SF Apartment : September 2017

LEGAL Q&A

A Packed House

Q.  A master tenant has rented a windowed-closet as a bedroom to a subtenant. Is this legal?

A. The reality is that, absent clear lease language defining what constitutes a permissible bedroom, the landlord may not be able to prohibit this type of living arrangement. This question highlights what has become increasingly problematic for landlords: tenants turning large closets, living rooms, dining rooms, and pantries into bedrooms.

According to the California Building Code, a bedroom is defined as a sleeping unit. Specifically, a bedroom is: “A room or space in which people sleep, which can also include permanent provisions for living, eating, and either sanitation or kitchen facilities but not both. Such rooms and spaces that are also part of a dwelling unit are not sleeping units.”

The Planning Department has further defined a bedroom as “any room which meets all of the following criteria and which is subsequently determined by the Department of Building Inspection to meet applicable Building and Housing Code Standards as follows:

• contains at least 70 square feet, exclusive of closets, bathrooms, or similar spaces;
• has at least one window opening to an area which leads either to a street or rear yard space; and,
• is clearly labeled as a ‘bedroom’ on submitted construction plans.”

Traditionally, a bedroom was at least 70 square feet, had a window, and did not contain both a bathroom and kitchen. Yet in recent years, the city has relaxed these requirements; indeed, in a recent high-profile case, the city allowed windowless rooms to constitute bedrooms. Moreover, building inspectors are hesitant to declare that a room may not be used for sleeping if such a stance will result in the displacement of tenants in the nation’s most expensive housing market.

Consequently, tenants all over town are converting non-bedrooms into sleeping units, whether they are traditional dining rooms in the Richmond District, living rooms on Nob Hill, or large closets in the Mission District.
To further complicate this matter, the Kim Law of November of 2015, which generally permits tenants to house two persons per bedroom regardless of what a rental agreement proscribes, now incentivizes tenants to transform all non-kitchen and bathrooms into sleeping units to bring in more rent-paying roommates.

After passage of the Kim Law, the SFAA Lease Drafting Committee changed the SFAA lease to include the following provision:

The Premises is a [studio, 1 bedroom, etc.] unit. No conversion of, nor any attempt to convert any other room to a bedroom is permitted, nor will any such conversion change the definition of the unit for purposes of establishing the type of unit under the provisions of the Rent Ordinance, despite or regardless of the Owner’s inaction or consent to such conversion.

This lease language permits the landlord to designate the number of bedrooms in the apartment. Not only will this designation serve to prohibit unit population expansion, but, most importantly, tenants will not be allowed to sleep in areas unsafe for sleeping. Indeed, persons living in large closets may not have the benefit of smoke detectors, emergency egress, and sufficient ventilation. Unfortunately, without a concise lease covenant defining the placing for sleeping, a master tenant may have a fair amount of discretion to “convert” large closets and other areas outside of the bathrooms and kitchen into bedrooms.

—Dave Wasserman

Q.  We have a furnished one-bedroom apartment that family stays in for a few months of the year. The rest of the year, we rent to traveling nurses or visiting professors for stays of 30 - 90 days, due to the apartment’s location. We use Airbnb’s platform for the additional marketing and insurance the company provides. Are we breaking any laws?

A. As long as your rentals are for at least 30 days, you likely are not breaking any laws.

Due to the rapid increase of short-term rentals in recent years, some jurisdictions such as San Francisco have established strict regulations for short-term rentals and new local agencies to monitor their compliance. San Francisco defines short-term rentals as those which last for a period of fewer than 30 days.

To avoid triggering the strict regulations, it is important to make sure that your advertisement listings and your rentals are for a minimum of 30 days and that all rentals are carefully documented in writing. In other words, you should have written rental agreements and documents establishing that the rentals are for periods of at least 30 days in the event your rental practices are ever questioned by a regulating agency.

Recently, hosting platforms such as Airbnb have agreed to provide the San Francisco Office of Short-Term Rentals with a monthly list of all San Francisco listings so that the city can check them with their registry. They’ve also agreed to require new hosts to be registered with the city before posting rentals and to cancel future stays and deactivate listings after receiving notice from the city of an invalid registration. The Office of Short-Term Rentals recommends that you ensure that booking calendars for all online listings clearly indicate a 30-day minimum stay.

Notwithstanding the above, even though your rentals likely do not run afoul of short-term rental regulations, they likely would be subject to the strict San Francisco rent and eviction controls. If a situation arises where a tenant refuses to leave, then the rent and eviction controls would generally restrict your ability to raise the rent and would protect the tenant from eviction without just cause. This is another reason why it is important to have a comprehensive written rental agreement that establishes the terms of the occupancy and complies with your obligations as a landlord.

—Steve Williams

Q.  As I was going through the steps to comply with the city’s fire legislation, a tenant informed me that it is against the law for property owners to check the fire alarms in occupied units. Is this true?

