SF Apartment : October 2017

LEGAL Q&A

Subtenant Sorrows

Q.  What kind of agreement should master tenants have with their subtenants so that the original or master tenant can move back to the unit? I think I lost a good tenant because the subtenants refuse to vacate.

A.  A master tenant would need a magical agreement to ensure the subtenants vacate when asked to leave. While a property owner can do an owner move-in eviction, a master tenant doesn’t have just cause to evict.

Why did you allow your tenant to sublease? Owners should be on alert when their tenant asks for permission to sublease. Even if the request is for a few weeks or the summer. Once an owner allows a sublease, the consent cannot be withdrawn and the subtenants get to stay. Should the master tenant never move back, the only remedy for the owner may be a Costa-Hawkins rent increase. However, because the subtenant was approved, he or she cannot be evicted if the original occupant has permanently vacated.

If the owner never knew about the subleasing and the master tenant permanently vacates, there is a just cause provision in the Rent Ordinance that applies. At the end of a tenancy, if the occupant in possession is a subtenant who was never approved, the owner can evict. But if the owner knew about the subtenancy and accepted rent from the master tenant, an eviction would be extremely difficult because the occupants would claim the landlord waived the eviction option by accepting the subtenants and continuing the tenancy.

As for the master tenants who don’t want to be shut out of their rental units by subtenants, care must be taken not to vacate during the subtenancy. While it might be difficult for the master tenant to force the subtenant out, there should be an agreement in place that makes it clear that the master tenant is not vacating or giving up possession to the subtenants.

—Clifford Fried

Q.  What is the difference between a service animal and a comfort animal? Are my tenants’ guests allowed in the building with both, despite my “no pets” policy?

A. This discussion begins with an admonition to all landlords that service and comfort animals, often collectively referred to as assistive animals, are not pets. Therefore, a “no pets” policy does not apply to or otherwise govern assistive animals.

A service animal is defined as an animal that is individually trained to do work or perform tasks for people with disabilities. Examples of such work or tasks include guiding people who are blind, alerting people who are deaf, pulling a wheelchair, altering and protecting a person who is having a seizure, reminding a person with a mental illness to take a prescribed medication, calming a person with PTSD, or performing other duties. Service animals are working animals, not household pets. The work or task a service animal has been trained to provide must directly relate to the person’s disability.

Conversely, a comfort animal, also known as an emotional support animal (or ESA), does not compel the consideration of training as a prerequisite for being an ESA. Rather, the ESA need only be with the disabled person to help that person function. No certification or training is required, and the ESA is not required to perform any particular function. ESAs, therefore, are most commonly utilized by persons with psychiatric rather than physical impairments. For example, a history of recurrent depression may justify benefitting from an ESA.

The SFAA has long advocated the importance of reasonably accommodating tenants with disabilities. Indeed, we distribute an Assistive Animal Packet to members who have tenants requesting an assistive animal. This packet provides documentation to (1) verify the legitimacy of the request, and (2) document the rules for residents who bring assistive animals onto the property. (For example, even though the assistive animal is not a pet and no pet deposit may be collected and a pet addendum shall not be signed, the resident must still ensure that the animal does not endanger other tenants and/or create a disturbance at the property.)

May guests bring their assistive animals onto the property despite a “no pets” policy? Yes. As stated above, assistive animals are not pets, so their presence at the apartment does not offend the rental agreement’s “no pet” covenant. Moreover, a landlord may not take discriminatory action against a tenant’s guest based upon a disability. Indeed, would you deny a seeing-impaired guest entry onto the property by virtue of a seeing eye dog? The landlord’s remedy is to disseminate the SFAA’s Assistive Animal packet’s behavioral guideline section to the tenant with a writing setting forth the rule that a tenant bears responsibility for the actions of her guests, including the guest’s assistive animals.

There is growing skepticism in our industry regarding ESAs. Many landlords are increasingly frustrated by the ease in which a tenant (or a tenant’s guest) may obtain a professional referral to procure an ESA. This debate is statewide and CAA is taking measures to lobby legislatures to revisit the disability laws. Until meaningful change is forthcoming, the landlord may only “open a dialogue” with the party requesting an ESA as a reasonable accommodation. The “open dialogue” course of action is essentially limited to what the Assistive Animal packet seeks: verification from the professional (who does not, by the way, need to be a medical doctor) that the tenant has been treated and would in fact benefit from the ESA. So, in conclusion, be careful not to deny access to tenants and even their guests who are disabled under the law and have the right to an assistive animal.

