legal Q&A
Resident Radar
by Various Authors
Q. My tenant asked me if she could have an extra key to give to her boyfriend. She specified that he would not be living there, but that she would like him to be able to get in occasionally if she is not there. What should I do?
A. For San Francisco rent controlled apartments, landlords must be mindful of the “key amendment” to the rent law. Passed in 2005, this law allows tenants to receive an extra set of keys from the landlord for such reasons as admitting a service provider, delivery person, houseguest or relative. The intent of the legislation emanated from a concern that a tenant may be in poor health or incapacitated and therefore unable to let a caregiver into the unit. Unfortunately, the breadth of the law extends well beyond this purpose.
Your tenant could easily argue that her boyfriend is an occasional houseguest or even a “family member,” as the word “family” is broadly defined by various San Francisco ordinances. As such, you probably should provide a duplicate set of keys unless you have good reason to suspect that there is subletting in violation of the rental agreement. Failure to comply with the key amendment allows the tenant to file a decrease in housing services petition with the Rent Board, and under these circumstances you would probably incur a rent decrease until keys were provided. You can charge the tenant for the actual cost of replicating the keys, but you cannot impose any other fee.
However, the law does require the tenant to provide a written request stating the reason duplicate keys are necessary. Please make sure the tenant states, in writing, that the keys are for her boyfriend, who is an occasional houseguest and not a resident. Have the tenant sign and date this request, as it may be used as evidence should the boyfriend claim to be a co-occupant in the future. When providing the replicated keys, you may also hand the tenant a letter summarizing the understanding that this person is not a co-tenant, subtenant or permanent occupant. Also consider adding language that the tenant assumes all risk associated with granting access to her unit to another person; to that end, make it clear that you assume no liability for any property damage or personal injury caused by, or inflicted onto, the boyfriend.
This situation highlights a critical part of property management in the city: always monitor who is living in your apartments. While you do not need to routinely spy on residents, pay attention to who enters and leaves the building. Never accept rent from a subtenant, and never name someone other than the approved tenant on all correspondence and other communication. If you have reason to suspect that unlawful subletting has occurred, consult an attorney immediately. In sum, the key amendment gives tenants great latitude to allow others to access your building and their unit. It may also provide you with insight that a tenant is, or may be in the future, sneaking in another occupant.
—David Wasserman
Q. I am screening applicants for a vacant unit and one looked like a great possible tenant, until a five-year-old bankruptcy showed up on his credit check. How can I find out more about the circumstances of the bankruptcy?
A. To get more information about an applicant’s bankruptcy, the landlord can simply ask the tenant. The applicant will probably be willing to volunteer information and details surrounding the bankruptcy. If the applicant is not forthcoming with this information, then perhaps the applicant is not the best candidate for the tenancy.
A landlord may also consider searching public court records. Bankruptcy cases are filed in the United States Bankruptcy Court. Once the landlord has the applicant’s bankruptcy case number, then the landlord may obtain certain information about the bankruptcy case directly from the bankruptcy court. This information may even be obtained online using the court’s website. Furthermore, as a service to its clients, some tenant screening companies may offer other information about an applicant’s bankruptcy filing.
If the landlord ultimately denies the applicant based on bankruptcy information contained in the applicant’s consumer report, then the landlord must remember to provide the tenant with a notice of adverse action, which is required by the Fair Credit Reporting Act. All landlords should be familiar with this act when screening tenant applicants. If not, then the landlord should consult with an attorney to obtain further information about the act and the screening process.
—Steve Williams
Q. I have three units on my lot: a duplex and a standalone one-unit building. Can the one-unit building be classified as a single-family dwelling even though there are other units on the parcel?
A. You don’t specify why you want to classify the one-unit building as a single-family dwelling, but the particular reason is important. For example, tenants are often described as “protected,” although an individual may be totally protected from owner move-in eviction, only partially entitled to special treatment in an Ellis Act eviction, and not protected at all from eviction for nonpayment of rent. Only two reasons to classify the one-unit building as single family come to mind. The first is to evict its tenants under the Ellis Act, or to evict from the duplex without evicting from the one-unit, and the second is to increase the rent free of the restrictions of the San Francisco Rent Ordinance.
The Ellis Act is found at Government Code section 7060, et. seq. Section 7060(b)(1)(B) and provides that an owner cannot be compelled to continue to offer accommodations for rent or lease in any property with a detached physical structure containing three or fewer residential units and in any other structure located on the same parcel of land. In other words, if you are going to withdraw one building containing three or fewer units on a single lot from rental, you must withdraw all buildings on the same lot. Section 37.9a(13) of the Rent Ordinance, which is the local “just cause” implementation of the Ellis Act, includes as one of the fourteen reasons for eviction, that “[t]he landlord wishes to withdraw from rent or lease all rental units within any detached physical structure, and, in addition, in the case of any detached physical structure containing three or fewer units, any other residential units on the same lot.” Thus, for purposes of the Ellis Act, the one-unit building cannot be classified as a single-family dwelling, and if it is to be “Ellised,” so must the duplex, and visa versa.
Costa Hawkins exempts single-family homes and most condominiums, where the tenancy began on or after January 1, 1996, from rent restrictions under the Rent Ordinance, although eviction controls remain. However, the Costa Hawkins Act does not refer to a “single-family dwelling.” Rather, the exemptions apply, under Civil Code section 1954.52(a)(3)(A), to a dwelling unit that is “alienable separate from the title to any other dwelling unit,” i.e. it can be sold or otherwise transferred by itself. Your one-unit building is not separate in title from the duplex. All three units are on the same lot, and title to one cannot be transferred independently of title to the other. Thus, under Costa Hawkins, the one-unit building cannot be classified as a single-family dwelling, and thus is not exempt from rent control.
Of course, if the separation of the one-unit building is important enough, it may be possible to do a lot split creating two separate properties. If you are interested in this, you should consult a land use attorney. Barring that, you truly own a three-unit property.
—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. David Wasserman is with Wasserman-Stern and can be contacted at 415-567-9600. Steve Williams is with Wiegel and Fried, LLP and can be contacted at 415-552-8230. Saul M. Ferster can be contacted at 415-863-2678. Copyright © 2010 by Black Point Press. All rights reserved.