the other side
Focus Forward
by J. Wallace Oman
More and more these days, tenants are videotaping the proceedings when landlords, managers, contractors and other landlord agents enter rental units. This trend has been facilitated by the huge reduction in the cost of videotaping equipment and the ever-increasing use of such equipment in public and private settings, such as police squad cars and interrogations, city streets (Tenderloin spycams), freeway toll stations, private and public buildings, national forests and parks (with “critter cams”), and the like.
Sophisticated landlords and their agents do not mind the videotaping because they are acting legally and properly, and they understand that the videotaping will only preserve evidence that would support their propriety in the event of a subsequent dispute. It is only the landlords and their agents who are caught up in outmoded ways of relating to tenants—or who are up to no good—who are upset by the videotaping.
A Tale of Two Cities
This article tells a tale of two cities. The first city is a modern city with much affordable, properly maintained residential rental housing. It is a prosperous city and relations between landlords and tenants are quite harmonious. When the units are vacated, savvy landlords and their agents always carefully inspect the units and make any necessary repairs, and they take photographs and make videotapes of the units to preserve evidence of their good condition. Likewise, at the start of their new tenancies, savvy tenants always take photographs and make videotapes of the units before they move in their furniture, to obtain a benchmark of the conditions.
When defective conditions arise, as they do inevitably, whether from normal wear and tear, unusual problems such as plumbing or roof failures or the tenants’ failure to take proper care of the units, the tenants quickly report the problems in writing to the landlords and their agents, and the landlords and their agents quickly respond, inspect the defective conditions and repair them.
Usually the tenants (and the landlords and their agents with the tenants’ permission) take photographs of the defective conditions, both before and after the repairs. The landlords assume the cost of repairs for defects due to normal wear and tear and from causes not stemming from improper tenant activities, and the tenants willingly pay for repairs of defective conditions caused by their improper activities. Landlords and their agents do not use a proper entry as an excuse to snoop and inspect for other nonobvious (and nonreported) defective conditions, at least not without the prior permission of the tenants.
This is the first city, as harmonious a city of landlords and tenants as is possible given their different economic interests.
Then there is the second city, the one that is the focus of this column. Although it has many residential rental units, it has a paucity of affordable rental housing, and those units that are affordable usually have many defective conditions and code violations. Because it is a rent controlled sellers’ market, the landlords can charge high rents, and they seldom get asked to make repairs of minor problems. When they are asked to make repairs, they resent it, especially if the repairs are not major ones like roof or plumbing leaks where the buildings would be jeopardized were the repairs not promptly reported and repaired.
Landlords are constantly hoping that their long-time tenants will move out, so that the landlords can raise the rents for new tenants. More than a few landlords, either because they are just plain greedy or because they resent being forced to subsidize below-market rents of tenants who sometimes have more wealth than they do, actually take actions, both legal and illegal, to drive out the tenants to obtain vacant units.
Aggressive enforcement of lease conditions is one of the methods that landlords use to effect the eviction of tenants. Some landlords make excuses to justify entries into rental units to inspect for “just causes” to evict the tenants. Some even hire contractors to enter units, ostensibly to make repairs, but in reality to make the units uninhabitable to the tenants, from “construction” noise, dust and debris, dismantling of the appliances and destruction of habitable space. Tenant advocates call this “constructive eviction through destructive construction,” or just “construction eviction.”
There is a virtual civil war, or class war, in this second city. Residents of the city joke that virtually all the city’s units are under surveillance, either by OMI-displaced tenants who suspect that the designated evicting owners or their relatives will not really reside in the units, Ellis Act-displaced tenants who suspect that the owners are secretly rerenting the units, or landlords who suspect that the tenants really have their principal places of residence elsewhere.
In this tense environment, if a tenant knows that a landlord is trying to find a ground to evict the tenant, unit entry by a landlord becomes a dangerous event. But in this environment of conflict, there are also more than a few tenants who are looking to find reasons, or even to manufacture reasons, to sue landlords. The good and responsible landlords in the city, who only want to make prompt repairs to maintain their property, are still fearful of being set up for lawsuits by the bad tenants.
