legal corner Q&A

by Various Authors

Q. Recently, I’ve been finding it harder and harder to get tenant references from former landlords. When I asked one fellow landlord about it, he said that tenants can become litigious over a bad reference. Is this a growing trend? Also, what questions can I safely ask and answer myself about former tenants without getting myself in legal hot water?

A. There’s always a balancing act involved in trying to carry out your perceived responsibilities to former tenants and their prospective landlords and protecting yourself from liability. To say tenants can become litigious in San Francisco is like saying the sun will rise in the morning. Some things in life are just a given. Still, sometimes you simply need to assess the risks involved, and the goals you set, to find a balance point.

Giving a tenant a bad reference can lead to liability, at least theoretically. In 18 years in landlord/tenant practice in this city, however, I can honestly say I’ve never seen a landlord sued by a tenant for giving a bad reference. Threatened, maybe, but not sued. Still, the lawyer in me is always trying to protect my clients so that even the theoretical possibility, while far from a probability, will never jump up and bite. My advice, therefore, is generally to give inquiring prospective landlords the bare essentials—name, rank and serial number: “Yes, So-and-So was a tenant from that date to this date. Yes, the rent has all been paid. Sorry, my lawyer will not allow me to give any more information than that on any tenant, not even Mother Theresa.” If the rent is not all paid, then drop that part. By saying that your lawyer won’t allow you to give more on anyone, you are not singling out a particular tenant for a negative inference.

Some of my clients, however, prefer a more flexible approach, reasoning, “If I don’t give him information, why will he give it to me when I need it?” Well, that’s the opposite side of the same coin—it depends on how you want to flip it. If you are going to give out information, however, remember to be absolutely accurate in what you say, and don’t say anything you can’t prove if need be. Stick to the objectively verifiable stuff, such as timely rent payment, or presence or absence of noise complaints from neighbors, and leave out subjective observations like, “He has suspicious looking friends.” Dispense with the gratuitous digs at the tenant’s character which, while making you feel good, could open up the door to a reverse volley from the tenant. And even if that no-goodnik of a tenant is not likely to sue, slashed tires on your beloved SUV may be more within his range, as well as his character.

- Saul M. Ferster

Q. My tenant’s stove is broken and the service company has given me a four-hour window during which a repair person will arrive. If I give the tenant proper notice, can I expect her to be home until the work is finished and the service person leaves? If not, what should I do?

A. There is no proper notice to require a tenant to be home to allow entry of a service technician to repair an appliance. You may be thinking of the standard Notice to Enter when a landlord needs to enter a tenant’s unit. Civil Code Section 1954 discusses a landlord’s obligation to notify a tenant about entering the unit in order to make repairs. A Notice to Enter is when the landlord gives the tenant reasonable notice in writing of the landlord’s intent to enter, with the date, approximate time and purpose of the entry. Alternatively, a landlord and tenant may agree orally for an entry to make agreed repairs or supply agreed services, but it is always wise to follow up with the date and purpose of the entry in writing.
You should send your tenant a Notice to Enter with the information about the when and why of the entry. However, your question indicates you want the burden of waiting around for the stove technician to be placed on the tenant. The fact is, while you can casually inquire as to whether the tenant might be home for the visit (perhaps they are retired or telecommute), the tenant has no obligation to be there. Effectuating a repair of a housing service is one of your duties as a landlord, not a duty of your tenant.

If the tenant wanted to install cable or have a repair of some other service that you did not provide as a part of the tenancy, it would clearly be the tenant’s obligation to be present to allow the technician into the unit. However, I am assuming that you provided the stove at the inception of the tenancy as part of the rental unit, and thus the obligation to repair it is yours, as well as the obligation to make sure the repair occurs.  

More often than not, small property landlords have two jobs: being a landlord and then a regular 9-to-5 job (what they often self-describe as their “real” job). Landlords should not sell themselves short; being a hands-on landlord is just as real a full-time job as any other job. When things are going well, one can balance the two jobs; but occasionally, the two may conflict. Remember, being a landlord is a profession with serious responsibilities and obligations. Failing to make repairs could result in the tenant complaining to the San Francisco Rent Board or the Department of Building Inspection. It could even be worse: they could have a valid defense to a possible eviction action you may have to pursue.
Sometimes it is frustrating when a landlord needs to take time off a 9-to-5 job in order to do something seemingly insignificant, like wait for a technician. However, for most small landlords, the apartment investment is one of your most valuable assets, and thus you need to treat it accordingly. If you find that the time it takes to be hands-on interferes with your “real” job, you may want to look into hiring a professional property manager to assist in maintaining the property.

- Marina Franco

Q. One of my tenants has begun building a workspace in our home’s basement. A full wall with a door has been erected. Can he build a workspace without my permission as long as he removes it when he vacates? We have an SFAA lease.

A. We will assume that this workspace is part of the “Premises” as defined in the SFAA Rental Agreement. First, the tenant has breached the SFAA lease, Paragraph 23, by altering the premises without your prior written consent. You should immediately provide written notice that you object to the alterations, and warn that if he does not cease work and remove what he has already installed, that you will serve him with a written Three-Day Notice to Perform Covenant or Quit.
If you should have no objections to the alterations, you can allow him to finish work and use the workspace.

However, it is generally a bad idea to allow a tenant to make changes to any part of the property. Besides possible code violations, you could be liable for injuries caused by his construction and are responsible to the city for nonpermitted work, including penalties. His work could also damage or seriously compromise the structural integrity of the building. Lastly, the tenant could claim that the workspace was a separate residential rental unit. In summary, if you allow the tenant to finish his alterations, you could be opening a Pandora’s box to future unwanted litigation and problems with your tenant, his visitors and with the city.

If you do allow changes to the workspace, the tenant is obligated under the SFAA lease and state law to return the property to you in the same condition as he received it, with the exception of reasonable wear and tear. But if he does not remove the work when he vacates, it may be difficult to force him to do so. Also, the security deposit may not be enough to reimburse you for the cost of hiring someone to remove the work; if you file an action against him, as a practical matter, it may be difficult to collect damages from him.

Even if you did not have a SFAA rental agreement, you should still write the warning letter, informing the tenant that he does not have authority and permission to make the alterations to the basement. If he should ignore your warning, you could serve him with a 30-Day Notice to Terminate Tenancy of the workspace (after obtaining permits to remove the illegal construction).

A better option would be to serve him with a Notice to Change Terms of Tenancy, which prohibits alterations without your prior written approval. The notice would go into effect in 30 days. Your unilateral change to the tenant’s rental agreement should be enforceable for breach of covenant eviction purposes because it protects the health, safety and quiet enjoyment of the occupants of the building or adjoining properties (see Rent Board Rules and Regulation 12.20). If the tenant does not comply, you can serve him with a Three-Day Notice to Perform Covenant or Quit.

- Jerod Hendrickson and Lawrence M. Scancarelli

 

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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. Saul M. Ferster can be reached at 415-863-2678. Marina Franco is with Wasserman-Stern and can be reached at 415-567-9600. Jerod Hendrickson and Lawrence M. Scancarelli can be reached 415-398-1644. Copyright © 2008 by Black Point Press. All rights reserved.