Legal Q&A

Loud and Clear

written by Various Authors

Q. A handful of occupants have moved out due to noise disturbances from a neighboring unit. Should I disclose this to
potential renters?

A. Yes, and in writing. When a landlord rents property to a tenant, there is always the implied promise that the property will be free of nuisances that might impact the tenant’s occupancy. This is known as the covenant of quiet enjoyment. If a condition at or around the premises is known to be causing a negative impact on the quiet enjoyment of its residents (i.e., a nuisance), the best practice is to disclose the nuisance in writing to all potential renters. However, whether a suspected nuisance amounts to a violation of the covenant of quiet enjoyment depends on several factors.

The most important factor is whether the nuisance originates from property owned by the landlord. If the landlord’s other tenants are causing a nuisance, and the landlord is not taking steps to stop the nuisance (e.g. eviction, mediation, etc.), then a tenant who moves into a unit and experiences the nuisance could make a claim against the landlord for violating the covenant of quiet enjoyment. This is because landlords have a duty to abate nuisances originating from their property, and the failure to do so means that the landlord is responsible, at least in part, for the nuisance.

If the nuisance originates from a neighboring property, then the landlord may not be liable for the nuisance. For instance, if a neighboring house plays its music loudly, the landlord could not evict the occupants to stop the nuisance, only sue in court for damages or an injunction, or call the police for the disturbance of the peace. But unlike in the previous case, the tenants would have the same remedies available – they could also call the police or sue their neighbors. Because the tenants have the same legal remedies as the landlord against the neighbors, it is unlikely that the tenants will be able to hold their landlord liable for something they could have done themselves.

If the rental unit was next to noisy rail tracks, the noise of the trains is simply a condition of the rental property. Certainly, the landlord should take reasonable steps to dampen the sound, but nothing will change the fact that the rental unit is next to rail tracks. A certain amount of noise and vibration is inevitable in that situation, and the landlord would not be liable for it, especially if the tenant was aware of it before renting the property.

So why should a landlord disclose a nuisance that the landlord is not responsible for? For the practical reason to avoid the logistics and potential conflict surrounding repeated turnover in the affected unit. If a unit is known to be in a noisy area, a sensitive tenant should be warned away from renting it so that a less sensitive tenant can move in instead. And if the nuisance is in one of the landlord’s other rental units, it helps avoid the accusation that the landlord was acting in bad faith by renting a unit when the landlord already knew they could not deliver on the covenant of quiet enjoyment.

Many landlords will not rent a unit near a noisy neighbor even with a disclosure because they do not want to subject a new tenant to a known nuisance. If the nuisance is coming from another property, the landlord may indeed have an action for damages for the reduced value of their own property caused by that nuisance (e.g. lost rental value). Those landlords should be aware that unless they attempt to rent the property they will have difficulty quantifying their damages, either by showing how long the unit went unoccupied, or by how much lower they had to set the rent to fill it.

Even if a landlord can rent a unit with a nuisance neighbor nearby, landlords should not rest on their laurels. Follow-through with a plan to abate the nuisance, either by evicting the source of the nuisance, or pressuring the neighbor. Show the tenant that you are fighting for them, avoid the claim that the landlord is responsible for the breach of quiet enjoyment, and put the blame where it belongs: on the nuisance itself.

—Matthew Quiring

Q. A resident in one unit of my duplex installed security cameras without letting me know. The camera happens to record another tenant’s front door. Is this okay?

A. You should review your lease to see if there are any provisions requiring the permission of the landlord before a security camera can be installed. Some leases require the tenant to first obtain written permission. Typically, landlords demand this so the landlord can monitor the installation process of the security cameras, reduce any damage to the building, and to protect the privacy and quiet enjoyment of other tenants.

If your lease requires the tenant to first obtain written permission, your tenant may be in breach of the lease. You should write a letter to your tenant demanding your tenant remove the security camera and warn your tenant that the failure to do so could result in a formal eviction notice. If you decide to allow your tenant to keep the cameras, remind your tenant of this term of the lease and make it clear that your tenant is permitted to keep the cameras just as long as it does not interfere with the privacy of other tenants. Additionally, you should request your tenant reimburse you for any damage caused to the building.

