SF Apartment : June 2016


Slippery When Wet

by Various Authors

Q. A tenant’s car is leaking transmission fluid all over the garage and driveway. He says he cannot afford to have it fixed, but it is creating both a mess and a hazard. Is there anything I can do?

A. Yes, there is something you can do. According to the San Francisco Rent Ordinance, a tenancy may be terminated when the tenant “is committing or permitting to exist a nuisance in, or is causing substantial damage to, the rental unit, or is creating a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building, [and] the activities are severe, continuing or recurring in nature.” In other words, the rent law permits termination of a tenancy when the tenant continues to engage in activities that impede the ability of others in the building to enjoy their housing.

In November 2015, the rent law was amended by legislation sponsored by Supervisor Jane Kim. Part of the Kim legislation edited the existing wording of the nuisance eviction provision. The San Francisco Board of Supervisors sought to prohibit landlords from evicting tenants for slight or minor nuisances. As such, the “severe, continuing or recurring in nature” phrase was added. The question, then, is whether leaking transmission fluid fits into the category of “severe, continuing or recurring in nature”.

Certainly a one- or two-time occurrence would not fit that description. However, if the tenant allows the leaks to continue and reoccur after being warned to fix the problem, and these leaks are creating a slip hazard in the garage area, then in this author’s opinion the landlord would, after issuing repeated warnings and being met with refusals to rectify the situation, be justified in issuing a termination notice based upon an ongoing nuisance. Remember, however, that before doing so the landlord must have documented warnings essentially begging the tenant to fix his vehicle.

The SFAA Residential Tenancy Parking Agreement contains language to address this situation: “Tenant agrees that the parking space (“Parking Space”) is to be used for one FULLY FUNCTIONAL automotive vehicle.” (Emphasis added.) The Parking Agreement also holds the tenant responsible for any damages caused by use of the parking space. If you have this lease language or something similar in your rental agreement, it permits you to serve a notice for breach of lease covenant, which would give the tenant three days to remedy the problem or face eviction. This may be an easier sell to the court as opposed to a nuisance notice—which has no opportunity to cure but simply requires the tenant to vacate the apartment on a certain date.

In sum, document your warnings and document the tenant’s refusal to stop the leaks. Also, document the mess on the garage floor (for example, assemble good photos). If your warnings are unsuccessful, consider issuing a termination of tenancy notice based upon nuisance or, if your lease has language that requires the vehicle to be functional, a breach of lease covenant. Will the tenant be evicted from your building at the end of the day? Maybe, but more likely the eviction action will, before a trial is necessary, prompt him to repair the car and to appropriately maintain it while parked in your building.

—David Wasserman

Q. I was duped when I inherited a tenant in a building I bought. The occupying person acted as though they were the tenant of record, but a year later he moved out and someone else moved in who turned out to be the real tenant. Do I have any legal recourse?

A. It is not uncommon for tenants to hide from their landlords the fact that they have vacated or that they have sublet their rental unit. They often do this in order to preserve their rent controlled units and rents, and sometimes even profit by charging their subtenants a higher rent.

In your case, the tenant and his subtenant pulled a switcheroo. They misrepresented their identities to you. This is a tough situation for which there should be some punishment. Unfortunately, there may be little recourse for you against the tenant. Had you known the original tenant was no longer residing in the unit and that a subtenant was residing in the unit, then you may have had some legal recourse, such as evicting them both if the rental agreement prohibited subletting or raising the rent to market rate because the original tenant was no longer permanently residing in the unit.

However, since the subtenant is no longer residing in the unit, you cannot evict for breaching a rental agreement provision prohibiting subletting since the tenant has cured the breach. And you most likely cannot raise the rent because the original tenant has returned. While it could be argued that he was no longer the original tenant once he vacated and that upon his return he became a subtenant, thereby giving you the right to raise the rent to market rate, it would probably be a difficult case to prove and prevail. In any event, it might be worth further investigation and consultation with an attorney.

While you may not have any real recourse against the tenant, you may have recourse against the seller of the property. If the seller knew the person living in the unit was not the tenant but represented otherwise to you, and you relied on the seller’s representation to your detriment, then the seller may be liable to you for the resulting damages. You may consider consulting an attorney to explore whether there may be any potential liability by the seller.

—Steven Williams

Q. Two years ago, I had a fire in my building. Due to the damage, all the tenants had to move out. The repairs are almost complete. Do the former tenants have priority over other persons who might want to rent the units? If the former tenants return, am I allowed to bring the rents to market value or do I need to keep the same rents they had before?

A. Yes, the former tenants have priority and must be given the option to resume their tenancies at the rent-controlled rates. You are permitted, however, to file a capital improvement petition with the San Francisco Rent Board for approval to pass through a portion of the cost of the work done on the property to the tenants.

The procedure for handling tenants displaced by a fire is governed by section 37.9(a)(11) of the San Francisco Rent Ordinance and section 12.15 of the Rules and Regulations. When work to be done on a unit would make it hazardous, unhealthy or uninhabitable—whether because of a fire or any other cause—owners can recover possession of the unit while the work is being done.

The first step is to obtain all necessary permits for the work. The next step is to have an attorney prepare a written notice temporarily terminating the tenancy. There are numerous requirements for this notice, including, for example, a description of the work, the approximate date when the tenant can reoccupy the unit, the lawful rent, a statement that the permit applications and plans are available for viewing at the Central Permit Bureau, and notice that tenants have the right to seek advice from the rent board.

The notice must be legally served on the tenants, and must be accompanied by a check for half the relocation fee, copies of the permits, and Rent Board Form 1007. The second half of the relocation fee must be paid when the tenants vacate. If the relocation is for less than 20 days, the relocation fee is governed by Civil Code section 1947.9, not the rent ordinance. This section requires $275 be paid to each tenant household, plus actual moving expenses if their personal belongings need to be moved.

The owner has three months to complete the work. If the work is going to take longer, the owner must petition the rent board for an extension. If the owner knows the work will take longer than three months before the work begins, the petition must be filed and served before service of the notice temporarily terminating the tenancy.

Once the work is complete, the owner must immediately notify the tenants in writing, offer the units to the tenants, and permit the tenants to reoccupy the units. The tenants have 30 days to respond to the offer and 45 days to reoccupy the units.

If you do not notify the tenants that the work is done and the units are ready to be reoccupied, the tenants can file rent board petitions for the difference between the rent-controlled rate for the unit and the tenants’ replacement units.

Failing to comply with the rent ordinance after a displacement event gives rise to claims for wrongful eviction that carry significant potential liability for owners. The bulk of the claims in this example are barred by the one-year statute of limitation, but savvy tenants could petition or sue for damages for the past year.

—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. Steven Williams and David Semel are with Fried & Williams, LLP and can be reached at 415-421-0100.