legal Q&A
Dial "L" for Landlord
by Various Authors
Q. There are no dogs allowed in my building. The other day a tenant came in with a dog. When I confronted him about it, he said the dog was a comfort pet for a visiting friend. (The friend was not in evidence at the time.) What are the rules regarding visitors’ comfort pets? If the tenant’s friend comes to the building and even stays overnight, must the pet be allowed?
A. Service animals to the disabled are not considered “pets” and thus must be allowed entry into your building, regardless of your no-pet policy. Moreover, your tenant is entitled to the full use and enjoyment of his apartment, and that includes having guests visit. If those visitors are disabled and have service animals, then those animals must be allowed to visit the building as well, including overnight visits.
A seeing-eye dog accompanying a tenant’s sight-impaired visitor is something everyone can understand and accept, but it is more difficult to grasp the notion of a service animal when a disability isn’t evident, or if the animal is a “comfort” animal for emotional disabilities, rather than for physical disabilities. California courts have ruled that comfort or therapy animals are “service animals” and thus must be allowed as a reasonable accommodation to a tenant.
However your question is interesting as it is not your tenant with the comfort animal, but rather his visitor. The Fair Housing Act requires that tenants with disabilities be provided with “reasonable accommodations” as needed, in order for them to have an opportunity for full use and enjoyment of their housing, including allowing service/comfort animals. But what is your obligation to “reasonably accommodate” your tenant’s guests with comfort animals?
Since in the eyes of disability rights law, a companion/comfort animal and a seeing-eye dog are viewed the same way, the visitor with his comfort animal must be allowed in your building to visit the tenant. That said, how do you ensure that the visitor’s comfort dog is truly a comfort animal aiding someone emotionally disabled and not just a pet?
In researching this question, no fewer than four inquiries were made to different fair housing agencies (both governmental and nonprofit). None of them provided a straight, unequivocal answer and usually referred me to another agency. That alone should indicate what a tricky question this is. Fair housing discrimination decisions are based on the specific facts of a particular situation, and often there is no clear guidance.
So what can a landlord do? Fair housing law allows a housing provider to ask a tenant for medical verification of a need for reasonable accommodation, such as a service animal. The verification is limited to confirmation that the person is disabled within the meaning of the law and that there is a need for the requested accommodation. Note, however, that the landlord provider is not entitled to any information about the nature of the disability.
The problem in your situation is that a landlord doesn’t have a relationship with the tenant’s visitor. Most agencies contacted advised the owner to just let it go and to take the tenant’s word that the visiting animal is the guest’s comfort animal. These agencies felt the primary issue is that a landlord should not invade the privacy of a person with a non-evident disability in asking for verification, when they wouldn’t necessarily ask a person who was obviously disabled for verification. Another agency, however, stated that the landlord has an obligation to his other tenants to make sure the pet is, in fact, a legitimate service/comfort animal (in case other tenants had issues like pet allergies), and that a respectful inquiry to the tenant to get a letter from his visiting friend would be appropriate.
As such, if the landlord has reason to believe that the animal is not truly a service/comfort animal (for example, the animal is never in the presence or control of the person who claims it as their service animal), or if other tenants are questioning the presence of the pet in the building, it seems reasonable that a landlord could attempt to open a friendly dialogue with the tenant, and see if the tenant’s visitor wouldn’t mind providing a verification letter. That said, should the visitor refuse to provide any verification, it is not recommended that the landlord take any action against the tenant or refuse the visitor access to the building when they arrive with the pet. At that point, it would be wise to contact an attorney and discuss your options.
—Marina Franco
Q. My original occupant has a terminal illness and is now claiming that the subsequent occupant is his domestic partner with power of attorney. The subsequent occupant was properly served with a 6.14 notice and has not been allowed to submit rent checks in his name. The original tenant now wants me to communicate directly with the subsequent occupant regarding apartment business in order to fully use and enjoy his residence. How will this affect getting the unit back or raising the rent when the original tenant vacates?
