Legal Q&A
Locked Out
by Various Authors
Q. I was already in the process of evicting a tenant for nonpayment of rent when he requested an accommodation for his severe depression. What should I do?
A. When a tenant suffers from a qualifying disability and requests a reasonable accommodation for that disability, the landlord may be required to comply with the request. However, the tenant must first establish that he suffers from a qualifying disability. The landlord may request documentation from the tenant’s physician to establish the disability. Severe depression would be a qualifying disability and establish the need for an accommodation.
The tenant must also actually make a request to the landlord for something that would be a reasonable accommodation for the disability. Determining what may be a reasonable accommodation is very subjective and should be evaluated on a case-by-case basis. Nevertheless, a tenant’s request to be excused from paying rent altogether would not be a reasonable accommodation. Accordingly, a tenant’s disability and request for accommodation would not excuse the tenant from paying rent and should not prevent a landlord from seeking to recover possession of the unit when the tenant does not pay the rent.
—Steve Williams
Q. At what point during the eviction process can I change the locks on the apartment doors?
A. After a drawn-out eviction trial, there is no better feeling than winning your case and having a judgment granting you possession of your apartment. Sometimes the judgment will also include monetary awards, such as back rent or attorney’s fees. But realistically, the most valuable part of the judgment is possession of the apartment. Your apartment is the important asset you want emptied of the old tenant as soon as possible, so that you can rerent to a new tenant who can actually pay the rent.
Many landlords believe a judgment for possession means that they can immediately change the locks. This is incorrect and could subject a landlord to a costly wrongful eviction lawsuit by the soon-to-be ex-tenant. While the judgment means the court has ordered that possession be returned to the landlord, the landlord is not the one entitled to carry out the order. That role belongs to the San Francisco County Sheriff because the landlord is not actually entitled to possession of the rental unit, and by extension, cannot change the locks, until after the sheriff has removed the tenant, or if the tenant voluntarily vacates prior to the eviction date.
The process for regaining possession and changing the locks to the apartment is as follows. After a landlord wins her unlawful detainer lawsuit and obtains a judgment for possession, she must file a Writ of Possession for Real Property with the court. This is usually done on the same day the judgment is granted. The writ is a document that actually orders the San Francisco County Sheriff to enforce the judge’s decision to physically remove the tenant from the apartment and return possession to the landlord. Once the writ has been filed with the court, it is then brought to the sheriff, who schedules the actual eviction. It takes approximately two to three weeks from the delivery of the writ to the actual day the sheriff comes to the property to remove the tenant. Part of the reason for this delay is because, in San Francisco, the sheriff only performs evictions on Wednesdays. The tenant is legally allowed to remain in the property during this time period.
The sheriff will post a notice on the tenant’s door approximately five days before the actual eviction date, giving the tenant the opportunity to vacate voluntarily. If the tenant moves out of the apartment during these five days, and has surrendered the keys to the landlord, it is usually safe to call the sheriff to cancel the eviction, and change the locks. However, if the landlord isn’t sure if the tenant has left, it is wiser to proceed with the actual sheriff’s eviction.
If the tenant has not vacated by the eviction date, the sheriff returns and will physically remove the tenant from the apartment. It is strongly recommended that the landlord and a locksmith be present when the sheriff arrives on the eviction date. After the sheriff has removed the tenant from the apartment, the landlord can change the locks without repercussion, as now possession of the premises has been officially restored to the landlord.
—Marina Franco
Q. Does a foreclosure on a rental property wipe out an existing lease in the same way that a junior lien is wiped out? And how is the security deposit accounted for after a foreclosure sale?
A. The rules of priority in recording and foreclosures (trustee’s sales) are complicated. A lease is generally deemed subordinate to a loan and deed of trust if the lease was created after the deed of trust was recorded. A trustee’s deed conveys the absolute legal title to the purchaser, as against all claims subordinate to the deed of trust, but subject to all prior rights, interests and titles. If subordinate, the lease is “wiped out” at a foreclosure sale. But where a lease was signed and recorded before the foreclosed deed of trust was recorded, the deed of trust is junior to the estate of the tenant. The lease remains intact.
And where the lender under a deed of trust had notice of an unrecorded lease at the time the deed of trust was recorded, the deed of trust is junior to the lease. Again, the lease remains intact. But where a trust deed to secure a loan is taken without notice of a lease of the premises, the tenant’s interest under such lease is foreclosed by the foreclosure of the deed of trust.
The lender may have notice of an unrecorded lease in one of three ways. When a lender actually has information or knowledge of a conflicting interest, claim or right in real property, the lender is said to have “actual” notice. Whenever a person has knowledge of certain extraneous facts, which of themselves do not amount to actual notice but which are sufficient to put a reasonably prudent person upon inquiry respecting a conflicting interest, and the inquiry, if made with reasonable care and diligence would lead to knowledge of the interest which really exists, then that person is also charged with “constructive notice” of the interest. A person’s use, occupation or possession of real property, which is inconsistent with record title, is “implied notice” that the occupant may have an interest in it. The occupation of property by a tenant constitutes notice of his interest, and the interest of a subsequent buyer or lender is junior to the possessory rights of the tenant.
Although rare in residential leasing, where a lease contains a subordination clause or where the tenant has executed a subordination agreement, the lease is deemed subordinate and “wiped out” by a foreclosure sale.
All of these rules regarding priority and being wiped out become meaningless in eviction and rent control jurisdictions such as San Francisco. In the case of Gross v. Superior Court, the court held that after a foreclosure sale on rent controlled property, the purchaser or subsequent owner cannot evict without “just cause” or raise rent beyond the limits imposed by the rent law. So even if a lease is wiped out, the tenant may still be protected by the local rent law as San Francisco’s rent laws do not list a change in ownership pursuant to a foreclosure sale as a ground for eviction.
The purchaser at a trustee’s sale is not immediately entitled to demand a transfer of a security deposit and cannot sue to enforce a transfer. A purchaser at a trustee’s sale is liable to a tenant for the return of a deposit when the foreclosed borrower/landlord fails to deliver the deposit to the purchaser or lessee.
If the purchaser becomes obligated to return a deposit to a tenant, and no deposit was ever transferred by the foreclosed borrower/landlord, the purchaser might then be able to seek recovery from the foreclosed borrower/landlord. The problem for the purchaser at the sale is the lack of accounting for deposits. Tenants may recover deposits in small claims court based upon their own testimony that a deposit was paid and never returned. On the other hand, the purchaser at the foreclosure sale will have little or no evidence to show that the deposit was, or should not be, refunded.
—Clifford E. Fried
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. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Steve Williams and Clifford E. Fried are with Wiegel and Fried, LLP and can be contacted at 510-625-0100. Marina Franco is with Wasserman-Stern and can be contacted at 415-567-9600. Copyright © 2010 by Black Point Press. All rights reserved.