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By Clifford E. Fried

In recent issues of this magazine (including this one), you have had an opportunity to read a tenant lawyer’s opinions of SFAA’s Residential Rental Agreement. I have been asked to write a response to J. Wallace Oman’s three-part analysis of SFAA’s lease form.

I have known Oman since I started practicing law. Immediately after passing the California State Bar, I started cutting my teeth on the practice of the law by evicting his clients. (At the time, Oman worked for the San Francisco Neighborhood Legal Assistance Foundation.) He is an excellent attorney and a zealous advocate for his tenant clients. I have learned much about landlord-tenant law from Oman and he has made me a better landlord advocate.

Does this mean that Oman’s criticisms of the SFAA lease form are accurate and true? No. Because of his bias in favor of tenants and his true belief that the
legal cards are stacked against them, his opinions should be looked upon with great suspicion.

The fact of the matter is, SFAA’s lease  has been around in one form or another for about a dozen years and not one judge has ever declared the form unconscionable or illegal. In fact, with each revision, the form gets better and better. This, of course, angers tenant advocates.

It is quite admirable that SFAA gave Oman an open forum to vent his anger and frustration. It is my understanding that Oman’s articles were completely uncensored by SFAA and that he was allowed to say whatever he wanted. Do you think the San Francisco Tenant’s Union or Randy Shaw’s (Tenderloin Housing Clinic) Beyond Chron would ever allow SFAA to write an article for their publications or websites? Of course not. Landlords fully support constitutional rights, including those of free speech.

Unfortunately, SFAA isn’t giving me, a landlord advocate, an equal opportunity to respond to all of Oman’s comments. So I better stop beating my constitutional chest and get on with the task at hand: responding to Oman’s criticisms of the SFAA lease form. Oman has objected to quite a few lease provisions. I will respond to my top-five objectionable objections.

#1: Negotiated Agreement Provision (¶ 48)
Oman was most shocked by the language that says the lease was negotiated by the landlord and tenant. His position is that leases aren’t negotiated; the landlord gives the lease to the tenant and says, “take it or leave it.” While this could happen, it typically doesn’t. There is nothing in the SFAA lease that says the tenant must accept the lease “as is.” Tenants are always free to offer their own form, suggest alternative language to the SFAA form, or simply walk away from the application process if they don’t like the lease form or the terms being offered. This is what negotiations are all about.

I have reviewed thousands of residential leases in my career. The majority of the leases I see contain cross outs and added language, the product of heated negotiations between the landlord and tenant applicant. I have frequently chastised my clients for the changes in the form because they gave the tenant the upper hand in the negotiations. Unfortunately, I just can’t be there for every lease signing.

The number one falsehood being spread by tenant advocates is that tenants are naïve and helpless, and can’t negotiate for themselves. The reality is that most of the time, the San Francisco tenant signing a SFAA lease is much better educated and more intelligent than the landlord. Tenants read their leases and other contracts with a critical eye before signing. Some even consult with tenant lawyers like Oman before they sign.

Yes, there are tenants who sign leases without reading. It is their constitutional right to read, or not read, before signing. I’m sure that there are many SFAA members who sign mortgage documents, credit card applications and computer software agreements without reading. Do we complain later that we didn’t know what we signed? No, because we assumed the risk of not reading. We always had the option of walking away without signing the contract.

Many contracts state that the agreement being signed was freely negotiated and was drafted by all parties. This language doesn’t make the contract unenforceable and few contracts are set aside because of this language.

Oman ends his commentaries by saying that in the future, more and more prospective tenants will be legally sophisticated with ample resources, and when presented with the SFAA lease will walk away from renting. All I can say is goodbye and thank you for the opportunity to freely negotiate.

#2: Owner Move-In Provision (¶ 29)
The SFAA lease contains a statement that the landlord has the right to owner-occupy the premises. This provision was placed in the lease to inform tenants that they might not have an opportunity to live in the premises for the rest of their lives. Some tenants have claimed shock and dismay when receiving an owner-move-in notice because they were never warned when they signed the lease.

Oman’s objection to an owner’s right to occupy is understandable. As a tenant advocate, he objects to any eviction of a residential tenant, whether just or not. What reason would he have to provide the tenant with information on a just cause for eviction permitted by the San Francisco Rent Ordinance? By acknowledging the law, the tenant isn’t waiving any rights. Put simply, Oman doesn’t want landlords or tenants to know about owner-move-in laws.

