Legal Q&A

By the Back Door

written by Various Authors

Without permission from the master tenant, landlords shouldn’t grant entry to units (even to subtenants).

Q. What is my obligation to a subtenant? One I’ve never had contact with called me and claimed they were locked out of the unit. They asked me to let them in or to call a locksmith. 

A. You not only have no obligation to provide access, but you should also be very cautious in allowing a stranger to access your tenant’s unit. Most modern leases (like the SFAA Residential Tenancy Agreement) prohibit subletting without prior approval of the landlord. And while the need for approval has been sharply curtailed over the years in San Francisco, the relationship between the landlord and their tenant remains the one that matters here.

You should treat unknown subtenants as strangers for most purposes. This instinct is ingrained into many San Francisco landlords, as earlier (pre-Costa-Hawkins) versions of the rent board regulations found rent control protections in a subtenant who successfully requested repairs directly to the landlord (via the legal doctrine of “no good deed goes unpunished”).

And while this is no longer the rule, your tenant is still the master of their own domain. They can even reserve the right to evict their roommates without just cause (and for all you know, may have done so before this request came in). In this scenario, you simply have no idea if this person is a bona fide subtenant who lost their keys and honestly cannot reach their master tenant. Unless this is true (which you have no way of knowing), you permit trespass and potential theft by allowing access, and if your locksmith must rekey the unit, you’ve potentially just wrongfully evicted your actual tenant.

Now, San Francisco Rent Ordinance §37.13 states that “a landlord shall provide a minimum of one key or key-set per rental unit for each adult occupant, without charge.” The Court of Appeal has repeatedly interpreted the term “occupant” to include a much broader category than “tenant” (and even “tenant” in San Francisco can include a subtenant).

But first, Section 37.13 is a “housing services” provision that simply seeks to provide access to all lawful occupants without additional charges. Second, while the ordinances adopting this section do not include any specific legislative intent, the language allows landlords to refuse to provide “additional sets” for good cause, including “unlawful occupancy.” Finally, this section does not say “to whom” the keys must be given. It’s a fair assumption that only the tenant who is the lawful, contractual lessee can make the request/receive the keys from the landlord. And even if this were ambiguous, sometimes—yes, even in San Francisco rental law—common sense and substantial rights must prevail over local rules. The safest thing for you and your (known) tenants is to protect their apartment against strangers, unless and until your tenant expressly asks you to allow access.

—Justin A. Goodman & Maddy Zacks

Q. After the tenant vacated, I found the bathroom full of mold and will need to have it professionally cleaned. It appears the mold growth was caused by a lack of cleaning and ventilation during the tenancy. May I deduct the cleaning costs from the deposit?

A. First, let’s review the security deposit law found in Civil Code Section 1950.5. The security deposit may be used at the end of a tenancy to compensate the owner for unpaid rent accrued before moving out, to repair damages caused by the residents beyond normal wear and tear, and to clean the apartment to the same level of cleanliness that existed when the tenancy began.

Once the residents give notice of their intention to vacate, owners should issue a written notification informing them of their right to request a pre-move-out inspection. Please use the CAA/SFAA form. If the residents opt for this inspection, you should conduct it no earlier than two weeks before the move-out at a mutually acceptable date and time. The purpose of the inspection is for property owners to identify in a written itemized statement any cleaning or repairs that may cause a security deposit deduction if not completed before the residents leave.

The pandemic has created some major challenges with regard to this step, as owners and residents alike want to avoid exposure to COVID-19. With unprecedented departures occurring beginning in spring of 2020 and lasting through winter of 2021, many renters have opted out of having the inspection, while countless landlords did not even circulate the inspection notification. Unfortunately, the security deposit law was not and has not been amended to address pandemic safety issues. Some housing providers have conducted virtual inspections, while others ask for the residents to be absent from the apartment during entries.

It is unclear if a pre-move-out inspection was sought or even offered in this instance. If you failed to offer it, then no deductions should be made. If the inspection occurred, the question becomes whether or not this problem was identified on the itemized statement. If it was highlighted, or if the resident declined to have an inspection, then the removal and treatment of excessive mold growth would probably warrant a deposit deduction under both the “damage beyond normal wear and tear” and the “cost of cleaning” allowances of Section 1950.5. Remember, proper mold remediation usually also requires partial wall and ceiling replacement in addition to a thorough cleaning.

You must send out a deposit disposition statement within 21 days after the residents left. You and your former tenants may agree to handle this communication via email. If the total amount deducted exceeds $125, make sure to include copies of the material receipts and vendor billing statements, and if you personally performed some or all of the work, you must submit your bills reflecting commercially reasonable charges for your labor. If the receipts/billing statements are not available within the 21-day period, provide an estimate and the contractor’s information. Once you obtain this documentation from your vendor, forward it to the departed residents within 14 days upon your receipt. 

