SF Apartment : August 2016


Water Woes

by Various Authors

Q. Do I have to wait for units to vacate before installing individual water meters, or can I install them as tenants are due for a rent increase? If the latter, would I have to forego the rent increase in order to install the individual water meter?

A. There is no direct connection between rent increases and installation of individual water meters. In most cases, the lease or rental agreement covers whether or not the tenant pays for utilities, including water. If the individual premises had not been previously separately metered, the landlord normally makes a division based upon some rational and objective standard for dividing the common water bill. Sometimes it’s based on number of units, sometimes on the number of occupants per unit, or square footage, but the method should always be designed to give a reasonable approximation of the units’ actual water usage. When separate water meters are installed, there is no longer a necessity for estimation, but rather the tenants are then responsible for their own bills, which are precisely known. This really has nothing to do with a rent increase. In fact, where the tenant has responsibility for payment of water, it has nothing directly to do with rent at all.

However, in other cases, the lease or rental agreement provides that the owner will pay for utilities, including water. The tenant’s rent is intended to cover those costs as well as the other costs and profit that go into rent. If that is your situation, then separately metering the units and holding the tenants responsible for paying their individual metered bills will affect rent and an annual rent increase only indirectly. Really, what the new circumstances amount to is a reduction in housing services (i.e., the landlord previously supplying water without charge), that would require a 30-day notice changing the terms of tenancy, and would result in a rent decrease.

Generally, the rent board would find that the amount of the rent reduction would roughly approximate the amount that the tenant now has to pay for water as a result of the individual metering, water that was previously paid for by the landlord. Thus, in this situation, when notifying the tenant of the change in 
service, you should also notify the tenant of the reduction in rent that you are offering. The Rent Ordinance provides that a reduction in service without a 
corresponding reduction in rent is a rent increase. The tenant would be free to 
accept that, or if the tenant disagrees with the amount, to take you to the rent board for a decision by an administrative law judge. The effect on the annual rent increase would be felt only because the annual allowable increase would now be applied to a lower base rent, if the reduction occurred before you give the rent increase. If the reduction occurred after the rent increase was already given, it would only affect the following rent increase.

Separate metering certainly has its advantages, but increasing revenue by no longer being responsible for supplying water free of charge is generally not one of them. Of course, if a particular tenant uses an inordinate amount of water, there may still be a benefit, especially where there are increases after the meter has gone in.

—Saul M. Ferster

Q. Am I required to disclose a death in the apartment? Is there a statute of limitations?

A. If a death occurred upon the real property, then California state law requires the owner of the property, or his or her agent, to disclose the death to the prospective tenant before the owner rents the property. Generally, the circumstances surrounding the death must also be disclosed. However, if the death was caused by Human Immunodeficiency Virus (HIV), then the owner cannot disclose that fact to the prospective tenant. In a HIV-related death, the owner must disclose the death but not that the cause of the death was HIV.

The death must be disclosed to prospective tenants for up to three years from the date of the death. Thereafter, the law provides that no cause of action shall arise against the owner for not disclosing the death.

—Steve Williams

Q. I was recently notified that a neighbor is doing work on his home. How do I notify the tenants? What do I do if they complain about the noise?

A. There is no requirement that you notify your tenants about a neighbor doing work on his or her home, but it is certainly good practice to tell them about San Francisco’s Noise Control Ordinance and ask them to notify you if there is a problem. You can communicate this verbally or in writing, but if you are concerned about a particular tenant, it is best to send them a letter.

The ordinance permits residential noise between 7:00 a.m. and 8:00 p.m., seven days per week, including holidays. The noise level cannot exceed five decibels over the ambient noise level. In multi-unit residences, the noise level is measured three feet from any wall, floor, or ceiling, while in single-family residences it is measured at the lot line. Noise between 8:00 p.m. and 7:00 a.m. or noise exceeding the decibel limit is unlawful without a special Public Works permit. (Note that different standards apply to construction on a construction site.)

If your tenants complain about the noise, you have some options. If your tenants complain about noise that violates these guidelines, the best approach is to first speak with the contractor or property owner about the problem. They might be understanding and willing to take steps to reduce the noise, and in the process you will probably not alienate your neighbor or their contractor. If this informal approach does not work, contact a city agency.

Several city agencies are responsible for enforcing the Noise Control Ordinance, including the Police Department and Department of Building Inspection. If there is a violation in progress, you can call the Police Department non-emergency line at 415-555-0123 and give the exact property address, a description of the problem, and your contact information—or you can remain anonymous. You can also lodge a complaint with the Department of Building Inspection by calling 415-558-6220.
If the tenants complain about noise that does not violate the ordinance, it is appropriate to inform the tenant that you will speak with the contractor or owner about the problem but that they have no legal obligation to accommodate the tenant.

As always, it is wise to confirm verbal discussions in writing in case a legal dispute arises.

If the problem persists despite your calls to city agencies, and the noise violates the ordinance, you can take legal action to obtain an injunction to abate a private nuisance. If one or more of your tenants vacates because of the noise, you might also be successful in a civil suit for money damages for nuisance. The contractor or owner, through vicarious liability, could be found liable for a private nuisance, which exists when the level of noise causes extreme discomfort and annoyance to neighboring residents, has an impact on the residents’ ability to use their property, affects their ability to sleep, or otherwise interferes with the comfortable enjoyment of life and property.

—David Semel

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