legal Q&A
The Waiting Game
by Various Authors
Q. I have a Section 8 tenant in my building. I suspect he is dealing drugs, and I have put cameras in the building to gather evidence. Can I simply stop accepting Section 8 payments from the Housing Authority, or is my best bet to move forward with an eviction?
A. Section 8 is the name for various Housing and Urban Development rental assistance programs. Whether a landlord may simply refuse to participate (or stop participating) in a Section 8 program is a hot legal topic in California and throughout the country. So, to simply stop accepting Section 8 based on a belief that the landlord suspects that the tenant is dealing drugs is probably not the best bet under the circumstances.
Instead, the landlord should promptly notify HUD and the Housing Authority of the suspected drug dealing. This may prompt an agency to get involved and resolve the matter—but don’t hold your breath. In conjunction with this, the landlord should continue to independently investigate the matter, by installing cameras, interviewing neighbors, hiring an investigator and obtaining police reports, among other means.
Illegal use of the rental unit is grounds for eviction under state and local law and grounds for terminating a Section 8 tenancy. So, if a landlord is able to establish that the Section 8 tenant is illegally dealing drugs in the unit, then the landlord may take steps to evict the tenant. The landlord should be aware that there are often additional requirements when serving a Section 8 tenant with a termination notice, so the landlord should consult with an attorney when doing so.
—Steve Williams
Q. I served an eviction on one of my tenants for not paying rent for two months. Rather than respond to the unlawful detainer, she abruptly moved out without giving any notice and left all of her stuff behind. Can I seize these items in lieu of her back rent? If not, what should I do with them?
A. There is a detailed process for landlords to deal with abandoned personal property left in residential units. Simply seizing the personal possessions in lieu of the back rent is not an option.
First, you must give written notice to the former tenant or any person you reasonably believe to be the owner of the abandoned property. The notice must describe the items in a manner so that the owner of the property can identify them. The notice must also advise that reasonable costs for storage may be charged before the property is returned, identify where the property may be claimed and give the date before which the claim must be made by the former tenant. The date specified in the notice must be a date not less than 15 days after the notice is personally delivered or, if mailed, not less than 18 days after the notice is mailed. If you don’t know the former tenant’s new address, mail the notice to the “last known” address, namely the vacated unit. During this waiting period, you are required to exercise reasonable care in storing the property.
The SFAA has “Notice of Right to Reclaim Abandoned Personal Property” forms available. They come in two formats: one for items abandoned where the total resale value is reasonably believed to be less than $300 and the other if the items are reasonably believed to have a resale value of more than $300. The difference in value of the items is important as the landlord’s obligations differ based on the value, should the tenant not reclaim the property.
Assuming the former tenant contacts you within the waiting period to collect her property, you can require she pay the reasonable storage costs before releasing the property. If you are not contacted within the waiting period, and the value of the property abandoned is less than $300, you are allowed to dispose of the property or simply keep it yourself, provided you have followed the proper notice procedures.
However, if the total resale value of the abandoned property is over $300, and no one has contacted you within the waiting period, you are obligated to hold a “public sale” of the items by competitive bidding, similar to an auction. This process requires that public notice of the sale be published at least once a week for two consecutive weeks in a newspaper in the county where the sale is to be held. The last publication of the sale notice must be at least five days before the actual date of the sale. The public notice must also list the date, time and location of the sale, as well as list the property to be sold. Anyone can bid at the sale, including the former tenant or even the landlord.
After the sale is held, you are allowed to deduct from the proceeds the costs of storage, advertising and the sale. However, any balance of the proceeds of the sale must be sent to the county treasurer. Note that you cannot deduct any unpaid rent from the sale proceeds.
The costs of holding a public sale often far exceed any reimbursement from the actual proceeds from the sale, leaving the landlord at even a greater loss. As such, all attempts should be made to get in contact with your former tenant and get them to collect their property. Even giving the tenant a little more time to collect their property or waiving the storage costs is often far less expensive than actually having to go through a public sale.
—Marina Franco
Q. A tenant went on a trip and accidentally brought back bedbugs in her luggage. This has been costly and annoying to remediate. Can I somehow charge the cleanup costs to the tenant for creating this nuisance?
A. Despite their near eradication 50 years ago, bedbugs are making an alarming comeback in the new millennium. Between 2000 and 2005, the nation experienced a 71% increase in reports of bed bug infestations. San Francisco is no exception, with reports more than doubling from 2004 to 2006. This epidemic prompted the San Francisco Department of Public Health to establish regulations surrounding the removal and prevention of bed bugs.
San Francisco Health Code Section 581 (a) prohibits any owner, occupier or controller of real property to maintain on it a public nuisance. San Francisco Health Code Section 581 (b)(8) declares a bed bug infestation to be a public health nuisance. The regulations place duties on both the landlord and the tenant in dealing with a bed bug infestation. A tenant has the duty to notify the landlord of bed bugs, to cooperate with pest control and to prepare the unit for treatment. In turn, the landlord must respond to a bed bug complaint by preparing a plan of action within 48 hours of the complaint and implementing that plan within 72 hours. The eradication plan must include providing pest control treatment to all of the units adjacent to the infested unit. If the landlord and/or tenant violates these rules, then they are subject to an administrative penalty. Although these rules govern prevention and treatment of an infestation, they do not address the issue of who must bear the cost.
Since the landlord has the duty to implement an eradication plan within 72 hours of notification of the problem, then reason dictates that the landlord has to bear the cost. The landlord may be able to shift the cost of eradication to the tenant by taking the position that the tenant, by admittedly bringing bed bugs into the apartment, has committed waste. Waste in this context is defined as an act or omission by a tenant that causes permanent injury to the property by substantially depreciating its market value. Bed bugs spread quickly from unit to unit, are extremely difficult to eliminate and can seriously affect a person’s quality of life. As a result, bed bugs can have a significant negative impact on the market value of a rental property to renters and even to potential buyers.
The best method for shifting the cost of bed bug eradication to the tenant is through a provision in the lease. Lease agreements often contain express covenants that hold the tenant responsible for repairs caused by her own fault or negligence. California law holds that a tenant must use ordinary care to preserve the leased premises and refrain from causing damage to the property. If the landlord and tenant have a lease with such a provision, then the landlord should implement the bed bug eradication plan in accordance with the San Francisco Health Code and then send an invoice to the tenant. To avoid surprises, it is recommended that the landlord send a written notice to the tenant after being advised of the bed bug problem, identifying the response plan and invoking the repair provision in the lease as the basis for recouping the cost of the remediation.
If the lease does not provide for the landlord to be reimbursed for actions by the tenant that cause harm to the property, then the landlord should implement the eradication plan and simultaneously open a dialogue with the tenant about the situation. Make the tenant aware that the bed bug problem was caused by her actions and work together to reach an agreement for the tenant to reimburse the landlord for the remediation program’s costs. While reliance on a written clause in the lease is the stronger position, appealing to a tenant’s sense of fairness when the lease does not address the issue may prove to be surprisingly beneficial.
—Ronnie Gipson
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. Steve Williams is with Wiegel & Fried, LLP and can be contacted at 415-552-8230. Marina Franco is with Wasserman-Stern and can be contacted at 415-567-9600. Ronnie Gipson represents landlords in complex litigation matters and class actions against habitability claims, violations of the San Francisco Rent Control Ordinance and violations of applicable state law. He can be contacted at 510-444-6800. Copyright © 2009 by Black Point Press. All rights reserved.