Much of the language in the SFAA lease was placed there to educate tenants on what the law says. The logic was to avoid situations where the tenant would approach the landlord, after signing the lease, and ask for an explanation of a particular lease provision. It is easier and more accurate for an unsophisticated landlord to place an explanation in the lease than to answer legal questions over the phone.

#3: Landlord Entries (¶ 26)
California law permits an owner to enter a rental unit, for specified reasons, only during normal business hours. But that law doesn’t define “normal business hours.” In the SFAA lease, the landlord and tenant agree that normal business hours, for the purposes of entering a tenant’s unit, are from 7 a.m. to 7 p.m., all days of the week.

This provision was added so that landlords could show the property during open houses on Sundays and to contractors who start working very early in the morning. It is unclear when Oman’s clients wake up and when they are sleeping, but these are both legitimate business reasons for the definition of normal business hours.

By agreeing to a definition, the parties are avoiding future disputes. The tenant is waiving no rights under the law by coming to an agreement with the landlord as to when entry will be proper. This is a reasonable and valid lease provision.

#4: Provisions Deeming Tenant No Longer
Residing in Unit (¶ 40)
Oman correctly observes that nothing angers a landlord more than when a tenant sublets for a profit. The anger stems from the fact that the Rent Ordinance makes it illegal for a tenant to sublease at a profit. The anger is exacerbated by San Francisco Rent Board rulings that permit this illegal use of the premises, which takes money out of the landlord’s pocket. Because tenants receive enough government subsidies, landlords don’t appreciate a direct giveaway.

Since it is hard to know when a tenant no longer resides in the unit, it is only fair to allow the parties to come up with some guidelines and definitions. And it’s perfectly legal. Because vagueness in the law works to the advantage of tenants, Oman naturally favors a situation where no one knows what’s going on. That way, the Rent Board will decide. We don’t want the Rent Board substituting their intentions and thoughts for those of the parties.

#5: Definition of Nuisance (¶ 31)
The law defines nuisance as anything injurious to health, indecent or offensive to the senses. I think the legal definition is too broad and inadequate. There are many disputes over what constitutes indecent or offensive behavior by a tenant. The SFAA definition refines the legal definition so that these disputes and possibly expensive litigation can be avoided.

Oman apparently knows what a nuisance is when he sees it. He believes the court will know it too. But what can be fairer to the landlord and tenant than agreeing, at the commencement of the tenancy, what conduct will constitute a nuisance? The SFAA lease says that three complaints against the tenant within a 12-month period amounts to a nuisance.

The purpose of the nuisance laws is to protect others from offensive conduct. Other tenants in the building who are complaining are in the best position to evaluate whether conduct is offensive. Ultimately a judge or jury will decide if, in fact, the conduct amounts to a nuisance, so the offending tenant isn’t waiving any rights. SFAA’s lease just provides some nice guidelines.

Concluding Remarks
Oman has made it clear that he is unhappy with the SFAA lease. That means our organization has done its job well. If a tenant advocate is unhappy about our work and is complaining, we did something right.

The authors of the SFAA lease have reviewed Oman’s criticisms carefully and have determined that while the SFAA form strongly represents the interests of landlords, it is not unfair or unconscionable to tenants and that it is perfectly legal and valid. Nothing in the agreement constitutes a waiver of a tenant’s rights under the Rent Ordinance or abridges a tenant’s procedural rights in tenancy litigation.

Ultimately, it is for the courts to decide if there is an infirmity in the SFAA lease. So far, I have seen no court rulings striking down any part of the form. Should the court ever hand down an adverse ruling, the authors will move swiftly to revise the form to protect SFAA members. Until then, SFAA will continue to revise its lease form every time the law changes or a new or interesting idea arises.

SFAA looks forward to input from tenant advocates in the future. Their comments and participation are welcome and helpful. Although we have a complete disagreement on the rights and obligations of landlords and tenants, Oman and I get along just fine. Someday, I hope, he will see the light and come over to our side.

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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 within this article is general in nature. Consult an attorney for any specific problem. Clifford E. Fried is with Wiegel & Fried, LLP, 415-552-8230. Copyright © 2008 by SF Apartment Magazine. All rights reserved.