legal q&a
Don’t Get Steamed
by Various Authors
Q. A tenant informed me that his steam heater was not working. The plumber found no problem with the heater, but did find that it was covered in dust and that the tenant’s curtains were conveying the heat toward the window. With the dust and curtains removed, the heater worked fine. Since there was nothing wrong with the heater and the “malfunction” was entirely created by the tenant, can I pass the plumber’s bill on to him?
A. You probably cannot pass this cost onto your tenant. State housing codes require all residential dwelling units to have heating systems capable of heating habitable rooms. San Francisco has adopted more stringent rules regulating heat.
San Francisco Housing Code Section 701(c), also known as the Heat Ordinance, requires residential units to be heated to at least 68 degrees Fahrenheit at a point midway between the heat source and farthest wall and at three feet above the floor. Heat capable of maintaining a room temperature of 68 degrees shall be made available to each occupied habitable room for 13 hours each day (between 5:00 am and 11:00 am and 3:00 pm to 10:00 pm). A time clock set to provide the amount and hours of heat should be installed at or near the heating source, and a centrally located thermostat should be installed in a habitable room in the building. Boiler-type heating systems usually take about one hour to reach minimum requirements, and this warm-up period does not count towards the heating time requirements. Habitable rooms include rooms used for living, sleeping, cooking and eating; conversely, bathrooms, closets, hallways, storage rooms and similar spaces need not be heated.
Individual heaters must be permanently attached and properly wired in accordance to the city’s electrical code to be considered a legal heat source. As such, portable heaters/space heaters cannot be used to heat an apartment.
The Housing Inspection Services Division of the Department of Building Inspection places the burden of maintaining an operable heating system squarely on the owner. If a heater is not working, a Notice of Violation is issued immediately to the owner or property manager, requiring that heat be restored within 48 hours of the notice’s issuance. If it is cold outside or the tenant is elderly/sick, the city can issue an emergency order and perform the work itself, in which case the owner is billed for the work and DBI’s administrative costs. Where the owner does not cooperate, the City Attorney’s Office may sue the owner, and, in extreme cases, the owner may be criminally prosecuted by the District Attorney (a violator can be fined up to $500 per day or be imprisoned for six months or be both fined and imprisoned).
In sum, the owner bears full responsibility to ensure that the unit’s heating system is compliant with the Heat Ordinance. If the heater does not work, the owner is expected to make, and pay for, the repairs. Certainly the willful destruction of a heater by the tenant would give the owner legal recourse to terminate the tenancy and to recoup repair expenditures; but in instances where the tenant simply failed to clean or placed drapes in a bad position, the owner assumes the cost of remediation.
—David Wasserman
Q. I have a small office space that I rented to a tenant. Three months ago, he stopped paying rent and removed anything of value from the premises. I haven’t seen him in weeks. Can I gain possession via a notice of abandonment instead of a more expensive eviction?
A. Yes, you may recover possession by serving a simple Notice of Belief of Abandonment in any case where the rent has been due and unpaid for at least 14 consecutive days and you reasonably believe that the unit has been abandoned. The notice should be served by either personally serving it to the lessee or by mailing it regular First Class mail to the lessee’s last known address, and to any other address where you reasonably expect that the lessee would receive the notice—for example, a work address. You will be entitled to recover possession without a lawsuit or sheriff’s eviction 18 days after you have mailed the notice (or 15 days after you personally deliver it) unless the lessee responds in writing by providing you with notice that the lessee does not intend to abandon the unit; and an address where the lessee may be served by certified mail in an unlawful detainer action.
You may utilize this notice in conjunction with a Three-Day Notice to Pay Rent or Quit, and if the lessee responds by providing an address, you may lawfully serve the lessee with the unlawful detainer summons by certified mail without prior court order. On the other hand, if the notice period expires without a response from the lessee, then you are entitled to take possession and change the locks without further notice, fuss or bother. Please consult with an attorney or obtain a form of Notice of Abandonment from another trusted source, such as the San Francisco Apartment Association.
The fact that the tenant may have left possessions behind in the unit does not defeat the ability to use the Notice of Abandonment procedure, so long as it is reasonable to believe that the tenant has abandoned the unit. You may combine the Notice of Abandonment together with a Notice of Right to Reclaim Abandoned Property per Civil Code sections 1980-1991. The period of the Abandoned Property Notice would expire at the same time as the Notice of Abandonment. Since in your case the unit is a commercial office, you do not need to be concerned about compliance with the eviction protection provisions of the San Francisco Administrative Code (the Rent Ordinance), because commercial units are exempt.
There is less certainty about utilizing the abandonment procedure for a dwelling unit subject to the Rent Ordinance. Abandonment of the unit is not one of the enumerated “just causes” for serving a notice to quit under the Rent Ordinance. However, abandonment is defined under case law as the voluntary relinquishment of the premises with the intent not to perform future obligations under the lease. Since the tenant has voluntarily abandoned the unit, the landlord’s effort to confirm the abandonment through this notice procedure should not be construed as a wrongful endeavor to recover possession, and the abandonment notice should not be construed as a notice to quit.
However, to protect against the unlikely potential wrongful eviction suit, the most prudent course might be to utilize the unlawful detainer process based upon a notice to pay rent or quit. Even though the tenant may have abandoned the unit, the three-day notice may be served by posting and mailing, and the summons may be served by posting and mailing pursuant to a court order. A sheriff’s eviction could proceed after entry of a default judgment for possession of the unit.
—Michael Hall
Q. I have a Section 8 tenant with a Section 8 Rental Agreement. She is the only one listed on the contract as the tenant, but recently she has had a man staying with her for many consecutive nights. He has also been playing loud music and disturbing other tenants. What should I do?
A. You should write a letter to your tenant, which describes the complaints the other tenants are making about her. You should tell her that she is responsible for her guest’s conduct and that her guest may be committing a “nuisance” which may constitute “good cause” to terminate her tenancy under her Section 8 contract and under the San Francisco Rent Ordinance. The letter should also warn her to “cease and desist” from disturbing the other tenants in the future. You should instruct her that she may force you to take stronger action, including the service of a Three Day Notice to Quit for Nuisance, if she and/or her guest continue to unreasonably disturb the other tenants in the future.
Also, you should tell her that it has come to your attention that her guest has been staying with her for many consecutive nights and that you do not know who this person is. You should inform her that she should abide by the terms of the written lease regarding overnight visitors. Further, you should tell her that Section 8 prohibits her from subleasing the unit. Your letter should state that you disapprove of any potential subtenant, and that you will serve her with a Three Day Notice to Perform Covenant or Quit if it becomes apparent to you that she has sublet her unit in violation of the written lease and her Section 8 contract.
—Jerod Hendrickson and Lawrence M. Scancarelli
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 is with Wasserman-Stern and can be contacted at 415-567-9600. Michael C. Hall can be contacted at 415-512-9865. Lawrence M. Scancarelli and Jerod Hendrickson can be contacted at 415-398-1644. Copyright © 2009 by Black Point Press. All rights reserved.