legal Q&A
All Bark, No Bite
by Various Authors
Q. Most of the staff in our rental office is English speaking, though one person is bilingual. When necessary, we explain the lease in Spanish but have the tenant sign an English version. We also provide the tenant with a copy in Spanish. Now some tenants are taking us to court because we used an English lease. What did we do wrong?
A. You did not do anything wrong. If you negotiate primarily in Spanish, then before the English lease is signed you must give a Spanish version that contains all the terms and conditions in the lease to the applicant. Nothing more is required under Civil Code §1632.
—Martin Snitow
Q. What can we do if a tenant gets a dog (we have a no-pet policy) and says he has permission from the previous owner 15 years ago?
A. If the tenant signed a written agreement with a no-pets clause, then you have a good chance of enforcing your policy. The tenant will probably not be able to prove that the prior landlord waived the no-pets clause. Written leases usually provide that the terms may only be modified in a writing signed by both parties. Unless the tenant can produce either the former landlord’s sworn testimony or a signed written modification of the lease that deletes or changes the no-pets clause, then you would be entitled to enforce your policy by serving a three-day notice to cure the breach of covenant or quit. If the tenant does not comply with the three-day notice, then you would be entitled to bring an eviction action.
If the tenant occupies the unit under an oral rental agreement, or under a written agreement that that does not prohibit pets, then your “no-pets” policy is probably not enforceable. If the tenancy is under rent control, you cannot change the terms of your rental agreement to prohibit pets, unless the tenant agrees. Landlords are barred from enforcing most unilateral lease modifications under Section 12.20 of the San Francisco Rent Board’s Rules and Regulations, which was enacted in 1997:
For purposes of an eviction under Section 37.9(a)(2) of the Ordinance, a landlord shall not endeavor to recover possession of a rental unit because of the tenant’s alleged violation of an obligation or covenant of the tenancy, if such obligation or covenant was unilaterally imposed by the landlord and not agreed to by the tenant and either was not included, or is not materially the same as an obligation or covenant in the rental agreement mutually agreed to by the parties. The foregoing shall not apply to: (1) changes in obligations or covenants that are not material; (2) changes in material obligations or covenants required by law or to protect the health, safety and quiet enjoyment of the occupants of the building or adjoining properties; and (3) rent increases or other changes in the terms of a tenancy authorized under the Rent Ordinance and Rules and Regulations.
Based on this regulation, you could not enforce a unilateral change of the lease to prohibit pets, but you could prevent the tenant from keeping a dangerous dog that would threaten the safety of other tenants in the building, or from keeping a dog that barks uncontrollably, which would interfere with the neighbors’ quiet enjoyment. (In one case, my firm caused the tenant to dispose of a noisy exotic parrot because the bird was disturbing the neighbors.)
The industry has seen an increase in tenants attempting to avoid no-pets clauses in their leases by claiming that the animal is necessary as either a service animal to assist with physical disability or a “comfort” animal to assist with a psychological or emotional disability. If the tenant properly asserts a request for accommodation of the disability under federal and/or California law, then you may be required to accommodate the tenant by allowing the pet, even though otherwise the pet would be prohibited under the lease.
While accommodating the disability, you might advise the tenant that he or she will be held responsible for any damage caused by the dog, and you could impose reasonable restrictions related to cleanliness and control of the dog, but you may not increase the security deposit because this could be construed as discriminatory. However, even in these circumstances, you could legitimately object to a dangerous or noisy dog.
—Michael C. Hall
Q. A tenant said that his carpet needed to be replaced. We found it was a bit dirty and had frayed edges—otherwise it wasn’t too worn. We want to remove the frayed edges and reattach the carpet to the threshold. The tenant refused to allow the repair, saying he wants a new carpet. What should we do?
A. To a certain extent, the question is if the old carpet’s condition renders the unit uninhabitable. California Civil Code §1941 lists the standards for a habitable dwelling. The only mention of flooring is in section 1941(h), which states that the dwelling unit must have floors “maintained in good repair.” Assuming the carpet’s condition does not pose a physical threat to the tenant, such as exposed tacks or a pest infestation of some sort for which the tenant was not responsible, it would seem that a merely old carpet would technically comply with the statute. As the statute does not expressly state that a dwelling must be carpeted to be habitable, the carpet’s condition does not seem to impact the habitability of the dwelling.
Secondly, the question deals with an instance where the tenant refuses to allow “necessary or agreed repairs.” Entry into the unit and access to conduct such repairs are normally governed by the lease agreement, which normally reiterates Cal. Civil Code §1954, which allows a landlord to enter a dwelling unit to make “necessary or agreed repairs,” among other reasons. If, after investigating the carpet, you conclude that removing the frayed edges and reattaching the carpet is necessary, the tenant’s failure to allow access for that work could be interpreted as a violation of both the lease and the Civil Code, which would give you cause to serve a Notice to Perform Covenant or Quit and demand that the tenant give you access to conduct these repairs.
If the tenant still refuses the access after the notice’s expiration in three business days, you could feasibly file suit to evict the tenant from the unit.
Notwithstanding all of the above, the practical solution may just be to determine the age of the carpet and whether or not the costs of fighting this issue outweigh the costs of replacing the carpet. If the carpet was brand new when the tenant moved in and the tenant was unreasonably hard on the carpet, it may not make fiscal sense to replace the carpet without holding the tenant responsible for the repairs. However, if the carpet was in questionable condition and/or was an older carpet at the time the tenant moved in, it may be cheaper in the long run to simply replace the carpet.
—Shawn Bankson
Q. My tenant paid rent late. I served a three-day notice and an unlawful detainer. The tenant paid the rent and I took the money for the notices out of his security deposit. He is now moving out and I want to make sure this was a proper deduction. Was I correct?
A. It was incorrect to make deductions for the three-day notice and unlawful detainer out of the security deposit. Security deposit deductions are strictly governed by California Civil Code Section 1950.5. There are four basic deductions you can make under this law: to remedy any default in rent; to cover damages or repair to the unit created by the tenant or his guests, other than normal “wear and tear”; to clean the unit in order to return it to the same level of cleanliness as at the inception of the tenancy; and, if the lease provides, to restore, replace or return personal property or appurtenances, exclusive of ordinary wear and tear.
The costs you incurred in serving a notice and filing an unlawful detainer action cannot be recouped through the security deposit. Your tenant has the right to bring you to small claims court and ask for reimbursement of your
inappropriate deductions.
In small claims court, you would have the burden to show that your deductions were reasonable. Since deducting for the costs of serving a notice is not within the scope of the security deposit law, you would clearly lose.
You would be ordered to pay the tenant the amount of the improperly withheld deposit. Moreover, it is possible that the judge may order you to pay a “bad faith” penalty on top of the deposit. As such, it is prudent for you to immediately refund the moneys kept for the notices, if you haven’t already done so.
—Marina Franco
The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Martin Snitow can be contacted at snitow@aya.yale.edu. Michael C. Hall can be reached at 415-512-9865. Shawn Bankson is with Kimball, Tiery & St. John and can be contacted at shawn.bankson@kts-law.com. Marina Franco is with Wasserman-Stern and can be reached at 415-567-9600. Copyright © 2009 by Black Point Press. All rights reserved.