SF Apartment : December 2017

LEGAL Q&A

Bedbug Burden

Q.  A unit of mine had a bedbug infestation. Per the pest control operator’s (PCO) instruction, my tenant dry cleaned her dry-clean-only clothing and now wants a reimbursement. Am I responsible for the bill? And am I required to let all prospective tenants know about this now-remedied bedbug infestation in the future?

A. In most instances, you are not responsible for this cost. Dry cleaning costs should be the tenant’s responsibility as it is in connection with damage to the tenant’s personal property. Absent a showing that the landlord or the landlord’s agent was negligent (for example, the landlord either caused the infestation to occur or failed to promptly address the infestation thereby resulting in the spread of bedbugs), damage to a tenant’s property is the tenant’s responsibility. While the landlord is under an obligation to pay for and implement the correction of the bedbug infestation, the tenant bears the costs associated with cleaning and replacing personal effects. Indeed, the same analysis would apply if the tenant’s items were damaged by mice or some other pest; absent a showing that the landlord caused or failed to timely address the pest infestation, the same analysis applies.

Suggest to the tenant that she look into whether her renter’s insurance policy covers such expense. Many leases, such as the SFAA rental agreement, require that tenants maintain insurance policies for such events. If you were to decide to reimburse her as a courtesy, you would unfortunately set a precedent not only with this tenant but with other occupants in the building to demand reimbursements for damages to personal property and effects in connection with a flood, leak or other incident or event. A landlord should not have to stand in as a proxy for an insurer when habitability issues result in losses. The obligations of a landlord are extensive but insuring a tenant’s property against damages is not one of them.

Incidentally, both landlords and tenants share responsibility to ensure the unit is free from pest infestation. The landlord fulfills this obligation by promptly engaging a licensed PCO to treat and manage the unit for pests. The tenant, likewise, must promptly inform management when there is a pest problem.

If a prospective tenant asks about bedbugs, the landlord must disclose in writing the unit’s bedbug infestation and abatement history, or lack thereof, for the previous two years. Landlords must provide a written bedbug disclosure (in at least 10-point type) to any prospective tenant prior to creating a new tenancy that contains general information about bedbug identification, behavior and biology, the importance of cooperation for prevention and treatment, and the importance of and for prompt written reporting of suspected infestations to the landlord.

The new laws also prohibit a landlord from showing, renting or leasing to a prospective tenant any vacant residential unit that the landlord believes has a current bedbug infestation. In addition, landlords must notify the tenants of any units inspected/treated by a PCO for bedbugs. Such notification must be in writing and given to the unit’s tenants within two business days of receipt of the PCO’s findings. If a bedbug infestation is confirmed in a building’s common areas, all tenants of the building must be provided notice of the PCO’s findings within two business days of receipt of the PCO’s findings. The new laws also impose obligations on residential tenants. Tenants are required to provide entry upon service of a proper twenty-four hour written notice of entry into any unit selected by the PCO in facilitating the detection and treatment of an infestation and to conduct follow-up inspections of surrounding units until a bedbug infestation is eliminated. Tenants are further required to cooperate with the landlord and PCO, including providing requested information to the PCO that is necessary to facilitate the detection and treatment of begbugs.

—Dave Wasserman & Elizabeth Kershaw

Q.  A few months ago, I sent a “change in terms of tenancy” to a Section 8 tenant enforcing a new no-smoking policy. He is still smoking cigarettes in his unit and I’ve received multiple complaints from tenants in neighboring units. Is there anything I can do?

A. Under state law, a landlord can unilaterally change the terms of a month-to-month tenancy with a written 30-day notice. So under normal circumstances, you could give such a notice to add a no-smoking policy. Unfortunately, tenancies in San Francisco aren’t normal. Most tenancies are subject to the San Francisco Rent Ordinance. Under the Rent Ordinance Rules and Regulations, a landlord generally cannot unilaterally change the terms of tenancy. More specifically, the Rules and Regulations provide that a tenant cannot be evicted for violating a term of tenancy that was not included in the initial rental agreement unless (1) the change is required by law or (2) the change is accepted in writing by the tenant after receipt of written notice that the tenant need not accept such new term as part of the rental agreement. Although there are secondhand smoke laws, the laws do not require a landlord to prohibit smoking within a rental unit. So unless your tenant accepts your no-smoking policy in writing, any change you made to the tenancy is unenforceable.

