SF Apartment : February 2018

LEGAL Q&A

On the Safe Side

Q.  Can I legally say that I don’t want to rent a unit to families with young children because I feel the apartment itself is not suitable for children?

A. No. Unless your property is government approved and designated for occupancy by only the elderly, regardless of your personal opinion on suitability, you would be violating state and federal law if you were to refuse to rent to families with children. The federal Fair Housing Act prohibits discrimination in the renting or sale of housing based on the following protected classes: race, color, religion, sex, national origin and familial status. The state’s Fair Employment and Housing Act essentially mirrors the FHA in this regard. This last class, familial status, applies to any household with a child under the age of 18, living with a parent or legal guardian, or a designee of either. Therefore, if you were to deny housing to families with children, you would be in direct violation of these laws.

In fact, landlords cannot even steer families away from or toward certain properties. Whether you believe certain areas or units are less suitable for children should not dictate how you show or lease your property. Furthermore, you cannot discourage housing in any way from a tenant who is pregnant, adopting a child, or in the process of gaining custody of a child.

If you feel your apartment is unsuitable for children based on safety reasons, you should instead address those unsafe conditions that would benefit all tenants. If there are conditions that cannot be remedied by you, then, if you choose to do so, highlight these issues to all prospective tenant applicants. In other words, be very careful to always mention your safety concerns to every applicant, not just to families with children.

—David Wasserman & Elizabeth Kershaw

Q.  A tenant and her subtenant (her boyfriend) are applying for a joint tenancy in a new, larger one-bedroom apartment in the same building. The subtenant has credit history below the building’s standard. If I allow only the tenant to sign the new rental agreement, and assume she will bring her boyfriend along as a subtenant, does the subtenant have a sound claim to the apartment and rental agreement if the original tenant vacates?

A. Let’s explore two interrelated concepts: contract rights and rent control. Landlords contract with their tenants, and tenants are often able to sublet. This just means the person who received the contractual right of possession from the landlord is contracting with someone else for a (lesser) right of possession. 

In rent-controlled cities, we also have something called an “original occupant”—a term that comes from California’s Costa-Hawkins Rental Housing Act. A tenancy only maintains rent control while an “original occupant” lives there. When that person moves on, you can generally increase the sublessee’s rent. However, someone can be an “original occupant” without being a master tenant. A pair of appellate decisions in 2015 decided that even a kid could be an “original occupant” (as long as he moved in along with mom and dad) when the kid becomes an adult and the parents move out. A sublessee is not necessarily bound by the contract like his master tenant (a kid can’t even sign a lease), but both sub and master tenant can be rent-controlled “original occupants.”

The boyfriend’s “sound claim to the apartment” is a contract issue. Assuming she leaves and he stays, it is technically a “just cause for eviction” that the “tenant holding at the end of the term of the oral or written agreement is a subtenant not approved by the landlord.” As a matter of contract, you could disclaim any direct relationship with him. But recovering the unit on this basis would be difficult. He’s already living in your building and may have evidence you were aware of him moving into the new unit, even if the lease doesn’t acknowledge him.

And you don’t gain much by ignoring him from the start, as the city has significantly limited a landlord’s ability to police subletting over the years. The 1999 Leno Amendment preserved the right for master tenants to have a specific number of occupants and eroded the ability to enforce a lease that prohibited subletting if the landlord “unreasonably withheld the right to sublet.” (Supposedly, your reasonable refusal can be based on inability to pay rent, but you don’t want to accept rent from a subtenant anyway, because then they become an original occupant!) The 2015 Jane Kim Amendment added an extra-contractual right to request a specific number of occupants (two per studio, three per one-bedroom, four per two-bedroom, etc.), regardless of limits in the lease itself. If the girlfriend were to leave, you’re left with a weak basis for eviction against someone who could likely prove that he’s a rent-controlled original occupant.

The best strategy going forward is to avoid establishing a direct tenancy with any subsequent occupants in the future (assuming these two don’t live happily ever after). Since you’re unlikely to thwart the boyfriend’s “original occupant” status (and SF rents seem to have plateaued for the moment anyway), your strongest play for now is just to safeguard against a defaulting tenant: you want both on the lease. If either moves out, both are still obligated by the contract to make sure the rent gets paid.

—Justin A. Goodman

Q.  Earlier this year, I rented storage space to a tenant. I just discovered that he is no longer living in the unit, but he is still using the storage space. What can I do?

A. The disposition of personal property left behind after a tenancy has terminated and the premises have been vacated is governed by Code of Civil Procedure sections 1980 through 1991.

You must give written notice to the tenant and anyone else you believe is an owner of the personal belongings left in the unit. The written notice must describe the belongings in sufficient detail to permit the owner of the belongings to identify them—but you do not have to describe belongings to which you do not have access, such as anything stored in a locked or fastened trunk, box or other container.

You must store the belongings with reasonable care but are not liable for any loss not caused by your deliberate or negligent act. The written notice must advise the former tenant or other owner of the belongings that storage costs may be charged before the belongings are recovered, the address where the belongings may be claimed, and the last date for claiming the belongings. The last date must be 15 or more days after the notice is personally delivered to the former tenant or other owner, or at least 18 days after the notice is mailed to the person’s last known address. If the notice is mailed to the former tenant, one copy must be sent to the premises vacated by the tenant or, if the former tenant provided an email address, the landlord may also send the notice by email. Code of Civil Procedure section 1984 provides a form designed to meet the requirements of the written notice.

If the belongings are claimed by the deadline, you must release them to the former tenant or owner if they pay the reasonable cost of storage. You cannot charge for storage if the belongings remained in the dwelling and were claimed within two days of the vacate date.

If the belongings are not claimed by the deadline and are believed to be worth less than $700, they may be kept, sold or destroyed without further notice. Donating them is presumed acceptable a well. If the belongings are worth $700 or more and the notice stated they would be sold at a public sale, you must still release them to the tenant in exchange for the storage cost if they are claimed before the sale. Otherwise, the belongings shall be sold at a public sale by competitive bidding, with notice published in a general circulation newspaper. The proceedings after deducting storage and sale costs shall be paid to the county treasurer and may be claimed by the former tenant or owner within one year of the date of payment to the county.

—David Semel

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. Elizabeth Kershaw is the director of legal affairs at Parkmerced and can be reached at 415-405-4600. Justin A. Goodman is with Zacks, Freedman & Patterson, P.C. and can be reached at 415-956-8100. David Semel is with Fried & Williams, LLP and can be reached at 415-421-0100.