If your lease is silent on this, and if your tenant has a legitimate reason to why cameras are necessary, a tenant may be permitted to install security cameras. The cameras should record exterior parts or general parts of a building, not damage the building, and not disturb another tenant’s quiet enjoyment and privacy.

One of the most common reasons why a tenant wants to install a security camera is due to safety concerns. To balance one tenant’s legitimate safety concerns versus another tenant’s reasonable expectation of privacy, the cameras should be angled in a way that would not interfere with the quiet enjoyment of another tenant. Thus, cameras should not be placed in an area where someone would have a reasonable expectation of privacy. It is clear that bedrooms and bathrooms are off-limits. In contrast, there is no expectation of privacy on the street or in a public space.

Security cameras usually capture more than just one person’s property. The peripheral vision of a camera is usually at a wide angle. If the camera captures parts of another resident’s property like the front lawn, the tenant with the security camera is probably okay and not invading anyone’s privacy. However, if the camera is capturing the front door, then it may depend on the positioning of the camera. If the camera is pointed directly at the neighbor’s front door, then the resident without the camera may have a valid concern for invasion of their privacy. Cameras should not be used to spy on a neighbor’s routine. If you believe this could be a reason for the installation of the cameras, you should write a letter to your tenant and request your tenant remove the cameras or reposition them. Each case is different and revolves around the specific facts. A tenant’s right to privacy is very protected. A landlord should be wary of infringing on such rights and consult with an attorney before taking any action.

—Angelica Sandoval

Q. If the last original occupant has passed away, are the remaining occupants obligated to inform
the owner?

A. First, condolences on the loss of your tenant. This is an emotional time for all involved. Unfortunately, it requires brisk and definitive action on your part, to avoid a waiver of your rights.

For some context, an “original occupant” is generally an occupant who took possession of the apartment at the commencement of the tenancy. But it can also include a subsequent occupant who you’ve treated as a co-tenant since then (usually by accepting rent from them directly). The important difference between an original and a subsequent occupant is that, once the “last original occupant” vacates, you can increase the rent to market rate, even if subsequent occupants remain. Many landlord-tenant conflicts arise over whether any remaining occupant is “subsequent” or “original.”

You’re specifically asking about the obligations of subsequent occupants to notify you if their master tenant has passed away. Subsequent occupants don’t necessarily have an affirmative obligation to tell you, and it’s very common to conceal the absence of an “original occupant” to maintain lower rent. The tone of your question suggests you suspect he has passed, but believe that the subtenants are actively keeping this fact a secret to maintain below-market rent. So, the most immediate question is “who’s been paying the rent this whole time?”

As an SFAA member, you know not to accept rent other than from your original occupants, so I’d assume the subtenants are trying to pay the rent without you noticing it’s from them. Cash would be the easiest way to obscure the payer. The law doesn’t specifically authorize a landlord to refuse payments in cash, and the Rent Ordinance even considers it “tenant harassment” to refuse to accept a lawful payment of rent. However, if you believe the original occupant has passed—perhaps because of a sudden change from personal check to cash—you would be justified in refusing the payment and inquiring further.

If you’re somehow still receiving payment from the original occupant’s checking account, despite compelling evidence the original occupant has passed, this would suggest a form of fraud. But fraud supports a lawsuit for damages; it wouldn’t necessarily achieve either (1) a market rate rent increase, or (2) possession of the apartment. Instead, these goals will probably turn on your involvement, if any, in approving the subtenants.

If you do know who the subtenants are (because the original occupant asked your permission to add them), you should be able to increase the rent. If the subsequent occupants are unapproved and unknown (which is more likely if they’re keeping the source of the payment secret), you may have a basis for commencing an eviction and recovering possession.

Either way, these are difficult cases, mixing emotion and law. And if the subsequent occupant is a surviving relative/partner, they may (incorrectly) assume they still benefit from rent control, complicating the transition. Effective results combine prompt and decisive action with compassion.

(For more on this topic, turn to page 34)

—Justin A. Goodman

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. Matthew P. Quiring and Angelica A. Sandoval are with Fried & Williams LLP and can be reached at 415-421-0100.