That doesn’t mean that you are without recourse when the secondhand smoke is bothering other tenants in the building. If the odor and smoke from a tenant smoking inside a rental unit are wafting into common areas and neighboring units, then this may be considered a nuisance or interference with the neighboring tenant’s right to quiet enjoyment. The Rent Ordinance provides that a landlord may terminate a tenancy where “[t]he tenant is committing or permitting to exist a nuisance in . . . the rental unit, or is creating a substantial interference with comfort, safety, enjoyment, of the landlord or other tenants in the building . . . ”

Nuisance evictions in San Francisco can be difficult. So you should notify the offending tenant in writing about the written complaints you are receiving and make every reasonable effort to informally address the situation. The Housing Authority should also be apprised of the situation and your efforts. If you are unable to rectify the situation, then you may have grounds to terminate the tenancy for nuisance.

—Steven Williams

Q.  A tenant would like to pay rent by direct transfer to my checking account. A previous tenant transferred less than the agreed upon amount, and the mistake was difficult to correct. Because of this, I am wary of electronic rent payments. Do you have advice?

A. Your question points out some of the pros and cons of the various forms of payment available to landlords and tenants. Unfortunately, no single method is ideal in all situations, so consider your priorities when setting up your payment procedures.

Cash payment is generally used for unsophisticated landlords and master tenants who manage their tenancies informally, and carries the disadvantage of lacking a convenient paper trail. Any rent received in cash for any reason should be documented with a receipt for the benefit of both sides. However, some landlords may require cash payment in the event of receiving bad checks from the tenant. This is legal, but only for three months after the last bad check. However, cash payments pursuant to a three-day notice should not be rejected, unless the amount itself is insufficient.

Payment by check is the most common and typical payment method, because it is generally reliable and easy to track and document. However, it can pose certain logistical problems, such as in the case of NSF checks (as mentioned above) or delivery issues if they are transmitted by mail. However, certified checks, cashier’s checks, or money orders are usually superior options than cash payments, if the tenant has a history of passing bad checks, because they guarantee the value of the check. Electronic checks, such as transfers through PayPal, can be fast and secure, but require both sides to be technically savvy enough to employ them comfortably, and may be out of reach for low-income tenants.

Direct deposit or recurring wire transfer conveniently eliminates most of the obstacles for prompt delivery of payment, so it is an easier way for a landlord to track which tenants are or are not paying on-time reliably. However, as mentioned in the question, it puts the payment in the hands of a third party, which gives the landlord less control, such as in the case of a bank error. Low-income tenants may also not have a bank account at all.

Another common issue is when a landlord is terminating a tenancy not because of nonpayment of rent, and the rent continues to be paid automatically even after the termination date. This can be damaging to the landlord’s termination claim, because accepting rent after issuing a termination notice generally voids the notice. It is possible to avoid this if the rent is refunded to the tenant as quickly as possible, and if the landlord can show that the receipt of rent was inadvertent and unintentional. However, it is better to turn off direct deposit from tenants once their tenancies end, which requires additional coordination with the bank.

Carefully consider the risks and benefits of each method of payment, and be prepared to offer and accept at least two forms of payment from your tenants. A landlord who is unreasonably narrow in how they handle or accept rent payment may be viewed as operating in bad faith when a tenant is otherwise ready, willing, and able to pay. But if you make it too easy, you may end up with less control when it is needed most.

—Matthew P. Quiring

Q.  When it comes to Ellis Act and Owner Move-In Evictions, is there any difference in the legislation for single-family homes specifically?

A. There are some differences. But they are not substantial. First let’s take a look at the Ellis Act, which requires the owner to remove all units in the building from rent or lease. In a building with several units, the owner is looking at eviction papers for several units. But if the building is a single-family home, there is less paperwork required.

Also with a multi-unit building, there are more tenants to track and serve and more relocation payments to deal with when you do an Ellis Act eviction. A single-family home means fewer tenants to evict, less paperwork and lower eviction costs.

Sometimes, the only way to recover possession of a single-family home is by invoking the Ellis Act. A landlord needs just cause to evict a tenant from a single-family home. Where the landlord lacks just cause, the Ellis Act is a viable eviction option. The economic decision to go out of business with a single-family home is easier than closing down several units in a building.

Now, let’s look at an Owner Move-In (OMI) eviction. There are provisions in the OMI law that prohibit evictions where there is a comparable unit in the building that is vacant and available. With a single-family home, there can never be another vacant unit in the building to worry about.

Another issue to consider is how much may the landlord charge for the unit upon re-rental after the tenant vacates? Most single-family homes are exempt from rent control under Costa-Hawkins. If the landlord evicts a tenant from a single-family home, using either the Ellis Act or OMI, the landlord may charge any amount upon re-rental. This isn’t so with multi-unit buildings, where the landlord is required to charge the old rent upon re-rental for some period of time.

—Clifford Fried

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, Matthew P. Quiring, and Clifford Fried are with Fried & Williams, LLP and can be reached at 415-421-0100. Elizabeth Kershaw is the Director of Legal Affairs at Parkmerced and can be reached at 415-405-4600.