SF Apartment : January 2017

LEGAL Q&A

Nuisance Neighbors

by Various Authors

Q. A tenant in one of my buildings plays his TV and music loudly, sometimes until three in the morning. I have received many complaints from other tenants, a few of whom reported that when they’ve asked him politely to decrease his noise levels, he’s lost his temper, and now they feel threatened. What can I do to remedy the situation?

A. Although tenants can sometimes work out these lifestyle disputes among themselves, landlords also have an obligation to quell disturbances caused by other tenants. A tenant who is disturbed by loud noises, noxious smells, or other nuisances can assert a claim against the landlord for reduced housing services at the Rent Board, or for “constructive eviction” in civil court if the disturbance is so great that the complaining tenant moves out.

To avoid liability, you should take firm but reasonable measures to resolve the conflict. First, advise your complaining tenants to call SFPD for future disturbances, who should investigate and generate a report. Next, warn the problem tenant informally, such as talking to them personally or sending an email. If the tenant does not respond, you should send a formal written notice to cease, which states specific conduct they should stop, and permit them 10 days to “cure” (i.e. stop) the offensive behavior, with instructions explaining exactly what to do (i.e. stop playing loud music after 10 p.m.). An attorney’s assistance is recommended in formulating these kinds of notices, and to ensure that it is served (i.e. delivered) to your tenant properly. If the tenant continues to cause a nuisance, you should proceed with an eviction.

If you have a written lease with the problem tenant, make sure that it has a paragraph or clause that prohibits causing a nuisance, or behavior that interferes with the quiet enjoyment of other tenants. Section 37.9(a)(2) of the San Francisco Administrative Code allows the landlord to evict a tenant for substantially violating a material term of their lease. Otherwise, Section 37.9(a)(3) permits the landlord to evict if the tenant is “…creating a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building, the activities are severe, continuing or recurring in nature[.]”

Noise complaints typically leave no physical evidence, so having police reports and friendly tenant witnesses are your best chance at proving your case.

Unfortunately, San Francisco juries are notoriously reluctant to rule against tenants for something as common as excessive noise. Keep this in mind when considering settlement opportunities before trial.

The difficulties in prosecuting noise nuisance cases can leave an opening for mediation. In addition to professional and community organizations, the Rent Board provides its own mediation services, which can be a much more affordable solution than undertaking the uncertainty and expense of a trial. This is also an opportunity for neighbors to participate and explain their grievances. However, there may be no alternative to litigation with a hostile or recalcitrant tenant.
Finally, make sure that you are responding to complaints fairly and even-handedly. Don’t give the problem tenant an opportunity to claim that you are discriminating against them if other tenants are allowed to bend the rules in similar ways. If the problem tenant has been lodging their own complaints, make sure they are addressed just as vigorously.

—Matthew P. Quiring

Q. Can I screen new subtenants if I have no intention of adding them to the lease?

A. The answer is yes, you can. However, this author emphatically advises that you do not screen new subtenants.

As many landlords know, the local rent law permits tenants to bring in subtenants under three circumstances. One, a departing master tenant may be replaced with a subtenant by the remaining master tenant(s). Two, a master tenant may move in a direct family member. Three, a November 2015 law permits master tenants to move in additional roommates provided that the total number of additional residents does not exceed established occupancy standards (usually two persons in a studio, three persons in a one-bedroom, four persons in a two-bedroom, six persons in a three-bedroom, or eight persons in a four bedroom). With these three rules in place, master tenants are now commonly adding new persons to your rentals.

In its Rules and Regulations, the Rent Board guidelines that allow a landlord to accept or reject a proposed new occupant. In sum, a landlord may require the master tenant to provide sufficient information allowing management to conduct a typical background check. For new subtenants who are required to pay some or all of the rent, the master tenant must, if requested to do so by the landlord, provide credit or income information.

Many legal practitioners in this industry, including this author, vehemently believe that owners who request this screening information run the serious risk of establishing a co-tenancy relationship between the landlord and the new occupant(s). The creation of a co-tenancy may subsequently prevent the landlord from imposing an unlimited rent increase under the state law known as the Costa-Hawkins Rental Housing Act, which permits an unlimited rent increase when the last master tenant no longer permanently resides in the rental unit. In other words, if you as the owner go down the path of screening, approving, and otherwise formally acknowledging the new additional occupant, then you may jeopardize the ability to decontrol the apartment should all master tenants vacate and leave behind any subsequent occupant(s).

Understandably, this position defies common sense. Many owners like to know the people who live in their buildings. Indeed, in most of the state where there are no serious rent control laws, you would always screen new roommates and likewise almost always add them to the lease. Yet here, where residents fight vigorously to maintain low rental rates, taking any unnecessary risks that potentially undermine the ability to increase a stabilized rent to market is unwise. Besides, a careful reading of the rent regulations will reveal that a landlord has very little if no power to disapprove of a new roommate unless the defined occupancy standards are exceeded. Therefore, good management entails a complete divorce from the subsequent occupant screening process. To that end, let your master tenants know about the occupancy limitations, and advise them that all new roommates will be their tenants, not yours; and that rent will only be accepted from the master tenants; communications will only go between management and the master tenants; non-emergency repair requests will only be accepted from the master tenants; and the master tenants, not you as the landlord, bear full responsibility to screen and select any lawful subtenant.

—David Wasserman

Q. We have a third-floor tenant who is complaining about a second-floor tenant who smokes in his apartment. Besides the odor being overall unpleasant, they are worried about possible health risks. However, the smoking tenant signed a smoking-optional lease several years ago. What can I do?

A. Simply because your lease authorizes the tenant to smoke inside his rental unit does not mean that you have no recourse when another tenant is complaining about the second-hand smoke. For instance, even when permitted by the lease, your tenant may not be authorized to smoke in certain areas of the building, such as common areas and near other tenants’ doors or windows. And your tenant’s smoking, even if done within his unit, cannot bother other tenants in the building.

If the odor and smoke from your tenant smoking are wafting through common areas and neighboring units, then this may not only create a health risk but may create a nuisance or interference with neighboring tenants’ rights to quiet enjoyment. The San Francisco Rent Ordinance authorizes a landlord to terminate a tenancy when the tenant commits a nuisance in a rental unit or creates a substantial interference with comfort, safety, or enjoyment of the landlord or other tenants in the building.

But nuisance evictions are not easy and may require advance warning and opportunity for your smoking tenant to take steps to abate the nuisance. You may consider informing your smoking tenant that complaints have been received from neighbors who are experiencing difficulty from second-hand smoke and are concerned about their health and that failure to remedy this behavior may lead to an eviction. It is advisable to document this in writing.

In addition to warning your smoking tenant, because smoking is authorized by the lease, you may consider taking steps to help confine the smoke to his unit, such as sealing gaps around doors and windows and providing better ventilation. This will help show your good faith, which is required for an eviction in San Francisco.
If the nuisance continues and you continue receiving complaints, then you may consider evicting the tenant for nuisance.

—Steven Williams

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 Law Offices and can be reached at 415-567-9600. Steven Williams and Matthew P. Quiring are with Fried & Williams, LLP and can be reached at 415-421-0100.