legal Q&A
Cooking Up a Strategy
by Various Authors
Q. I have a new tenant who has been cooking some very fragrant foods. Some of the other tenants have been complaining about the smells, which permeate the hallway and even get into their units on occasion. What should I do?
A. Tenants cannot allow their noise, odors and conduct to offend other occupants in the building. Doing so constitutes what is known in the law as a “nuisance.” A nuisance is broadly defined as any activity that arises from unreasonable, unwarranted or unlawful use by a person of his/her property. The local rent law has refined this definition to “creating a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building.”
Traditional examples of nuisances include playing loud music, hosting boisterous parties, allowing one’s dog to bark throughout the night, banging on walls and the like. Several years ago, this magazine published an article addressing the issue of secondhand tobacco smoke. In that article, the author explained that secondhand smoke, if allowed to permeate into common areas or another tenant’s unit, rose to the level of a nuisance.
When a tenant commits a nuisance, state and local laws permit the owner to terminate the tenancy upon issuance of a three-day notice to quit. This is considered to be a severe remedy, as the tenant is not afforded the right to cure the problem. Indeed, a breach of the rental agreement and nonpayment of rent requires that the notice be stated in the alternative: the tenant has three days to cure the breach or to pay the rent, and only after failing to do so can the tenancy be terminated. Nuisance notices do not grant that luxury.
Before issuing a termination notice, landlords must evaluate the seriousness
of a nuisance. Drug dealing from the unit requires no warning letter; rather, the
three-day notice should be issued upon confirmation that such an activity has occurred. A loud party, on the other hand, is not as serious and probably warrants a warning letter informing the tenant that a second loud party could result in eviction. Similarly, smokers should be apprised that their smoke cannot encroach into the air space of others in the building by way of pre-notice warnings.
Likewise, cooking smells that offend other tenants is not illegal or outrageous conduct that would justify immediate termination of one’s tenancy. Instead, the owner should speak with the cook and ask that measures be taken to eliminate the offensive odors. Perhaps opening the windows, or use of fans, will rectify the problem. Written correspondences should be sent and kept on file, documenting that the tenant has been requested to prevent the smells from offending others. While it is difficult to ascertain how long the warning efforts should be pursued, because this is not egregious conduct that imminently threatens the wellbeing of other tenants, work with the chef to see if the problem resolves itself.
After expending good faith efforts to stop the smells, the owner at some point must consider the rights and needs of tenants who are experiencing the foul fragrance. Thus, if the bad aromas continue to invade common space and other units, and the file is replete with warnings, the landlord may have to issue a Three-Day Notice to Quit as a method of last resort. Should the situation become this serious, please consult with an attorney to ensure that all efforts have been exhausted prior to sending out an eviction notice.
—David Wasserman
Q. I recently filled out a Three-Day Notice to Pay Rent or Quit. I got the form from SFAA, so I thought I did everything right, but now the tenant is saying that the form is wrong and is delaying the eviction. What did I do wrong?
A. In this challenging economy, tenants unable to pay rent have been misusing the legal process to delay their evictions. One such delay tactic is finding any perceived problem with the Three-Day Notice to Pay Rent or Quit and then filing a demurrer, or motion to dismiss, with the court. Eviction defense organizations know that exploiting ambiguities with the landlord’s eviction paperwork can halt proceedings for many weeks, if not months.
A. One common mishap is failing to fill out the 3-Day Notice to Pay Rent or Quit correctly. The preprinted form, distributed by SFAA and published by CAA, is correct in content but requires owner input. Specifically, in addition to inserting the name and address of the tenant, the amount of rent owed and where rent can be paid, the owner is also given the option of stating acceptable methods of payment, with the choices of personal check, cashier’s check, money order, EFT-credit, and/or cash. The form allows selection of any number of these choices. Eviction defense groups have increasingly filed demurrer motions arguing that prohibiting a particular method of payment by not checking a certain box is tantamount to a “change in terms of tenancy,” which requires a 30-day written notice to effectuate; as such, they argue, the 3-day notice is improper and cannot support an eviction action.
Technically, this position has some merit. A rental agreement, or an amendment to the lease, can limit the acceptable methods of payment. For example, the SFAA lease specifically prohibits payment of rent in cash. As such, in the text of the eviction complaint, if the lease is not attached as an exhibit, the owner must set forth the acceptable methods of payment as allowed by the rental agreement. If the lease contains no such restriction, then the three-day notice must likewise allow for all methods of payment; and every box should be checked except the EFT/credit box (which allows for payment by electronic funds into the owner’s bank account) unless this is a customary practice. Also, make sure that you check all the days of the week available, as well as providing for normal business hours, to receive payment.
In sum, be very careful when drafting three-days, as tenant assistance organizations will utilize every argument to thwart the nonpayment of rent eviction. Read your lease carefully before finalizing the notice, and consult an attorney if you have any questions.
—Cindy Lee & Jo Biel Clark
Q. A neighboring property owner attached a satellite dish to the side of his building, but over the roof of my property. Can I make him remove the satellite dish?
A. A real property owner owns the land and the air space above the land.
Accordingly, a neighboring property owner generally does not have any right to enter onto that land or the air space above without permission.
This includes erecting or installing any structure or object that hangs over the property. To do so may be an encroachment (when part of the real property crosses the property line of another) or a trespass (entering another person’s property without permission), both of which are legally actionable.
Accordingly, a real property owner may demand that the neighbor remove the satellite dish that hangs over the property. If the neighbor refuses, then the owner may file a lawsuit to compel the neighbor to do so and seek monetary damages.
—Steve Williams
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. Cindy Lee & Jo Biel Clark are with Eviction Assistance and can be contacted at 415-861-6070. Steve Williams is with Wiegel & Fried, LLP and can be contacted at 415-552-8230. Copyright © 2009 by Black Point Press. All rights reserved.