David Wasserman
Q. If there are multiple owners to a building and units become vacant (not through eviction) can the different owners move into the vacant units as they occur?
A. Yes; although the restrictions on property use in San Francisco are ever increasing, we are fortunately not yet at the point where an owner’s ability to move into his or her own property is restricted where no eviction has occurred.
In fact, even after an eviction under any of the just causes for eviction under the San Francisco Rent Ordinance, there is really no affirmative prohibition against an owner occupying the unit. An Ellis Act eviction, for example, only results in a restriction on the owner’s ability to rent the unit, not to live in it. Of course, an eviction based on the owner’s stated intent to demolish the unit or use it for a nonresidential use involves an implicit restriction on the owner’s ability to move into the unit. After an eviction on such grounds, the owner is expected to follow through on the stated demolition/removal, which would not be compatible with continued occupancy, by the owner or by anyone else.
However, where no eviction has taken place, and the unit is vacant following the tenant relinquishing possession on his or her own accord, there is no restriction on the owner or owners’ right to occupy the unit, or use it for any other use permitted under local zoning laws.
In this situation with multiple owners, an individual owner’s right to move into any particular unit would therefore only be limited by a tenancy-in-common (or equivalent) agreement, which commonly restricts the individual owners’ right to possession to a particular unit within the building.
—Fredrik Emilson
Q. I have a disabled tenant who has a 24-hour live-in worker to care for him. What is my relationship with the live-in worker? Do I have to give her a 6.14 Notice?
A. You, the landlord, really have no direct relationship to the 24-hour care worker. That person is in the unit not as a tenant, or even as an unauthorized subtenant, but rather to perform an employment function for your tenant. This person really has no more right to claim possession to the unit than would the cleaning lady or the friend who is house sitting for two weeks while your tenant is on vacation. In either case, the worker is present to perform the work only as a licensee, and not as a tenant. Nevertheless, to prevent problems in the future, it is advisable to have the worker sign a statement confirming that he/she does not reside in the unit, has his/her own residence elsewhere, makes no claim of right to possession, and that such a person cannot become a tenant without first notifying you in writing that he/she wishes to become a tenant and obtains your written consent.
Finally, even with all that, I would still serve this person with a 6.14 Notice. It is probably redundant to do so, but sometimes redundancy is a good thing. Just as during the Cold War, the United States and the Soviet Union had redundant “fail safe” systems to protect against an accidental nuclear war, so, too, it doesn’t hurt for you to serve a 6.14 Notice on the worker as a “fail safe” measure to protect you in the lesser, but nearly equally cold and hot war between landlord and tenant in San Francisco’s volatile rent-controlled environment.
—Saul M. Ferster
The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of SFAA or SF 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 and can be reached at 415-567-9600. 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. Copyright © 2007 by SF Apartment Magazine. All rights reserved.