Legal Q&A

No Place Like Home

written by Various Authors

If a tenant decides they want to extend their tenancy beyond the agreed-upon term, does a landlord have any recourse?

Q. I purchased a condo, but I wasn’t able to move in for 8 months. In the meantime, I signed a six-month lease with a tenant. I’m almost ready to move in, but the tenant has changed his mind and no longer wants to move out. Am I out of luck?

A. You’re out of your home, but not out of luck. San Francisco rental laws are onerous, but the city must actually allow you to live in your home if you want.

We’ll assume this is a covered “rental unit” (one built on or before June 13, 1979), or else you would just serve a thirty-day notice of termination under state law without a “just cause” requirement. (Tenancies over a year get sixty days.) It’s also worth noting that, even if eviction controls do apply, condominiums are generally exempt from rent control under Costa-Hawkins. As the term lease is over, you can increase the rent. However, while some landlords in this situation have served big rent increase notices and recovered the units when the tenants couldn’t afford the new rate, the city’s new Ord. 5-19 will scrutinize a landlord’s motivation, making these pretextual rent increases a misdemeanor. So let’s consider your other options. (SFAA has filed a lawsuit against Ord. 5-19. For more information, turn to page 8.)

The most obvious fit here is an “owner move-in” eviction. You’ll need to move in within three months and live there for thirty-six months.. You can’t own a vacant, comparable unit (or you need to live in that one instead). Normally, you’d pay relocation assistance, but your tenant needs to live there for a year to be eligible.

The short tenancy also means that many of the normal defenses (like age and disability) won’t apply. However, OMI notices cannot expire during the school year if your tenant is an educator or has a child. (Last day of class this year is June 4, 2019, so you’re luckier than you think, if you’re getting this in the April issue.) If you don’t mind price constraints for five years (at the current rent for any new tenants), your obligation to primarily reside there for three years, and newly minted occupancy reporting requirements, this is one of the more straightforward OMI evictions.

And to be clear, your tenant never had any obligation under the rent ordinance to move after six months, as he became a “tenant” in a “rental unit” after 32 days. On the other hand, while unclear from your question, your tenant may have induced you to lease to him, perhaps on uncommonly favorable terms, promising to leave when you were ready to move home. Now he’s tricked you into taking on the above burdens, including OMI constraints.

If this is the case, your tenant led you to your detriment to gain more time in the rental, under favorable terms. He may end up staying long enough for relocation assistance. You may want to consider whether you have a claim for fraud. This won’t lead to possession any sooner or easier than an OMI, but the settlement of these claims may encourage your tenant to keep his word. (In a broad sense, this is “consideration” for vacating, so be sure to comply with San Francisco’s buyout ordinance to be safe.)

—Justin A. Goodman

Q. A tenant got an emotional support dog—but it’s a 200+ pound English Mastiff. She lives in a junior one-bedroom apartment in an 8-unit building inhabited by mostly families. I’m concerned that the space is too small for the dog, and I have no idea if the dog has been trained to be around small children. Is there anything I can do to ensure the safety of my other tenants?

A. The Fair Housing Act (FHA) and the Americans with Disabilities Act make it unlawful for a landlord to refuse a reasonable accommodation to a tenant with a disability who requests to keep a comfort or emotion support animal (ESA), even when the landlord’s policy explicitly prohibits pets.

A reasonable accommodation is a change in rules, policies, practices, or services so that a person with a disability will have an opportunity to use and enjoy a dwelling unit or common space. A landlord is not required to provide an unreasonable accommodation for a disability. An unreasonable accommodation is one that causes an undue financial or administrative burden or poses a direct threat to the health and safety of others. Even if a request is unreasonable, a landlord should discuss alternative reasonable solutions and accommodations.

An ESA is an animal that helps people with mental disabilities, such as anxiety, depression, autism, or post-traumatic stress. For an ESA, there are no species or breed restrictions. In other words, an ESA could be a cat, dog, lizard, bird, snake, or 200-pound English Mastiff, so long as that breed of animal is lawfully permitted in the city and state. An ESA does not need to have any special or formal training nor perform any physical task.

However, this does not mean that a tenant can bring a violent animal into the rental unit or one that creates a nuisance. The tenant is obligated to ensure that the ESA does not disturb others or damage the rental unit.

You could request that your tenant sign an ESA Agreement as an amendment to the lease. This should outline additional terms, such as 1) tenant agrees to be liable for any damage caused to the property not covered by the initial deposit, 2) tenant agrees to be liable for any injury to a person or damage to the property caused by the ESA, 3) tenant agrees to keep their animal from being a nuisance and will remedy immediately any complaints to the best of their ability, and 4) tenant agrees to acquire licensing and proof of proper vaccinations. 

—Angelica Sandoval

Q. I denied a tenant application because of several late payment marks on her credit report. She was surprised by the denial because the late payments on her credit report occurred more than 18 months ago. After sending a denial notice, should I engage in further discussions with applicants?

A. No. Communicating with a tenant after denying an application carries the risk of a discrimination claim. As a housing provider, a landlord has an obligation under California’s Unruh Civil Rights Act to not discriminate against any applicant based on sex, race, color, religion, ancestry, national origin, age, disability, medical condition, genetic information, marital status, or sexual orientation. An aggrieved or disappointed applicant may take whatever explanation the landlord offers for the rejection as evidence of discrimination under any of those categories.

Along with proper screening, one of the most important things to do when considering tenant applications is to treat the applicants fairly. Before accepting applications, a landlord should adopt a written policy and standards for screening potential tenants. This will guide the landlord to help ensure that each application is held to the same standard as all the others and minimize the opportunity for a discriminatory decision. Choosing the first qualified applicant will also help minimize claims of discrimination from among otherwise qualified applicants.

Landlords should be aware that applications do not just come from prospective tenants, but also advocacy groups. These groups will sometimes have someone pose as an authentic applicant (known as a “tester”) to inquire about rental listings, and then indicate that they may have a disability, or are a member of some other protected class. If the landlord rejects this faux-applicant, the advocate may refer the application rejection to the Federal Department of Fair Employment and Housing for a potential discrimination complaint, which can result in damages, anti-discrimination injunctions, and other penalties.

The best way for landlords to protect themselves from such claims is to have clear, non-discriminatory criteria for evaluating rental applications, and apply them in a fair and consistent way. This will help prevent claims from arising and create evidence to rebut claims after they have been made. In addition, minimizing communication with rejected applicants reduces the opportunity for an applicant to obtain evidence of discriminatory treatment.

Responding to a rejected tenant may help defuse a question of discrimination, such as explaining that the application failed a credit check, when the tenant might believe it was because of their sexual orientation or national origin. On the other hand, providing a specific reason opens the landlord to further interrogation about that reason. Accordingly, although each rejection should be for a specific reason, the landlord should consider keeping the explanation as general as possible, such as simply stating that the application failed to meet the landlord’s required standards.

Except for this kind of rejection notice, continuing to communicate, debate, explain, or justify the rejection is simply a way for a tenant to generate evidence for a claim against the landlord, and should be avoided.

—Matthew P. Quiring

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Justin A. Goodman is with Zacks, Freedman & Patterson, P.C. and can be reached at 415-956-8100. Angelica A. Sandoval and Matthew P. Quiring are with Fried & Williams LLP and can be reached at 510-625-0100.