A. If your tenant truly has a terminal illness, his request that you communicate apartment business to his domestic partner may be a legitimate request. With the proper precautions, this can be done without losing your rights. First, your tenant has told you that the subsequent occupant is his domestic partner. That should be provable by a certificate issued by the city. You should ask to see it. Next, you should ask to see the Power of Attorney. The nature and extent of the subsequent occupant’s powers should be set forth.
You have already served the subsequent occupant with a 6.14 notice. That notice, if it is the standard form, contains the following language: “All new purported Co-Occupants or Subsequent Occupants are not considered Original Occupants under subsection (a) of Section 6.14 of the San Francisco Residential Rent Stabilization and Arbitration Board’s Rules and Regulations and will not be considered Original Occupants under Civil Code Section 1954.53(d). In the absence of a written agreement to the contrary, Landlord disapproves of, and objects to, the occupancy and purported tenancy of all such individuals.” That language should establish that the subsequent occupant is not an approved subtenant. The fact that he may be a domestic partner of your tenant, and that you have no choice under the law but to permit him to reside in the premises, or that he may be authorized to conduct business on behalf of your tenant, does not mean that you have to approve him.
Finally, the danger in communicating with a subsequent occupant about tenancy matters is that it may appear to a third party that you are assuming the subsequent occupant as your tenant. In other words, by these acts you are waiving the statements in your 6.14 notice that the subsequent occupant is unapproved. But the courts have said that “Waiver always rests upon intent. Waiver is intentional relinquishment of a known right after knowledge of the facts.” Therefore, a letter from you to your tenant and the subsequent occupant indicating that you are dealing, or will deal, with the subsequent occupant only because the tenant has requested it because of illness, does not constitute a waiver of your objection to the presence of the subsequent occupant, and your reservation of all your rights with regard to that person when the original tenant vacates, including the right to ask the subsequent occupant to go.
In fact, since you are being asked to change your conduct in order to accommodate the tenant, the tenant and the subsequent occupant should be willing to sign a statement that your communications directly with the subsequent occupant do not waive your rights with regard to him. If they will not sign such a statement, they are playing games with you, and at that point, I would refuse the request to deal with the subsequent occupant.
—Saul M. Ferster
Q. My downstairs tenant is complaining about the noise coming from the upstairs tenants. He says they are not being purposefully disruptive, but it is an older building and the noise of creaking floors from them walking around is driving him crazy. What is my responsibility?
A. The focus of this common scenario faced by landlords is determining the extent of a landlord’s obligation in regard to noise created by the upstairs tenants’ normal use of the dwelling.
In California, every lease or rental agreement, whether oral or in writing, contains an implied covenant of quiet enjoyment. By renting the property, the landlord promises that the tenant will not be disturbed in his possession by the landlord. Originally, this covenant was meant to protect the tenant only against physical interferences with the tenant’s possession of the dwelling. Over time, this covenant has evolved to protect the tenant against acts or omissions of the landlord that interfere substantially with the tenant’s right to use and enjoy the property.
Today, a breach of the covenant of quiet enjoyment can be caused if an interference occurs due to the actions of someone other than the tenant or the landlord and the landlord fails to take reasonable action to stop the interference. The implied covenant of quiet enjoyment requires that the landlord act reasonably.
Here, a reasonable response by the landlord calls for an identification of the actual cause of the disruptive noise and then taking appropriate remedial action. It is advisable to identify with specificity the noise that the downstairs tenant wants stopped and how the noise is being made, if possible. This may require a visit to the tenant’s unit to observe the disruptive noise firsthand. If the landlord concludes that the noise is being generated by the upstairs tenants’ use, then the next step is to make the upstairs tenants aware of the disruption in as friendly a manner as possible.
A suggestion to place area rugs over any uncarpeted high traffic areas may relieve the problem. As a protective measure, when leases are signed in the future, it might be beneficial to require that tenants utilize area rugs to cover hardwood floors. The basis for this new policy would be twofold: to protect the property and to reduce the transmission of sound through the floors.
After the investigation and communication with both sets of tenants, by way of a written letter, it is recommended that the landlord formally acknowledge the downstairs tenant’s complaint; summarize the action that was taken in response to the complaint; and include any oral concessions reached with the upstairs tenants, such as an agreement to walk softly or utilize area rugs to reduce the noise. Should the landlord’s responsiveness be questioned later, a concise written letter to both sets of tenants serves to substantiate the landlord’s reasonable actions taken under the circumstances.