—Dave Wasserman

Q.  I received one rental application after holding an open house. When I met the applicant, I felt he was unfriendly and hostile. Can I deny him the apartment and continue to market the unit?

A. Yes, a landlord may deny any application for a vacant apartment based on an impression the applicants were unfriendly and hostile. The landlord is not required to have a reason to deny any application. Assuming the applicant was otherwise qualified to rent the premises, it is a good practice to document the reason for refusing the applicant with the facts giving rise to the landlord’s impression that the applicant was unfriendly and/or hostile during the meeting. 

The concern for the landlord is the applicant’s potential claim that the landlord’s decision to deny his or her application was for an improper reason, namely, discrimination prohibited by law. The Fair Housing Act protects people from discrimination when they are denied rental housing based on race, religion, family status, disability, sexual orientation, national origin, gender and/or source of income [42 U.S.C. 3604]. By documenting the facts at the time of denial, the landlord will be prepared in the event of such a future claim.

The landlord should be prepared to show the facts giving rise to the decision not to rent to the applicant and that such decision was based on the landlord’s impression that the applicant would not be a good tenant, rather than any alleged prohibited discriminatory practice. Because allegations of discrimination may arise long after the denial has been forgotten by the landlord, contemporaneous notes made at the time of denial are very useful should the landlord need to recall the facts supporting the denial of the application.

—Kevin Greenquist

Q.  There is a mural painted on one side of my building. I’d like to paint over it. Is this legal?

A. You may have heard the news story about a famous but illegal Banksy painting on a private London building being removed and sold at auction. Before you paint over the mural on your property, it might be worthwhile to research the artist, if known, and attempt to determine whether the work has any value.

If the mural has a “recognized stature” and was painted with the owner’s permission after December 1, 1990, it is probably protected by the Visual Artists Rights Act (VARA). If it was painted without permission or the artist expressly waived their rights under VARA, VARA probably does not apply, though the courts have not clearly ruled one way or another on this issue. VARA is a federal statute preventing, among other things, the destruction or mutilation of fine artworks of recognized stature. Violations of VARA can lead to civil damages, so to protect yourself if your mural qualifies, you can 1) obtain an express waiver from the artist, or 2) make a good faith attempt to notify the artist and give them 90 days to remove the work—though it is unclear how this second option applies when removal of an intact artwork is not feasible.

The California Art Preservation Act also provides for civil damages and injunctive relief for the destruction of original artwork of “recognized quality.” A Los Angeles case in which an artist’s mural was painted over settled for $1.1 million in 2008.

If the mural has significant historic and/or cultural properties, or is an integral part of a historically significant building, it could already be a designated architectural or aesthetic historical landmark. There are dozens of protected houses—mostly mansions—throughout San Francisco. If your property is on the list of San Francisco Landmarks, you are severely restricted from altering its appearance.

Even if your property is not a designated San Francisco Landmark or does not have recognized stature, there is a risk that painting over your mural could draw the ire of neighbors or even passersby. In addition to unwanted attention from the neighborhood, the general public, and the press, city agencies such as the Department of Public Health and Department of Building Inspection could be alerted. It is not unusual for concerned citizens to report façade work out of concern for lead and asbestos contamination. Once a city inspector visits to review the façade work, it is possible they will want to look around inside as well for other potential code violations.

One other potential issue is if the artist obtained permission from the owner and entered into a binding contract commissioning the mural. If there is an enforceable agreement between the artist and owner governing the artwork, you could be bound by that agreement and might expose yourself to liability for damages for painting over the subject of the agreement.

If you are uncertain about any of these issues, seek legal advice from a licensed attorney before taking action.

—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. Clifford Fried and David Semel are with Fried & Williams, LLP and can be reached at 415-421-0100. Kevin Greenquist is with Zanghi Torres Arshawsky, LLP and can be reached at 415-977-0444.