Lastly, photograph this contamination and try to have the remediation professional attest in writing that the mold outbreak was likely caused by the resident’s poor housekeeping. Mold lawsuits are increasingly common, and insurance oftentimes will not cover these claims. Therefore, you will want to document that the mold presence was not created by some building defect or the ownership’s failure to properly maintain this rental unit.

—Dave Wasserman

Q. A tenant sent a signed Declaration of COVID-19-Related Financial Distress after I served a 15-day notice to pay rent or quit. She failed to provide supporting documentation. What should I do?

A. Landlords may only require tenants to provide documentation supporting a claim of COVID-19-related financial distress if the tenant’s household is “high income.” High income means a household income of at least 130% of the median income for the county where the rental property is located, as published by the Department of Housing and Community Development in the Official State Income Limits for 2020.

 If your tenant is high income, your 15-day notice to pay rent or quit must state that the tenant is required to provide documentation supporting the Declaration of COVID-19-Related Financial Distress. The problem is that many landlords don’t know much about their tenant’s income, and even less about household income.

SB 91, the COVID-19 Tenant Relief Act says that the landlord must have proof of high income before the 15-day notice is served. Without proof, the landlord should not be asking for documentation from the tenant.

 If a landlord has proof of income on file that indicates that the tenant’s household is high income, the landlord may require the tenant to provide documentation showing the tenant experienced a decrease in income or increase in expenses due to the COVID-19 pandemic.

Every 15-day notice to pay rent or quit has a blank Declaration of COVID-19-Related Financial Distress attached to it. If the tenant wishes to claim such distress as the reason for not paying rent, they must return the Declaration. If the 15-day notice required the tenant to provide documentation as proof, the tenant must provide those documents when they return the Declaration.

It is very easy for a high-income tenant to comply with a request to provide documentation in support of a Declaration. Any form of objectively verifiable documentation that demonstrates the financial impact is sufficient, including a letter from an employer, an unemployment insurance record, or medical bills may be provided to satisfy the documentation requirement.

 If you believe that your tenant’s household is high income and the tenant failed to provide documentation as you requested, you could either ask again, or wait for the day when you can evict and show the court that the tenant failed to return the Declaration as requested. The court has the authority to enter judgment because the tenant failed to comply with the state law.

But if you don’t believe your tenant is in a high-income household, then you were never entitled to proof of your tenant’s COVID-19-related financial distress.

—Clifford Fried

Q. I plan to remodel a vacant unit and know the work will be noisy. What are my obligations
to neighboring tenants?

A. In California and the City of San Francisco there is duty owned by property owners not to interfere with the quiet enjoyment of their tenants. Tenants are entitled to the quiet enjoyment of the units they rent. This right is balanced against the property owner's needs to undertake necessary repairs to a residential unit.

The law in San Francisco provides guidelines for acceptable noise levels that are permitted at residential properties. Daytime repair noise should neither be constant nor excessive. The maximum allowable dBA by San Francisco’s Ordinance without permits for constant interior noise is limited to 45 dBA during the nighttime (10:00 p.m. to 7:00 a.m.) or 55 dBA during the daytime (7:00 a.m. to 10:00 p.m.). If a machine or device, entertainment, or any combination of the same is being used, the allowed dba should not exceed more than 5 dBa above the ambient level (35 dBA sound level repeating itself for a ten-minute period).

Ultimately it will come down to how loud or intense the noise is, how long of a period the noise lasts (constant or intermittent), and if the noise is occurring during the nighttime or daytime.

A property owner is not required to notify neighboring tenants of work that is occurring in another residential unit. However, if the work will inconvenience neighboring tenants, it would be good practice to notify those tenants of the upcoming construction and work with those tenants to find solutions to reduce the inconvenience of that noise. Especially given the current circumstances where more people are working from home, if a tenant knows ahead of time of the upcoming work, that tenant can decide to move their workstation to another area in their unit. Other solutions could include providing noise canceling headphones if the work is going to take more than a few days and insulating units with rugs so that the noise can be absorbed.

By working with your tenants, you reduce the possibility of tenant complaints and you create a communication line with your tenants so that they feel comfortable bringing their grievances directly to you instead of filing a complaint with the city.

—Angelica Sandoval

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Justin A. Goodman and Maddy Zacks are with Zacks, Freedman & Patterson, P.C. and can be reached at 415-956-8100. Dave Wasserman can be reached at 415-567-9600. Clifford Fried and Angelica Sandoval are with Fried & Williams and can be reached at 415-421-0100.