A. No. A landlord has the right to conduct periodic safety inspections of occupied units including inspections required under local ordinances. However, such inspections, except in the case of an emergency, require written notice delivered at least 24 hours prior to the inspection. The notice should state the address of the premises, the reason for the entry, and the date and approximate time of the entry. While many landlords and tenants have amicable relationships where such communications are verbal or inspections are conducted on the spur of the moment, it is a good practice to do written notices for all entries.

—Frank Kim

Q.  A wall heater in a unit broke and it took a contractor one week to fix it. During that week, the tenants purchased a few pricey portable space heaters and now want reimbursement. Am I required to reimburse them?

A. A landlord is obligated to undertake repairs in a reasonable time. If the repairs are not completed in a reasonable time, the tenant may “repair and deduct,” as long as the repairs do not cost more than the equivalent of one month’s rent, or file a petition for a reduction of housing services with the San Francisco Rent Board.

Whether the repairs were done in a “reasonable” time depends on the circumstances, but California law presumes that a tenant who waits 30 days before doing their own repairs waited a “reasonable” time, suggesting it would be “unreasonable” for a landlord to delay repairs the same length of time. Seven days is likely a reasonable time for a repair that requires a professional, especially if the repair was not urgent, such as repairing a heater during the summertime. On the other hand, repairing a heater in winter may be more urgent.

Similarly, if the tenants made multiple requests to repair the heater, and the landlord did not respond, then it would be good grounds for the tenants to apply to the rent board for a reduction in rent because the unit has become less habitable (or uninhabitable) without heat. That would be a process that would take far more than one week to complete, and so would not make sense for this kind of routine maintenance and repair.

In this situation, it seems likely that the tenants did not wait a reasonable time before choosing their own remedy, and that remedy was not a “repair” of the defect. Had the tenants quickly repaired the heater on their own, it would probably be worth just giving them a credit for the cost, so long as it was documented and reasonable.

However, using the breakdown as a pretense to buy new space heaters and demand that the landlord pay for them in addition to the wall heater repair is not justified.

—Matthew Quiring

Q.  I am trying to fill two vacancies in my 8-unit building. One of my tenants is displaying offensive signs in his unit’s windows that are visible from the street. I’m worried these signs will deter potential renters. Is there anything I can do?

A. “Offensive” is a highly subjective term, and it’s not clear if the sign is adult-themed, backs a candidate you dislike, or says “Go Dodgers.” But to the extent this is a legal issue, you should be thinking about two versions of a three-day notice: “nuisance” and “breach of lease.”

“Nuisance” supporting an eviction is conduct that causes “substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building.” Generally, this follows a violation of some law that exists to maintain the safety of, prevent stigma against, or preserve your ability to collect rent for the property. In other words, something about the placement or content of the sign must violate the law.

Cities can regulate expression and speech with reasonable “time, place and manner” restrictions, but policing content is a First Amendment red flag. The SF Planning Code regulates signs to “serve as effective means of communication” so long as they “do not impair the attractiveness of the city as a place to live, work, visit, and shop.” However, it (wisely) exempts signs relating to national, political, religious and charitable opinions from these regulations. It prohibits the posting of signs on private property, but it sounds like these are posted on the inside of your tenant’s window. So, whether this is driving away renters and affecting the value of your property, it simply may not violate any applicable law.

Next, we’d look at your lease. If it prohibits posting signs from windows, this would potentially support a breach of lease eviction. Courts distinguish between “trivial” and “material” breaches, and only material breaches—those that go to the object of a contract—will justify an eviction. Recent case law has found that obligations that do not primarily benefit the landlord (like tenants maintaining renters’ insurance) are not material. Your situation goes more to the object of your lease agreement—your ability to rent units at the property. However, if the signs relate to your tenant’s protected self-expression and are not actually aiming to drive away other tenants, this is a tough sell. Your efforts to recover possession based on this activity might even be considered actionable retaliation.

That said, lawsuits are part of the lawyer’s toolkit, and this might be resolved with a pleasant conversation. You might even offer a slight reduction in rent in exchange for their agreeing to a lease amendment. (As with all mutually agreed-upon changes to existing leases, this must be in writing with a notification that the tenant does not have to accept the new terms.) You’re left with the same enforceability issues for future breaches, but doing this by agreement and for compensation may enlist the tenant as a partner in a well-maintained building that is safe and hospitable for all its residents.

—Justin Goodman

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 Matthew P. Quiring are with Fried & Williams, LLP and can be reached at 415-421-0100. Frank Kim is with Eviction Assistance/Law offices of Frank Kim and can be reached at 415-752-6070. Justin Goodman is with Zacks, Freedman & Patterson, PC, and can be reached at 415-956-8100.