The key to preventing landlord/tenant (or tenant/tenant) issues from spiraling out of control is proactive responses coupled with effective communication. In this instance, there may be nothing that the landlord can actually do to stop the floor from creaking when the tenant walks around. However, to fulfill the legal obligation, the landlord should take reasonable actions to determine the true cause of the problem; communicate with both tenants; and then document the response with a letter to everyone involved.
—Ronnie Gipson
Q. My original master tenant has given me notice. What is my legal obligation toward his subtenants? Over the years, I have served 6.14 notices and not accepted rent from them. Can I ask them to vacate at the same time as my original tenant?
A. You have no contractual obligation to the subtenants. By definition, the subtenants’ contractual obligation is with the master tenant. The master tenant seeking to terminate the tenancy is obligated to give proper notice and to return the unit to you in vacant condition. If the master tenant vacates the unit, leaving subtenants in possession, then the master tenant has not effectively terminated the rental agreement and would remain liable to you for compensatory damages for breach of contract.
The subtenants may be under the impression that they may keep possession of the unit and simply get a new roommate to replace the departing master tenant. If so, they are mistaken. Assuming that you have notified them that they are not approved occupants, either by serving them with 6.14 notices or in some other manner, then they should expect to vacate the unit at the same time as the master tenant. If they remain in possession after the master tenant has vacated, then you may serve a Three-Day Notice to Quit pursuant to Code of Civil Procedure section 1161 subdivision 4 and San Francisco Administrative Code
section 37.9(a)(7).
If you choose, you may lease the unit to the persons who are currently subtenants. You could solicit standard rental applications and vet the applications according to your customary procedures. If you approve the applications, you could execute a new rental agreement with the remaining occupants for whatever rental amount you agree upon, based upon current market conditions, and without reference to price control under the Administrative Code. It is not necessary to serve a rent increase notice, since the subtenants do not have a contractual relationship with you and have been paying rent only to the master tenant.
In short, the new lease and the new rent could become effective immediately after the date upon which the master tenant vacates and turns over possession of the unit to you. If you do not approve of the occupants based upon bad credit, insufficient income or some other valid basis, then you could compel the occupants to vacate as described above.
It is not clear from the question how long the master tenant has had the lease. Over the years, there have been several amendments to Rent Board Rule 6.14, and there have been numerous versions of the 6.14 notice in circulation. The most common version indicated that the 6.14 occupant was not approved and that the landlord would have the right to demand possession or raise the rent to market value upon the departure of the last original occupant. You should reread the 6.14 notices and, if there are any ambiguities or questions, consult your attorney.
Regrettably, this has become a very complex area of law and there are many pitfalls that could be avoided with planning. For example, it may well be appropriate to notify the master tenant in writing that you expect the unit to be delivered vacant, thereby hopefully avoiding any nasty surprises for the subtenants.
The Rent Board has recently issued several decisions that have the practical effect of undermining landlords’ rights under Rule 6.14, Rule 1.21 and the Costa-Hawkins Act. As a practical matter, the result has been to create de facto vacancy price control, despite the clear prohibition of vacancy price control under the Costa-Hawkins Act. For these reasons, the trend is to abandon use of 6.14 notices altogether. The SFAA has developed a new form of notice to serve upon unapproved subtenants during the master tenant’s occupancy that is intended to help avoid some of the pitfalls for the landlords. See the article on page 32 of this issue for more information.
—Michael C. Hall
The opinions expressed in this article are those of the author, and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Marina Franco is with Wasserman-Stern and can be contacted at 415-567-9600. Saul M. Ferster can be contacted at 415-863-2678. Ronnie Gipson represents landlords in complex litigation matters and class actions against habitability claims, violations of the San Francisco Rent Control Ordinance and violations of applicable state law. He can be contacted at 510-444-6800. Michael C. Hall can be contacted at 415-512-9865. Copyright © 2009 by Black Point Press. All rights reserved.