SF Apartment : April 2016


A Cultivation Conundrum

by Various Authors

Q. I noticed a spike in my electric bill over the past few months. When my electrician inspected the property, he found evidence of a marijuana cultivation operation in one of the units. What are my rights and how should I proceed?

A. This is a complicated issue because of the varying and somewhat contradictory laws. For instance, under federal laws, the use or growth of marijuana is prohibited. Marijuana is classified as a Tier 1 drug along with heroin and cocaine. Accordingly, the use or cultivation of marijuana is unlawful for all purposes. On the other hand, both California state laws and San Francisco local laws allow the use and growth of marijuana for persons who need it for medicinal purposes. But even state and local laws appear inconsistent—under state laws, a person may be lawfully permitted to cultivate up to 12 plants, while under local laws, a person may be permitted to cultivate up to 24 plants.

When facing a situation where a tenant is using or cultivating marijuana, the landlord should first determine whether the tenant has a medical need for the use or cultivation of the marijuana. This may be confirmed via the tenant being in possession of a medical marijuana identification card. California fair housing laws require a landlord to reasonably accommodate a person with a disability. If the tenant is unable to prove a disability or medical need for the marijuana, then the landlord may prohibit the use or cultivation of marijuana.

If the tenant is able to prove a disability and need for medical marijuana, then the reality is that landlords who try to prohibit or evict for simple marijuana smoking confined to the tenant’s own rental unit will probably lose in court. Bay Area judges and juries are typically tolerant of both medical and recreational marijuana use.

On the other hand, the cultivation or sale of marijuana is a bit more problematic, and the prohibition of or eviction for such activities might be treated differently by judges and juries—depending on the circumstances. Dangers and risks may exist associated with cultivation, such as mold or electrical fires, and dangerous or violent activity could occur at a tenant’s home due to the sale or cultivation of marijuana. It is important to remember that a landlord is not required to provide a tenant with an “unreasonable” accommodation for a disability. So, for instance, if the use or cultivation of marijuana creates a fire hazard or nuisance, or interferes with the use and quiet enjoyment of other tenants in the building, then the landlord may be able to prohibit the tenant from engaging in such activities.

Because of the uncertainty and complicated laws surrounding medical marijuana use and cultivation, the landlord should consult with an attorney when facing such a situation. Each case and the approach to take will vary depending on the facts and circumstances.

Finally, if it is determined that the tenant is lawfully permitted to cultivate marijuana in the rental unit, then the landlord may seek to pass through the increased cost of utilities to the tenant.

—Steven C. Williams

Q. I own two flats. I live in one and rent the other. I plan on traveling to Europe for two months this summer and would like to sublet my own unit to help cover the costs of my trip. A friend of mine is interested in renting my unit for the summer. However, I’ve been cautioned that she could gain tenancy rights. Is this true?

A. Yes, it is true. The day she moves in and pays you rent, she becomes a tenant. There are countless stories throughout the city of owners moving in friends and then being stuck in a nightmarish situation.

Should you feel compelled to have someone move in while you are traveling, have the friend sign the current version of the SFAA Residential Tenancy Agreement and specify that the term is for two months. Most importantly, add language that states the following: “Tenant is Owner’s roommate. Tenant acknowledges that Owner resides in the Premises as Owner’s principal place of residence and, even if Owner is traveling or occasionally absent Owner does not reside principally or permanently anywhere else besides the Premises. Tenant, as Owner’s roommate, has no exclusive use of the Premises but rather shares the Premises with Owner.

Since Owner resides in the same rental unit as Tenant, Owner may evict Tenant (terminate the tenancy) without just cause under the Rent Ordinance.”
This language is important because the rent law permits a landlord who resides in the same rental unit with her tenant to evict her tenant without “just cause.”

Normally, a tenancy may only be terminated by one of the 16 just cause reasons under the rent ordinance, such as owner move-in (OMI) or nonpayment of rent. However, please be aware that many savvy tenant lawyers will argue that your subtenant is not a roommate but rather a tenant in her own right and that just cause is required to terminate the tenancy—and your total absence from the unit may lend credence to such a position. While there is no clear law on what constitutes a “roommate” versus a non-roommate subtenant, owners have lost the ability to evict without just cause when the tenant has her own kitchen or bathroom or the owner has multiple roommates/subtenants in the same apartment. As such, the insertion of this roommate language is not enough to entirely protect you.

In the event your tenant does not leave when you return and argues that she was not a roommate given your absence, you would then have to invoke just cause to terminate the tenancy. The likely just cause would be OMI, which would require you to serve a proper notice and to commit to live in the flat as your principal place of residence for the next 36 consecutive months. Moreover, this flat would become the owner move-in designated unit in the building for all future OMI evictions. In addition, the tenant could still make you go to court and argue that you are not acting in good faith, and if the court found against you, your ability to remove the tenant on this basis would be precluded.

In sum, do not sublet your flat when you travel this summer. The rent you make off of the transaction would hardly compensate you should your “friend” decide not to depart upon your return. If you do decide to enter into this transaction, please follow the lease drafting suggestions outlined above.

—Dave Wasserman

Q. We use our own lease, which says the tenant shall cooperate with the landlord to show the apartment during the last 30 days of residency. The tenant has given notice for March 15th, but said in his notice that the apartment cannot be shown until March 15th when it is vacant. Is our lease clause enforceable or should we honor the tenant’s demand?

A. Your lease clause is enforceable. The tenant’s demand is unreasonable. A landlord’s right to enter a unit for purposes of showing it to prospective tenants is governed by both the lease and by California Civil Code Section 1954. As long as there is nothing in the lease that contradicts the dictates of Section 1954, the lease clause is enforceable, unless clearly unreasonable or in violation of some public policy. Section 1954, which controls the entry of a dwelling unit by the landlord, lists the specific instances where the landlord is authorized to enter, one of which is to “exhibit the dwelling unit to prospective or actual...tenants.”

Moreover, the reason for the requirement that the tenant must give you 30 days notice prior to vacating is to give you the opportunity to find a new tenant. In other words, the law attempts to mitigate any damage that the landlord may suffer by the tenant vacating—by giving the landlord a reasonable opportunity to replace the tenant and not lose income as a result. Thus, the clause in your lease is quite reasonable and fully consistent with the intent of California law. On the other hand, the tenant’s position is thoroughly unreasonable, and unenforceable.

You should let the tenant know that he is abridging your rights under both the lease and California law, and that the tenant will be held liable to you for your lost income if, because of the tenant’s intransigence, you are unable to re-rent the premises commencing immediately upon the tenant vacating. Perhaps when confronted with a potential for several thousand dollars of liability, the tenant will relent and see things a little differently. Amazing how that can occur when there is a potential threat to one’s pocketbook.

—Saul M. Ferster

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Steven C. Williams is with Fried & Williams, LLP and can be reached at 415-421-0100. David Wasserman is with Wasserman-Stern Law Offices and can be reached at 415-567-9600. Saul M. Ferster can be reached at 415-863-2678.