Some long-time landlords and managers in this city are accustomed to having great power over their tenants because they’ve had it for years. The thought that tenants might videotape them as they inspect units and make repairs is anathema to them. With that level of tension, disputes are more likely to arise between tenants and landlords and their agents. People are so on edge they find it very difficult to overlook the peccadilloes of the others, often because their attorneys, having seen so many bad actors on the other side, often feel the need to warn them to prepare for the worst.
A Case in Point
I see such tense situations all the time. For example, just recently I learned about a case where a landlord and his manager, believing that the tenant was a subsequent occupant and not an original occupant, and upon receiving reports from a repair person that the tenant was not properly maintaining the unit, unilaterally scheduled an entry by the manager and an inspector. But because of the recent history, the tenant feared that the landlord and manager were looking for ammunition to evict him. The manager informed the tenant that he (the manager) would be taking photographs.
The tenant’s lawyer advised the tenant to have witnesses and a camcorder for the inspection. At the request of the manager, the tenant also prepared a list of the defective conditions to hand deliver to the manager at the time of the entry.
Unfortunately, at the time of the first scheduled entry, the manager and inspector didn’t arrive. When the tenant called the manager to inquire if the manager was coming, the manager merely said that his inspector got hung up and that the entry must be rescheduled. The manager never apologized for the inconvenience he caused the tenant and the disrespect that he showed the tenant by not calling to say that the entry needed to be rescheduled.
Then the tenant called the manager on the morning of the rescheduled inspection (scheduled to occur in the early afternoon) to confirm the entry time and duration and to obtain the identity of the persons who would be entering. (A tenant
is legally entitled to know the identity of any person who will be entering the tenant’s dwelling.) After confirming that he (the manager) and his inspector would be entering, and that he would be taking photographs, the manager agreed to photograph only the defective conditions and not to photograph the tenant or his personal property. At this point in the conversation, the tenant informed the manager that the tenant would have some friends in attendance, as well. The manager said that the tenant’s friends could be in the unit but they could not be observers of the inspection. The tenant then said that they would be videotaping the inspection. The manager became irritated and told the tenant that, because he was “not a tenant” (even though the landlord had served a 6.14 notice on the tenant), he could not videotape he inspection by the manager.
The tenant’s attorney then contacted the landlord’s attorney and explained that the videotaping was to be done defensively and that he was not looking for reasons to sue the landlord. He also offered a copy of the future videotape to the landlord’s attorney (but, of course, at the landlord’s expense for duplication).
It was fortunate that the landlord’s attorney and the tenant’s attorney previously had many cases against each other and had found that they could litigate quite civilly with each other. Their clients benefited from this cordiality and civility. After quickly calling the landlord, the landlord’s attorney called the tenant’s attorney back and explained that the landlord had no problem with the tenant videotaping or having witnesses to observe the entry and hadn’t been aware that the manager was attempting to impose such prohibitory conditions. The landlord’s attorney and the tenant’s attorney both agreed that the videotaping would deter trouble, because each would instruct their clients to behave properly, as if they were being watched by a judge or jury (which they well could be if the dispute became more intense and led to litigation in which the videotape became admissible evidence).
When the manager actually appeared for the inspection, he was a bit late. (The window for the manager to enter was between 1 p.m. and 2 p.m., but he did not appear until about 2:10 p.m.) The manager came with the inspector he had mentioned to the tenant, who turned out to be a regular maintenance person for the manager. The tenant then asked for a business card, but the inspector said he had none. The tenant handed the inspector a job site sign-in card to provide pertinent information besides his name, like his business address, his business telephone and his business license number. The manager instructed the inspector not to complete the job site card and stated that, if the tenant insisted, he and the inspector would not enter to conduct the inspection. The tenant did not want to have that level of conflict, so he yielded and said he would not require the completion of the job site card.
