Common Area Hysteria
written by Various Authors
Now that summer is here, roof decks, gardens and patios are in full swing. What should a landlord do when one tenant prevents everyone else from enjoying these shared spaces?
Q. I own a four-unit building. The tenants in one unit sit on the shared porch and drink alcohol. The tenants in the other units have complained of noise and trash. Are there limits to how shared common space
can be used?
A. Your lease may address how shared common space can be used. However, since you are asking the question, I’m assuming that it does not and that you are asking what to do in this particular situation.
Tenants are entitled to peaceful and quiet enjoyment of their residences. There can be a thin line in weighing the rights of quiet enjoyment of some tenants’ vs other tenants’ right to use the shared porch. Noise disturbances may be highly subjective; it is important to completely understand the disturbing behavior. Is the noise occurring at the property during daylight hours? During all hours? After 10:00 p.m.?
As the property owner, you have the obligation to promptly address these concerns. If you wait too long, a tenant may make a claim for a decrease in housing services at the Rent Board, or for constructive eviction in civil court if the disturbance is great enough to cause a tenant to move out.
Review your lease. Most leases have provisions prohibiting tenants from causing a nuisance and interfering with other tenants’ rights to quiet enjoyment and provisions requiring tenants to maintain the property in a clean, safe and sanitary condition. Even if your lease does not have such provisions, San Francisco’s Rent Ordinance permits you to evict on those bases.
You should first ask the tenants making the disturbance to stop their bad behavior. It would be best if this request is in writing. If this behavior persists, then a formal written notice to cease should be given to these tenants. The formal written notice should state the particular conduct they should stop and have instructions on how that behavior can be cured, i.e. stop making loud noise after 10:00 p.m., and list any violations of the terms of the lease.
If the disturbance continues, you may want to move forward with an eviction. Before proceeding with an eviction, consult with an attorney. When doing a nuisance or breach of lease eviction, you want to make sure you have enough documentation reporting the disturbing behavior, such as police reports, written complaints from other tenants, etc.
Lastly, there may be concerns regarding your tenants drinking alcohol on the porch. Is the porch completely on private property? Is the porch in the front of the building? Drinking in public is a criminal violation. Also, if these tenants are getting rowdy, the complaining tenants should be encouraged to call the police.
Q. A tenant blocks the emergency and only egress at the back of my building with her moped. I have told her that this is illegal and dangerous in person, letters, emails, and texts; I’ve served her with three-day notices to quit and posted “No Parking” signs. She complies initially, but then resumes parking at the egress, as I don’t live onsite. The police told me they can’t help because it’s private property; the fire department told me their only option would be to cite “me” for code violation. To tow, I’d have to enter a contract with a towing company, which I’d rather not do. Do I have other options?
A. Your situation takes place in the sticky middle ground between “housing services” and “nuisance eviction.” A tenant’s “housing services” include fundamental things, like repair and maintenance, as well as benefits, like laundry facilities and parking (when actually authorized). Not all housing services are stated in the lease, and often, landlord and tenant will battle over whether an unstated right arises by the conduct of a tenant’s use.
It sounds like your tenant is not specifically authorized to park anywhere, and even if such a right could come into being by conduct, your tenant still has to follow the lease and the law. The San Francisco Housing Code dictates that no automobile or other motor vehicle shall occupy any portion of an apartment except in a garage. Your reference to the “back of the building” sounds like your tenant is bringing her moped to the end of a service corridor, not the back of a garage. Worse, you point out that this is blocking the rear emergency egress, which also violates the Housing Code.
Your tenant is creating a “nuisance” that directly affects the safety of the building’s residents, and she is persisting in this dangerous conduct after repeated warnings. It’s time for you to enforce the law and start preparing for an eviction.
Nuisance evictions are initiated with a “three day notice to quit.” However, where San Francisco nuisance evictions must be “severe, continuing or recurring in nature,” I would recommend documenting your efforts to enforce the law, as well as her course of conduct, and perhaps even allow her to cure the notice, giving her one last opportunity to follow the rules.
Given that this could require significant legal fees, compared to simply contracting with a tow company, you may be rethinking this option now. I don’t usually prefer “self-help” remedies: this may change the dynamic to a fight over whether you took away parking and who should pay for impound (possibly in the form of her filing a lawsuit for “tenant harassment”), whereas an eviction lawsuit insulates you from derivative lawsuits because of the “litigation privilege.” (It’s better if the dispute is about whether your tenant is following the law than whether you are.)
A few middle ground options while you establish your paper trail for a three-day notice: If the neighborhood has permit parking, you could provide the SFMTA application for permit parking in your neighborhood and maybe even offer to pay the first year’s fee. And if you do have available parking, you could offer space in exchange for additional rent.
—Justin A. Goodman
The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Angelica A. Sandoval is with Fried & Williams LLP and can be reached at 510-625-0100. Justin A. Goodman is with Zacks, Freedman & Patterson, P.C. and can be reached at 415-956-8100.