legal Q&A
The Case of the Temporary Tourist
by Various Authors
Q. I just found out that my tenant is renting out her unit on a vacation rental website. What should I do?
A. San Francisco is a world-class tourist destination. The advent of internet vacation rental sites has allowed owners of San Francisco homes and condominiums to capture a portion of the city’s tourist dollars. With the coming of the America’s Cup, the demand for private vacation rentals will only increase.
The private rental of homes and condominiums to tourists has become a hot-button issue in San Francisco, pitting homeowners, city planners and taxing authorities against each other. However, ignored in this public debate is a likely larger underground market, in which tenants profit by subletting their apartments to tourists. On that front, landlords must stand up for themselves using the private remedies available under the unlawful detainer statutes.
Ironically, the city has provided a potentially powerful remedy to landlords. That remedy is a Three-Day Notice to Quit for Illegal Use under the San Francisco Apartment Unit Conversion Ordinance. The ordinance’s applicability to tenant misconduct is not obvious.
On its surface, the ordinance appears to only target apartment owners by giving the city and tenants various civil remedies against landlords who rent apartments on a less than monthly basis. However, the ordinance also makes it a misdemeanor crime for an owner or a tenant to rent, or advertise, an apartment on a less than monthly basis.
This argument is more than theoretical. In Trophy Properties XV, LLC v. Case, this author obtained a judgment of eviction based solely upon a tenant’s violation of the ordinance. The court granted the judgment without trial based upon copies of the website advertisements and a declaration from the resident manager who witnessed tourists going in and out of the tenant’s unit.
All good cases begin with good evidence. If a landlord suspects a tenant of subletting to tourists, the landlord should gather evidence of this use. The tenant has probably provided the best evidence in the form of internet advertisements. The advertisements often contain the general location of the apartment building, the names of the host, photographs of the unit and reviews by travelers. The landlord should print out copies of these websites. The landlord should also ask friendly tenants and resident managers to document any obvious signs of a tourist use in the building.
Landlords with written leases prohibiting subletting also have the option of serving a Three-Day Notice to Cure or Quit. Of course, this option requires the landlord to provide the tenant with an opportunity to cure. As such, any such notice should contain specific cure language requiring proof that the tenant has canceled all pending reservations and terminated all contracts with the internet vacation rental services.
Most San Francisco laws give rights to tenants at the expense of landlords. In the case of the San Francisco Apartment Unit Conversion Ordinance, the city has given landlords a tool to prevent tenants from profiteering in violation of local law. Landlords should consider using this tool in the face of the underground vacation rental market created by the internet.
— Edward Singer
Q. What are tenants’ responsibilities when it comes to “emotional support dogs”?
A. This question can be interpreted in at least two different ways: what is the tenant responsibility with regard to obtaining consent for an emotional support dog, and what is the tenants responsibility regarding the care and maintenance of a support dog in the rental unit.
As to the first responsibility, the tenant has to provide the landlord sufficient justification for the landlord to permit an emotional support dog despite a clause in the tenant rental agreement. (Absent a no-pet clause, of course, the tenant is free to have a dog as a mere pet with no justification required.) The burden on the tenant to establish the right to an emotional support dog is simply to provide the owner with evidence that because of some disability, physical or mental, the tenant requires an emotional support dog in order to fully utilize and enjoy the benefits of renting the apartment.
Generally, this evidence is provided by way of a letter from a doctor or psychiatrist treating the tenant. Most letters give only a general description of the reason why the emotional support dog is necessary (for example, the tenant suffers from severe depression which would be ameliorated by the presence of an emotional support dog), but they do not detail the specifics of the tenant’s medical condition, and there are privacy concerns as to the amount of detail that is required. Generally in the cases one sees coming from the courts, the issue of the degree of detail that need be given the landlord is not addressed.
Where courts are forced to balance equities and rights between competing interests, they will usually find a reasonable middle ground. I believe the same holds true in this case. Once the landlord has been given enough information by the psychiatrist or doctor to ascertain that the tenant has support for the claim of a reasonable accommodation for the emotional support dog, the landlord is not entitled to unnecessary further intrusive and invasive detail concerning the tenant’s condition.
On the other hand, the burden is indeed on the tenant to prove the need for the animal, and if the doctor’s assertions are too vague to establish that a disability exists, or that the desired animal will assist the tenant to have the full benefit of the housing rental, the landlord should be able to challenge it. Care needs to be taken, however, since both state and federal laws may view unreasonable challenges or conditions as discrimination based on tenant disability, which can have severe financial consequences for the property owner.
I suspect, however, that this question really relates to the tenant’s responsibilities once the support dog is acquired and present in the building. At this point, the tenant’s obligations are pretty much the same as the tenant’s obligations would be with a mere pet, with certain exceptions. The tenant may not be required to sign a pet agreement in order to have an emotional support dog, nor may the landlord require a pet deposit. Emotional support dogs are viewed, in a sense, as a medical appliance, and not a pet.
I find it most helpful, when trying to think about what would and would not be permissible regarding emotional support dogs, to conceive of it as a seeing-eye dog. Very few of us would place excessive restrictions on the ownership or use of a seeing-eye dog possessed by a blind tenant. To the extent that restrictions would not apply then, they most likely do not apply to emotional support dogs either.
The accommodation that the landlord need give the tenant is only a “reasonable” accommodation, not an unreasonable one. Even with service dogs, as well as emotional support dogs, the landlord has a right to impose certain requirements and restrictions. These include the tenant’s responsibility to keep the animal clean and free of fleas so as not to infect the building, to keep the animal on a leash when in the building and in common areas, to prevent the animal from engaging in excessive barking or late night barking, creating a nuisance for the other tenants in the building, and to choose an animal that does not display aggressive tendencies and is suitable for apartment living. In addition, the tenant has the obligation to make sure that the animal’s waste does not soil or litter the premises and are properly disposed of by the tenant.
The dog may be permitted anywhere the tenant may be permitted, except that it may not be allowed to threaten or intimidate other tenants, including their children and guests. Of course, any sense of intimidation must be reasonably based. In other words, the landlord is not required to restrict a calm, peaceful emotional support dog from a common area just because a young child there has an unreasonable fear of dogs.
— Saul Ferster
Q. I own a building and live in one of the units. What should I do to protect myself if a significant other moves in with me? I want to make sure that, if it doesn’t work out, I don’t have a permanent tenant in my home.
A. For various reasons, you are likely not in jeopardy of creating a lifetime tenancy just because you decide to live with your significant other. So long as you live in the same unit with your significant other and do not charge or collect any rent, you are not a “landlord” and your significant other is not a “tenant” as those terms are defined under the San Francisco Rent Ordinance. Because of this, your significant other’s occupancy is not protected under the ordinance.
To protect yourself, you may consider creating an agreement with your significant other providing that the occupancy is with your consent, for an indefinite period of time, and without any reservation of rent. By doing this at the outset, you establish the terms of the occupancy. Your significant other would be considered a “tenant at will.” If the relationship ends and your significant other refuses to leave, then you can give your significant other a 30-day notice to vacate.
Even if you should create a tenancy that is somehow protected under the rent ordinance, you still have the right to tell your significant other to leave. The ordinance permits an owner who resides in the same unit with his or her tenant to evict the tenant without just cause. So, if the relationship ends and you want your significant other to vacate, then you can evict with a 30- or 60-day notice, and you don’t have to state any just cause reason for 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. Edward Singer is with Zacks & Freedman, P.C. and can be reached at 415-956-8100. Saul M. Ferster can be reached at 415-863-2678. Steven C. Williams is with Fried & Williams LLP and can be reached at 415-421-0100.