Legal Q&A

It’s a Dirty Job

written by Various Authors

Under state law, tenants must maintain safe and sanitary premises.

Q. A six-year tenant complained that the carpet is dirty and requested that I replace it. I installed new carpeting at the start of her tenancy, and there are no holes, snags or tripping hazards. What is my obligation?

A. The answer to this question depends in large part on the provisions in the lease agreement governing the tenant’s responsibility to maintain a sanitary and safe premises, and the overall condition of the carpet.

Under California law, tenants have a duty to avoid waste by maintaining a safe and sanitary premises and to dispose of garbage. A tenant’s duty to avoid waste is held to the same standard of any present occupant with an interest in the property. The tenant cannot destroy the property and cannot consciously allow the premises to decay or become destroyed. Tenants also have a duty to make ordinary repairs. However, tenants do not have a duty to prevent or repair ordinary wear and tear that naturally occurs over the course of the tenancy.

Assuming the lease agreement does not have language that significantly limits or broadens the tenant’s duty to avoid waste or make ordinary repairs, the six-year tenant referenced in the above question at the very least has a duty to avoid waste by cleaning the carpet. Since the carpet was new at the beginning of the tenancy, the tenant is expected by law to regularly sweep, vacuum, and clean the carpet so as to maintain the carpet and avoid waste. If the tenant has accumulated dirt on the carpet over the last six years, it is the tenant’s responsibility, not the landlord’s, to clean the dirt from the carpet.

Since there are no holes, snags or tripping hazards, it appears that the landlord has no duty to replace the carpet.  If there is nothing beyond accumulated dirt on the carpet, the landlord can encourage the tenant to clean the carpet. If the lease agreement has express conditions on the tenant’s duty to maintain a clean and sanitary premises, the landlord should reference those provisions in the lease agreement as well.

—Jonathan Madison

Q. A tenant in my building passed away, in their unit, from natural causes. Must I disclose this to potential tenants?

A. California Civil Code § 1710.2 requires a landlord to voluntarily disclose whether there has been a death at the rental property to any potential renters that occurred within three years from the date of the tenant’s death. This is irrespective if the death occurred naturally, by homicide or suicide. The only exception is if the former tenant died of AIDS or any HIV-related illness. A tenant who dies in a unit due to AIDS or any HIV-related illness need not be disclosed. It is unclear whether the manner of death must be disclosed. However, as a precaution, it is recommended that the property owner disclose the manner of death. This can limit a property owner’s liability in the event a tenant files a lawsuit for misrepresentation, fraud, and unfair business practices.

A property owner should make a disclosure of death in a rental unit in writing prior to the tenant moving in and mention it in the lease.

After three years, the property owner is not obligated to volunteer this information; however, if asked, the property owner should give true and accurate information to prospective new tenants.

—Angelica Sandoval

Q. A tenant who has lived in my building for 20+ years has always been allowed to park in an otherwise unused parking space, free of charge. Can I start charging her for the space?

A. Well, to begin with, if the tenant has “always been allowed to park” in the parking space, this is only an “otherwise unused parking space” in the same sense that the tenant’s apartment is an “otherwise unused apartment” (but for your tenant living there).

Your question is really asking what your rights are to a tenant-occupied parking space in general, and this is an increasingly popular question for many reasons: If the space is in a “soft story,” landlords need unfettered access for retrofit work. If the space is unused (or can be acquired), landlords may want to construct an accessory dwelling unit in the available square footage to add valuable housing. And if the policy of rent control is to stabilize housing prices, and California prohibits commercial rent control, a landlord should be able to increase the rent for that space (especially when a single spot might now lease for hundreds of dollars per month).

San Francisco landlords don’t just lease “apartments”—they lease “rental units,” which is a term of art under the Rent Ordinance. A “rental unit” is the dwelling unit “and all housing services, privileges, furnishings and facilities supplied in connection with the use or occupancy thereof, including garage and parking facilities.” And, just like a landlord can’t suddenly remove a tenant’s use of a bedroom or a closet, a landlord cannot “sever” a “housing service” without the same just cause required to terminate the tenancy itself.

The reason for this is straightforward: landlords might otherwise whittle away at the tenant’s essential facilities, to the point that the tenant vacates, leaving a market rate unit behind. (Your tenant’s tenancy is nearly old enough to drink, so chances are you could charge more rent to a new tenant in 2019.)

Now, if a landlord allows a tenant to lease a space after the commencement of a tenancy, the landlord can set their own price. And if a landlord leases parking to a tenant who doesn’t live in the building, this is a commercial lease that isn’t covered by the rent ordinance. But it sounds like your tenant leased an apartment and a parking space at the same time, which means your tenant’s rent includes the “housing service” of that parking space. You can’t charge any more for the parking itself than your annual allowable increase for the rental unit as a whole.

—Justin A. Goodman

Q. Despite agreeing to it in our lease, a tenant won’t purchase renter’s insurance. Is this legal?

A. Yes, it is most likely permissible for a tenant to refuse to comply with a lease clause requiring the tenant to purchase renter’s insurance—but the effect on owners is not as alarming as you might think. There has long been an assumption that, since the tenant signed a lease that includes a provision requiring them to obtain insurance for their personal property in the unit, that the landlord can enforce that provision. Many form leases, including those published by California organizations, contain a clause requiring the tenant to purchase renter’s insurance. A brief online search for whether California owners can require tenants to purchase insurance results in numerous web pages that unequivocally state owners can and should do so. But the people posted those web pages must be unaware of a 2016 appellate decision in which a Los Angeles court decided an owner could not evict a tenant for failing to obtain renter’s insurance.

In Boston LLC v. Juan Juarez, published February 25, 2016, the Court of Appeals for the Second District of California held that a tenant’s failure to obtain renter’s insurance in violation of a lease clause is not a material breach permitting the landlord to terminate the tenancy. The Court reasoned that the requirement to purchase renter’s insurance protected the tenant’s interests, not the owner’s, so the failure to obtain renter’s insurance did not harm the owner and was not a material breach of the lease permitting termination of the tenancy.

It remains to be seen, however, whether this decision will be applied in all situations. The facts of the Boston LLC did not favor the owner: Mr. Juarez lived in the apartment for over 15 years before Boston LLC served him with a three-day notice to comply with the insurance clause. The notice was served on Friday, February 14, just before the three-day weekend for Presidents’ Day, February 17, a legal holiday, and Mr. Juarez obtained the required insurance on February 21. In addition, Mr. Juarez did not make any claim against Boston LLC that would have been covered by renter’s insurance had Mr. Juarez procured it. These facts undoubtedly played a role in the Court of Appeals’ decision, although the holding itself does not limit the application of the decision to similar fact situations.

The Boston LLC Court of Appeal also noted that the Los Angeles Rent Stabilization Ordinance is meant to protect tenants from excessive rent increases and prohibits owners from terminating tenancies without an approved basis (just like the San Francisco Residential Rent Stabilization and Arbitration Ordinance).  Therefore, a breach that had no negative effect on the owner was not a valid ground for forfeiting the lease.

This does not mean your lease should be silent regarding renter’s insurance. Some leases state the tenant is advised to obtain renter’s insurance and, if the tenant does not do so, the tenant waives the right to seek damages against the owner if the tenant’s personal property is damaged or destroyed. Such a clause protects the owner in the absence of renter’s insurance, and is more likely to be enforced than one resulting in forfeiture.

—David Semel

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Justin A. Goodman is with Zacks, Freedman & Patterson, P.C. and can be reached at 415-956-8100. Jonathan Madison, Angelica Sandoval and David Semel are with Fried & Williams LLP and can be reached at 510-625-0100.