The actual inspection only lasted about five minutes. The manager was clearly angry. He refused to accept the list of defective conditions, which the tenant offered him, even though the manager had previously requested it, and he told the tenant that he should send the list to the landlord’s office. The manager took photographs of the tenant and his observers, even though he had promised that he would not. In short, the manager committed an invasion of privacy.
When the tenant’s lawyer had prepared the tenant for the entry and inspection, the tenant’s lawyer did a role-play with the tenant and suggested different types of videotaping that could be done. First, the tenant’s lawyer suggested that the videotaping start from the time that the doorbell rang, to capture the interaction at the door. He also suggested how the tenant could introduce the participants at the door and could explain the procedures and the ground rules to be followed during the videotaping. The tenant’s lawyer then explained how, if the manager and the inspector were cooperative, the tenant could lower the camcorder and not videotape every minute of the entry, but rather could just tape the defective conditions being inspected and discussed by the participants. But he also explained how, if the manager or inspector were uncooperative or contentious, the tenant could and should carefully videotape the entire entry, from start to finish.
The manager apparently wanted to flex his muscles and show his power, or perhaps he even wanted the tenant to grovel at his feet. Maybe he was chaffing at a perceived loss of face by being overruled by his landlord boss about the observers and the videotaping. He certainly did not like being made to be accountable for any misbehavior by being videotaped. His attitude is especially ironic because he has installed security cameras throughout the building and the elevator, and has no reluctance about monitoring all the tenants in the building 24 hours a day.
The manager’s boss, the landlord, seems to be more sophisticated and reasonable than the manager, so perhaps he will tell the manager to calm down. Meanwhile, the tenant has the videotape and the potential testimony of the three witnesses. The tenant had worked very hard in advance of the entry and inspection to clean up his dwelling, so it is very possible that, despite the manifestations of a low level of conflict between the tenant and the manager, a major legal dispute has been prevented. We will see what comes of the entry by the manager and his inspector.
I encourage all my tenant clients to routinely videotape entries by landlords and managers, and the latter to seek and receive permission from the tenants to digitally photograph any defective conditions needing repairs that they observe (but to agree and comply with their agreement not to photograph the tenants or their observers or the tenants’ personal property). As part of the ground rules, the landlords and managers could agree to discuss defective conditions, painting a verbal picture of them (an audio to go with the video) and explaining the history, causes or suspected causes of the defective conditions (if known), and the probable fixes. The participants could agree to disagree on tape if that occurred.
If, as I hope, the entries are routine and nonthreatening to the tenants, and are merely for repair inspections and repairs, then the videotaping by tenants can be done in a nonconfrontational way, with minimum taping of the faces of the participants and maximum taping of the potential repair items being inspected.
The landlords, managers and their agents (employees or contractors) would willingly sign job site sign-in cards provided by the tenants to log the entry participants; they would not be threatened by these routine requests.
But if the tenants fear that the entries are being performed to lay the groundwork for an eviction attempt, then the tenants should tape the entire entry and all the landlords and their agents. Such a tape can be excellent evidence in a subsequent unlawful detainer proceeding or other litigation. Under Civil Code §1940.2, a landlord who commits a significant and intentional violation of Civil Code §1954 for the purpose of influencing the tenant to vacate the tenant’s dwelling is liable to the tenant for a civil penalty of up to $2,000 for each violation. More and more, tenant attorneys are beginning to sue landlords (and even, when warranted, their attorneys) for such invasions of tenants’ privacy.
The information contained in this article is general in nature; consult the advice of an attorney for any specific problem. J. Wallace Oman is a San Francisco attorney specializing in tenant representation. Before that, for almost 20 years he was a staff attorney with the local, federally funded legal services program. He is a co‑author of California Eviction Defense Manual, Second Edition (CEB California Continuing Education of the Bar 2008). He can be reached at walloman@aol.com. Copyright ©2009 by J. Wallace Oman and SF Apartment Magazine. All rights reserved.