legal q&a
Three Shells and a Pea
by Various Authors
Q. I have heard that in the event of the resident’s death, I should allow the resident’s emergency contact into the apartment. Is this true?
A. A tenant’s death terminates the tenancy. However, the owner generally does not regain possession of a rental unit immediately after the death. Instead, there may be several issues to confront before the unit can be rerented. First, if there are any questionable circumstances surrounding the passing, the county coroner’s office and/or the police department will seal off the premises pending the completion of an investigation. As a general rule, neither the owner nor anyone else may enter the unit until the seal is removed, and in San Francisco this process could take several months.
Second, if there are any co-tenants or subtenants, the tenancy may continue. In the case of a co-tenancy, the co-tenant retains control of the unit and will coordinate entry with the decedent’s relatives. If a subtenant remains, you should, if permitted, impose a new rent under the Costa-Hawkins Rental Housing Act; in instances where the landlord never approved the subtenant, an eviction is appropriate.
In many situations, the tenant dies and the apartment is empty. A friend or relative asks for permission to retrieve the belongings. Before allowing access, you must ascertain whether or not this person is the executor or trustee of the decedent’s estate. Do not assume that someone claiming to be the designated “emergency contact” is actually legally entitled to enter into the unit and to remove belongings. To the contrary, oftentimes someone who is not a beneficiary comes in and cleans up; if this happens, you may be sued by the persons who were actually entitled to receive the possessions. (Also, please remember that sometimes direct family members, like children, do not inherit what is left behind, so be careful about verbal representations.) Demand to see proof, such as “letters testamentary” issued by the probate court, or a certificate of trust, which will set forth the parameters of who is responsible for disbursing the decedent’s assets.
Above all else, do not let anyone move into the unit in order to pack up belongings. Everyone knows about San Francisco’s liberal rent laws, and the emergency contact may turn out to be a new squatter who will not leave after the funeral. Indeed, there have been many cases where a relative moves in, pays the owner “rent” during the three or four months it takes to wrap up the decedent’s affairs, and then argues, sometimes successfully, that a new tenancy at the old rental rate was established. Therefore, any retrieval of items should be closely supervised, and under no circumstances should keys be issued or overnight stays allowed.
In sum, while death terminates a tenancy, the process of disposing the belongings may take many months. During this time, no one can be allowed to move in, and the removal of items should be permitted only when emergency contacts have proved that they have legal authority to enter and retrieve the property.
—David Wasserman
Q. We recently deducted funds from a tenant’s security deposit after a party he threw resulted in plumbing problems. We also sent a 30-day notice to restore the security deposit to the original amount. The tenant had a lawyer respond to our notice and claimed we were threatening the tenant with eviction. We never said anything about an eviction! Did we do something wrong?
A. The first question is whether the tenant’s wild party was a substantial factor in causing the plumbing problems. If the party caused an unreasonable burden to be placed on the plumbing system, which resulted in damage to the plumbing system, then you may have recourse against the tenant. However, if the plumbing system is old, poorly installed and/or poorly maintained, a landlord should not try to pass on the maintenance bill to the tenant.
California Civil Code Section 1950.5 governs residential security deposits. A landlord may collect up to two months’ worth of rent as security for an unfurnished unit and up to three months’ worth of rent for a furnished unit. If the tenant’s conduct caused the problem and you have not requested security in excess of the allowable amount, then you have not done anything wrong. The result should be the same whether your unit is located in San Francisco or a non-rent controlled county. In San Francisco, a tenant may try to contest your 30-day notice as a decrease in services (his rights as a tenant have been diminished, which should result in a corresponding decrease in rent) at the San Francisco Rent Board. However, if you are merely asking the tenant to restore his security deposit to its original lawful amount, then the tenant’s San Francisco Rent Board petition should be denied. In this situation, you should write a letter to the tenant’s attorney and point out to him that your notice has nothing to do with an eviction, but with the tenant compensating you for damage that he caused to the plumbing system. Your letter should state that the tenant’s party caused the damage and enclose a copy of the bill for the repair. You should also have the plumber ready to provide a written statement of the cause of the problem and the condition of the plumbing.
If you have a written lease with the tenant, the written lease may have a covenant stating that the tenant has to replenish the security deposit within a certain period after receiving written notice. If the tenant failed to replenish the security deposit within that period, then the tenant would be in violation of the written lease, and the landlord would have cause to serve a three-day notice requesting that the tenant replenish the security deposit or vacate the unit. The three-day notice would be valid in San Francisco or a non-rent controlled county. Lastly, a landlord should have no problem writing or speaking with a tenant in a nonthreatening and noncoercive manner. However, there is a gray area in the law regarding that issue due to recent case law and proposed amendments to the Rent Ordinance related to 2008’s Proposition M.
—Lawrence M. Scancarelli and Jerod Hendrickson
Q. I rented an apartment to Jennifer Blackacre 12 years ago. The tenants
mail the rent checks to my post office box. For many years, her rent has been paid in the form of money orders with only the last name “Blackacre” as the remitter. I recently discovered that she married and moved to Sacramento eight years ago, where she lives in her own home and is a partner in a large firm. When she moved, she let her sister Stephanie Blackacre take over the apartment, without letting me know. This was a breach of the subletting/assignment clause. It’s clear that they were trying to hide this from me. I confronted Stephanie and told her that I would evict her based upon the breach of the lease, or, if she qualified, she could stay and pay market rent under a new lease. She elected to move out. However, due to the tenant’s breach of the lease and deception, I missed out on getting a rent increase to market rate eight years ago when Stephanie moved in. The new market rent is $800 higher than the amount that “Blackacre” was paying. I feel like my pocket has been picked for all these years. Can I sue?
A. It seems that tenants are playing this game of deception all over town. As the difference between market rents and price controlled rents has increased, there is a strong financial incentive for tenants to pass along units to their roommates and subtenants, sometimes making a substantial profit at the landlord’s expense. Of course, from the tenants’ point of view, the landlords are called greedy for seeking rent increases; but tenants are certainly not immune from the vice of greed, whether they chose to acknowledge it or not. In our local politics, tenant greed is ignored or even exalted.
You do have causes of action that you could bring against the Blackacres for breach of contract, and possibly for fraud and unjust enrichment. Jennifer broke the contract and concealed it from you. As a result, you have substantial monetary damages. Stephanie was unjustly enriched at your expense by paying under market value for the apartment. You may also recover attorney fees against Jennifer if your lease contains an attorney fees clause. Under the fraud claim, you may even seek punitive damages.
You should evaluate your monetary losses and the chances of collecting any judgment in your favor from the Blackacres. In many cases, it would be difficult to collect a money judgment against low-income tenants, so it might not be prudent to bet the significant cost of litigation against the chance of recovery. But, since in this case it appears that Jennifer Blackacre has assets, it may be worth pursuing a lawsuit. Of course, you should also consider the downside risks, including the chance that the Blackacres will file a cross-complaint against you based upon the condition of the rental unit or some other claim.
—Michael C. Hall
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. Lawrence M. Scancarelli and Jerod Hendrickson can be contacted at 415-398-1644. Michael C. Hall can be contacted at 415-512-9865. Copyright © 2009 by Black Point Press. All rights reserved.