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The Fine Print
by David Wasserman
Once again, a devoted panel of volunteer attorneys and property managers convened in the fall of 2009 to draft revisions to the SFAA Residential Tenancy Agreement. After hard work and intense debate, several notable improvements have been implemented into the 2010 SFAA Lease. The good news is that the lack of substantive legislative changes on both the local and statewide levels made this year’s round of edits short and relatively minor. Yet even with little overall alteration, members should still take note of the improved additions.
Jo Biel inserted clarification in paragraph 4, RENT, stating that tenants cannot use restrictive endorsements on the face of a check so as to allocate payments in a certain manner. This issue has arisen in eviction litigation when tenants will write on their check that rent is to be applied for a certain month, and the landlord has allocated payment for a different time period.
In paragraph 14, ASSIGNMENT AND SUBLETTING, Saul Ferster clarified
the language in subparagraph A, which prohibits subletting and assignment under any circumstance, to acknowledge that local law may create exceptions.
For instance, in San Francisco, owners must usually allow subletting for replacement roommates or for qualified family members.
Eric Andresen reinserted some previously deleted language in paragraph 30, TERMINATION, that accomplishes two objectives. First, tenants are once again explicitly required by the lease to pay rent not only through the period of time set forth in the notice of termination of tenancy, but also through the date they actually vacate, should that event occur later. Also, the new lease clarifies that “turning in keys” shall constitute legal surrendering of the rental unit.
Curtis Dowling cleaned up the NUISANCE provision, paragraph 32, to more clearly state that a nuisance does not have to be three complaints, but could constitute one serious offense. The prior language could lead one to believe that a nuisance occurs only when three verified complaints have been lodged. Obviously, the commission of one egregious and offensive act can provide a ground for termination of the tenancy.
The committee also added a provision that will hopefully give owners more latitude to dispose of personal property left behind when a tenant vacates. State law imposes a series of storage, notification and occasional auction requirements when a tenant’s personal possessions are left in a rental unit after a tenant departs. The new lease contains an agreement whereby the tenant acknowledges that anything left behind is refuse and of no value, thereby allowing the landlord to immediately dispose of these possessions without incurring the cost of storage and auction. Please note that SFAA does not know, at this time, whether this lease provision absolves a landlord from liability of the state law governing abandoned tenant property, so please consult an attorney before destroying items left behind, even if the 2010 lease was signed by the tenant.
There is also a new trash and recycling addendum for use in San Francisco. As many of you already know, two new local laws were implemented in 2009. One law requires that all trash and recycling containers be kept off of the sidewalk and street areas, except during collection periods. The second law mandates the use of separate trash, recycling and compost bins. The trash and recycling addendum outlines general requirements of both laws and requires that tenants comply with these mandates.
The last major change, proposed by Clifford Fried, adds a definition of “original occupant” to the lease. In rent controlled jurisdictions, defining an original occupant is crucial, because state law allows rent to be readjusted when the last original occupant no longer permanently resides in the unit.
Unfortunately, neither state nor local law really defines the term. As such, our new lease will clearly set forth who is an original occupant: “An original occupant can only be the person or persons signing the lease and taking occupancy of the unit. The parties agree that any other person cannot be an original occupant… including, but not limited to, spouses, domestic partners, partners, family members, or people who were minors when they first took occupancy.” Hopefully, courts and rent boards will grant deference to this definition and allow unlimited rent increases when the last original occupant, as defined by an agreement between owner and tenant, vacates.
Other minor edits and typographical corrections were also made. Please note that all of your comments and suggestions were carefully considered and, in many cases, integrated into the new lease. Please continue to send in your feedback, and please do so before September of 2010. With your opinions, and the help of our volunteer attorneys and property managers, we are able to achieve the best possible product for use in the industry.
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. David Wasserman can be contacted at Wasserman-Stern Law Offices, 415-567-9600. Copyright © 2010 by Black Point Press. All rights reserved.