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Landlord Law: Part 1 Cut & Dry Conflicts
by Saul M. Ferster
The following article is intended to touch on just a few of the typical issues confronted by the San Francisco landlord. The second part of the article, which will look at less clear-cut, but still fairly basic issues, will be published in the January 2010 edition of this magazine.
Notice of Entry
California Civil Code Sec. 1954 spells out the circumstances for which you can demand entry to a tenant’s apartment. They are limited to the following: in case of emergency; to make necessary or agreed repairs, decorations, alterations or improvements to supply necessary or agreed services; to exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers or contractors; to make a pre-move-out inspection for security deposit purposes; when the tenant has abandoned or surrendered the premises; and pursuant to court order. Except in cases of emergency or when the tenant has abandoned or surrendered the premises, entry may not be made during other than normal business hours, unless the tenant consents to the entry. The landlord may not abuse the right of access or use it to harass the tenant. Except in an emergency, or where the tenant is present and consents to the entry, or after the tenant has abandoned or surrendered the unit, the landlord must give at least 24 hours written notice stating the date and approximate time of entry, and the purpose. There are provisions for oral notice in cases where the property is being sold, and the real-estate agent has first given written notice within 120 days prior to the oral notice.
The notice of entry may be personally delivered to the tenant; left with someone of a suitable age and discretion at the premises; or left on, near or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. The notice may be mailed to the tenant; however, if mailed, landlords need to mail it six days prior to the intended entry. As a practical matter, a landlord is always best off giving as much advance notice as reasonably possible to avoid the tenant’s refusal of entry based on schedule conflicts or other problems. With advance notice, if a problem arises, there is plenty of time to resolve it.
A landlord is not required to give notice if the tenant and the landlord agree orally to an entry to make agreed repairs or supply agreed services, the agreement includes the date and approximate time of the entry, and it is made within one week of the date of entry.
You may enter without notice when the tenant has abandoned the premises. If, however, no surrender of the key has occurred, and you cannot determine if the premises have been abandoned, I would recommend you give the required 24 hours prior written notice that you will enter to determine if the unit has been abandoned. Upon entry, if you find the unit empty, or nearly so, the safest thing to do is take possession but give a Notice of Belief of Abandonment, found in California Civil Code §1951.3, which requires the tenant to notify you in writing that he does not intend to abandon the real property and to state an address at which he may be served by certified mail in any action for unlawful detainer. Giving this notice will protect you from liability if the tenant later complains that you took possession. Of course, if the tenant provides the information required, you had better give the tenant access to the unit, or you may be accused of what is called forcible detainer (a “lockout”), which is illegal and can cause you serious liability.
Habitual Late Payment
Habitual late payment is just cause for eviction under the Rent Ordinance. The problem is that landlords frequently ignore late payments for many months or years, and then suddenly want the rent by the first of every month. That landlord has allowed the tenant to claim that the requirement of timely payments has been eliminated through a course of conduct acquiescing to later payments. You should insist on timely payments from the beginning and put your insistence, and your objection to late payments, in writing.
Too frequently, even when the landlord writes to the tenant, rather than objecting that a late payment violates the rental agreement, or informing the tenant that it can be just cause for eviction, the landlord simply asks for payment of a late fee. Many of these letters seem to indicate that it is okay to pay late so long as you pay the late fee. The late fee should be incidental—the real thrust of the letter should be to tell the tenant he must pay on time; and if he does not, he risks being evicted.
Change of Terms of Tenancy
If you want to begin charging a tenant for water or electric bills after starting individual metering, you can do so simply by giving a 30-Day Notice of Change of Terms of Tenancy, but it may not benefit you. If your rental agreement includes utilities, then the tenant can go to the Rent Board and get a reduction in rent for a reduction in service equivalent to the amount the tenant will now be paying directly for the utilities. Of course, if the tenant’s usage is clearly excessive, the Rent Board may be willing to reduce the rent only by a reasonable amount and not for the excessive usage.
Under Rent Ordinance §37.3(5)(A), a landlord may impose increases not to exceed 50% of the excess use charges (penalties) levied by the San Francisco Water Department on a building for use of water in excess of Water Department allocations under certain specified conditions:
- The landlord provides tenants with written certification that the following have been installed in all units: permanently-installed retrofit devices designed to reduce the amount of water used per flush or low-flow toilets (1.6 gallons per flush); low-flow showerheads that allow a flow of no more than 2.5 gallons per minute; and faucet aerators (where installation on current faucets is physically feasible); and
- The landlord provides the tenants with written certification that no known plumbing leaks currently exist in the building and that any leaks reported by tenants in the future will be promptly repaired; and
- The landlord provides the tenants with a copy of the water bill for the period in which the penalty was charged.
Increases based upon penalties shall be pro-rated on a per room basis, provided that the tenancy existed during the time the penalty charges accrued. Such charges shall not become part of a tenant’s base rent. Where a penalty in any given billing period reflects a 25% or more increase in consumption over the prior billing period, and where that increase does not appear to result from increased occupancy or any other known use, a landlord may not impose any increase based upon such penalty unless inspection by a licensed plumber or water department inspector fails to reveal a plumbing or other leak. If the inspection does reveal a leak, no increase based upon penalties may be imposed at any time for the period of the unrepaired leak. See the ordinance for other details.
What if you want to remove laundry or parking from a tenancy? Once upon a time, a landlord could remove a housing service simply by giving a 30-day notice of the change, and granting a rent reduction commensurate with the service withdrawn. A few years ago, however, Rent Ordinance Section 37.2(2) was amended to provide that “garage facilities, parking facilities, driveways, storage spaces, laundry rooms, decks, patios, or gardens on the same lot, or kitchen facilities or lobbies in single room occupancy hotels, supplied in connection with the use or occupancy of a unit, may not be severed from the tenancy by the landlord without just cause as required by Section 37.9(a).”
The Rent Board initially attempted to define just cause for this purpose, but could not agree on appropriate just causes, so now we have none. Some just causes already in the Ordinance, like nuisance, may very well apply in certain terminations of housing services. More often, as with the owner move-in just cause requirement of making the unit one’s principal residence for 36 continuous months, they do not.
If your property is not rent controlled, in a month-to-month tenancy, you can even use the 30-Day Notice of Change of Terms of Tenancy to raise the rent when an additional tenant moves in. For a rent-controlled property, however, such rent increases are absolutely illegal, no matter what the circumstances; no device you might attempt to use, such as making a new lease when additional persons want to move in, will work to legalize the rent increase.
As all of you know, other issues and problems may arise. Usually, a friendly and common-sense approach, combined with the appropriate notice, will resolve them. If, however, things get complicated, it’s best to get advice from the Rent Board or a landlord attorney.
In Part 2 of this series, I will address thornier topics in landlord-tenant law, such as mold complaints and requests for rent reductions.
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. Saul M. Ferster is an attorney specializing in landlord-tenant law; he has been representing San Francisco landlords since 1990. He can be contacted at 415-863-2678. Copyright © 2009 by Black Point Press. All rights reserved.