legal Q&A
Of Tenants and Trash
by Various Authors
Q. I have noticed that my tenants don’t shred their sensitive documents before putting them into the recycling cart. Am I somehow liable if someone goes through the trash and uses the information to steal one of their identities?
A.When someone puts something in a recycling bin, unless there has been an affirmative representation made to them beforehand as to the disposition of the contents, the documents they are placing in it are simply abandoned. No one has a reasonable expectation of privacy in articles thrown out, or recycled, given that the same will be exposed to all kinds of strangers without restriction. Any tenant with a brain should understand that the abandoned documents will be placed at the curb, and you cannot account for their destination or disposal after placement in the recycling bin.
Believe it or not, even in San Francisco, the tenants do have a duty, to some degree, to take care of themselves, and not rely on the landlord for everything. Prudence would clearly suggest that anybody recycling sensitive documents should shred them, and it’s not your job as the landlord to educate the tenants to do so. Moreover, a tenant has no basis for believing that, regardless of when you put out your recycling for pick up, some stranger won’t go into the bin and sift through its contents. The police have been diving through the trash for decades looking for incriminating goodies, all with the blessing of the courts.
So, I don’t believe there is any affirmative duty on your part to notify your tenants that it would be wise to shred documents with sensitive material. On the other hand (there’s always another hand), given the eternal possibility of a landlord being sued, whether or not he or she does something wrong, a little extra preventative doesn’t hurt. If you want that extra security, a notice posted by your recycling bin that sensitive documents should be shredded, and that the bin will be placed at the curb the night before pick up with its contents unprotected, may help prevent any later claims by a tenant.
Of course, like any other practice, once begun the tenants then expect it, and if the posting is taken down and not replaced and a tenant loss is suffered from documents retrieved from the recycling bin, the tenant may feel more entitled to sue. In any case, the result should be the same. In short, although you may elect to give the tenants some friendly advice, you are not required to do so.
—Saul M. Ferster
Q.Two sisters have been long-term renters in two different units in my building, but one sister paid the rent on both units. Now the sister who was not paying rent moved out and the one who pays the rent requested to move another family member into her sister’s unit. Do I have to allow this?
A. Whether or not you have to allow the departing sister to replace herself with someone else depends upon what the rental agreement states. If there is one rental agreement covering both units, arguably the departing sister can be replaced under the replacement roommate provision of the San Francisco Rent Ordinance, which allows a departed tenant to be replaced when there is more than one tenant. In addition, if there is no prohibition against subletting or assignment in the lease contract, the departing sister might successfully be able to argue that the rental agreement does not prevent the new relative from moving in.
With regard to increasing the rent, you probably are able to reset the rent for this apartment, assuming there is not a master lease for both units. Under the Costa-Hawkins Rental Housing Act, a state law, owners may raise rent beyond the allowable limitations of rent control when the original occupant who took possession of the unit pursuant to the rental agreement with the owner no longer permanently resides there. In this situation, the sole original occupant (the rent payer’s sister) announced her departure. If a new family member moves in under the existing lease, rent can be decontrolled, assuming there is nothing in the rental agreement that unifies/combines the rent for both units or otherwise restricts the owner from resetting the rent.
In addition, if the rental agreement acknowledges that there are two separate tenancies, or if there are two separate leases, you could take the position that the departing sister’s move-out terminated her tenancy. Indeed, when a tenant leaves and no one stays behind, the tenancy usually is deemed to be over, especially in instances where the leasehold was month-to-month with no set end date. As such, depending on how this lease is structured, you may simply recover possession of the unit and inform the staying sister that her relative should apply to rent the unit like any other potential lessee.
Therefore, read the lease contract carefully. If there is a separate lease for the departing sister’s unit, it makes no difference if the sister remaining behind in the separate unit paid rent. In this case, the departed sister’s tenancy terminates unless there is no restriction on assigning or subletting the rental unit. Even if the relative moves in, consider raising rent under Costa Hawkins. Finally, make a decision quickly and carefully, as you do not want to be stuck with the new relative at the old rent unless you absolutely have no other option. You should consult with an attorney immediately, as subleasing is a very complicated issue and the stakes are enormously high.
—David Wasserman
Q. I have requested that a tenant remove his items from a common area in my building. So far he has not done so, but he has sent his rent for the month. Can I cash the check or will that waive my right to ask him to remove his things from the common area?
A. When a tenant violates a lawful provision of a rental agreement, the landlord has a right to take steps to enforce that provision. Sometimes, the right to enforce a provision may be waived by the landlord. Typically, to waive a right, the landlord must intend to do so.
Landlords should be aware that tenant advocates often argue that a landlord’s acceptance of rent with knowledge that the tenant is violating a provision of the rental agreement automatically waives the landlord’s right to enforce that provision. This is not necessarily accurate, but this argument may be strengthened with the passage of time; for example, the landlord is aware of the violation for a long period of time, does nothing about it, and continues to collect the rent. So as soon as a landlord discovers that a tenant is violating a provision of the rental agreement, the landlord should promptly take steps to enforce the provision.
In this situation, where the tenant is violating a provision by storing items in the common areas, promptly requesting the tenant to remove the items is appropriate. This should be done in writing. The landlord should object to the tenant’s conduct and make it known in writing that the landlord does not intend to waive the right to enforce the rental agreement. If the tenant does not remove the items, then the landlord should take further steps to enforce the rental agreement, such as removing the items or serving the tenant with a formal notice.
Accepting one or two rent payments while trying to get the tenant to remove the items is probably not a waiver of the right to do so. Nevertheless, the landlord should be cautious about doing so and should consult with an attorney about the rights and risks in doing so.
—Steven C. Williams
The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Saul M. Ferster is a San Francisco-based attorney and can be reached at 415-863-2678. David Wasserman is with Wasserman-Stern Law Offices and can be reached at 415-567-9600. Steven C. Williams is with Fried & Williams, LLP and can be reached at 415-421-0100.