legal Q&A
Open Door Policy
by Various Authors
Q. If I conduct an owner move-in and another unit becomes available in the building, do we have to rent it out to the tenants that we evicted? If so, does it have to be at the old rent? The owner unit is a one-bedroom and the newly available unit is a two-bedroom.
A. The answer depends upon the timing. If you have served the tenants with a 60-day Notice of Termination of Tenancy based upon your good faith intent to owner-occupy the unit and, before the tenants have vacated the one-bedroom target unit, another two-bedroom unit in the same building becomes vacant, which is not comparable to the target unit, then you must offer the two-bedroom replacement unit to the tenants, but at full-market rent.
Of course, if you prefer to occupy the two-bedroom yourself, then you would rescind the eviction notice and allow the tenants to remain in possession. If the newly available unit is comparable to the target unit (same size, floor plan, level in the building and amenities), then you must rescind the eviction notice and take the newly available unit yourself.
If the two-bedroom unit becomes available after the tenants have already vacated the target unit, then you have no obligation to offer it to the evicted tenants, and may rent it to new tenants at full-market value. If you have occupied the one-bedroom after evicting the tenants and now wish to occupy the two-bedroom instead, you could do so, but you would have to offer the one-bedroom unit back to the departed tenants at the old rent, and, if they don’t accept, you could rent it to new tenants, but only at the same rent that the departed tenants had been paying, as adjusted under Rent Board guidelines.
—Michael C. Hall
Q. A year ago, a tenant in my no-pet building told me she was getting a comfort pet, and provided a doctor’s note. Later, she verbally informed me that she was no longer getting the pet. Recently, I have seen her walking around the building with a dog. I tried to find out if this was the comfort pet in question, but she won’t answer my queries. What should I do?
A. It is not uncommon for a tenant to request permission to have a pet as an accommodation for a disability. The law requires landlords to make reasonable accommodations for disabled tenants. Under certain circumstances, permitting the tenant to have a dog may be a reasonable accommodation for the tenant’s disability.
The law permits a landlord to request documentation or open a dialogue regarding the requested accommodation. Here, the landlord has already attempted to open a dialogue but the tenant has not responded. Accordingly, the landlord should remind the tenant in writing that dogs are not permitted and that if the tenant claims that her dog is a reasonable accommodation for her disability, then she must provide documentation demonstrating how her dog is a reasonable accommodation for her disability. The landlord may also request verification that the dog is licensed and not a danger to others.
When communicating with the tenant about a reasonable accommodation, the landlord should be careful not to ask about any details of the claimed disability. The law prohibits a landlord from inquiring about the type or severity of the disability.
If the tenant continues to ignore the landlord and fails to provide information showing that her dog is a reasonable accommodation for her disability, then the landlord may ask her to remove the dog or possibly take legal action to enforce the no-pet provision of the lease. The landlord should consult with an attorney before commencing any legal action against the tenant.
—Steven C. Williams
Q. If the primary tenant in a unit dies, can the unit be passed on to offspring with the same agreement?
A. The question is vague, because it is not clear whether the offspring lived in the unit with the now-deceased primary tenant, or whether they have moved out and live elsewhere. In either situation, certain general principles apply. In Miller & Desatnik Management Co., Inc., v. Bullock, a case out of the Appellate Department of the Los Angeles County Superior Court, a landlord filed an unlawful detainer action against a tenant’s mother after the landlord discovered the tenant had died four years earlier and the mother had continued to pay rent in the deceased daughter’s name. The trial court had held that the tenancy survived the tenant’s death and that the mother was entitled to remain in possession absent good cause for her eviction. The Appellate Department disagreed and held that a month-to-month tenancy is terminated by notice of a tenant’s death as of the thirtieth day following the tenant’s last payment of rent before death, and no further notice is required by the landlord to terminate the tenancy. The court further held that the mother was not an assignee of the tenancy, but rather a trespasser, and liable for the reasonable value of her use and occupation of the premises. It is important to note that the mother was not living with her daughter at the time of the daughter’s death.
A different result was obtained in the much-earlier California Court of Appeal case of Joost v. Castel. In that 1939 case, the court held that the passage of title to possession of commercial premises under a lease, which was still in effect when the tenant died, through the tenant’s executor to a purchaser, did not violate the lease provisions against assignment and subletting. The court stated that the transfer of the right to possession under the lease by operation of law, in this case the law of inheritance, was not a voluntary breach and therefore not justification for termination.
Applying the principles of the foregoing two cases to your current situation, the following analysis is suggested. If the tenant had a still-pending lease, and the offspring were heirs to the tenant’s estate, as one would expect, they would have a possible claim to continuation of the tenancy. Of course, this being a residential tenancy, unlike Joost v. Castel, and in a rent controlled jurisdiction to boot, I think it may be quite possible to argue that the remaining lease term, usually very short, should not be treated the same as the remaining term under a commercial lease, frequently for many years, where the lease is a business asset.
If the tenancy was merely month-to-month, unless the offspring were already in possession of the unit as tenants themselves, they would have no claim to a continuing tenancy under the deceased tenant’s rental agreement. On the other hand, if the offspring had resided in the unit with the now-deceased tenant with the landlord’s knowledge and consent—even though they were not named as tenants themselves in the written rental agreement—they would be tenants under the provisions of the Rent Ordinance, which defines a tenant in Section 37.2(t) as, “A person entitled by written or oral agreement, subtenancy approved by the landlord, or by sufferance [i.e. the landlord tolerates their presence], to occupy a residential dwelling unit to the exclusion of others.” In such a case, the offspring would have a right to continue in the premises. They might be subject to a Costa-Hawkins rent increase, however; for example, they would be subject to an increase if they first commenced living in the premises as adults after the deceased tenant moved in and after December 31, 2005.
—Saul M. Ferster
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. Michael C. Hall can be contacted at 415-512-9865. Steven C. Williams is a partner at Fried & Williams, LLP and can be contacted at 415-421-0100. Saul M. Ferster can be contacted at 415-863-2678. Copyright © 2010 by Black Point Press. All rights reserved.