Black Outs &
written by Various Authors
What are a landlord’s responsibilities during a planned PG&E power blackout?
Q. In the case of PG&E blackouts during extreme weather conditions, am I responsible for putting my tenants up in an out-of-town hotel?
A. The short answer is no, you are not required to pay for a hotel for your tenants during PG&E rolling blackouts. Your sensitivity to you tenants’ well being is laudable, and while there are high burdens for residential landlords these days, you’re not responsible for the power grid. There are less costly/onerous was to keep your tenants safe and secure.
To understand your obligations, we have to consider two concepts: (1) the implied warranty of habitability, and (2) the covenant of quiet enjoyment. First, habitability: at common law, landlords had few duties to tenants other than to provide possession of the land. In 1974, the California Supreme Court issued the landmark opinion, Green v. Superior Court, which departed from the common law to find that residential leases contained an implied warranty of habitability for which landlords are responsible. The Court reasoned that, while the “land itself” was the most important part of the lease traditionally, this relationship had been “entirely transformed in the modern urban landlord-tenant relationship.” Tenants are no longer contracting for an interest in land but for a “place to live.” This implicates the notion of “habitability,” which includes heat, water, plumbing, and refuse (and, yes, utility services as well). The contemporary tenant is neither equipped to evaluate these issues in advance of the tenancy nor qualified to repair them during the tenancy. The implied covenant was born.
Quiet enjoyment is a related concept but considers an interference so great that the lessee can no longer use the leased premises. The covenant of quiet enjoyment is breached when the tenant is actually or constructively evicted. And while the loss of utilities seems significant, in order to constitute constructive eviction, the disruption must be caused by the landlord and must be sufficient for the tenant to vacate within a reasonable time. That probably isn’t the case here.
Recent headlines are filled with confused citizens rushing supermarkets and hoarding supplies over the recent strategic blackouts, but this is obviously not the result of anything you did or planned for. Moreover, under Green’s reasoning, the idea of “rolling blackout” zones is not foreign to the urban residential landscape. Utility companies have been using this method to preserve the power grid for decades.
That said, while you don’t have to relocate your tenants, you may wish to set them up for success and enhance fire safety for your building. You might want to provide certain emergency provisions: nightlights will avoid the use of candles that could ignite surrounding material. Portable phone chargers will keep your tenants in touch with family and care providers. Focusing on what you can do, rather than what you must do, will keep your tenants and your building safe.
—Justin A. Goodman
Q. In my three-unit building, one tenant has filled the shared courtyard with her belongings. It is packed so full, there is no clear path from the building’s backdoor to the courtyard exit, which leads to the street. Is this a fire hazard? Can I have her move her things, despite the lease agreement stating the courtyard is for tenant use?
A. Tenant storage of personal property outside of a rental unit is a common problem, which is why it is important to ensure that all of your leases contain a provision negating a tenant’s right to store possessions anywhere on the property other than in the rental unit and any permitted on-site storage, such as in a garage or designated area. Irrespective of the lease’s terms, and as is true in your case, while a portion of the property may be reserved for tenants’ use, that does not translate into the right to transform such space into an outdoor storage facility. Provided his lease does not permit the offending tenant (who I will refer to as “Allen”) to store items in the courtyard, Allen is in violation of his lease. Additionally, provided the other tenants (who I will call, respectively, “Bill” and “Charlie”) have the right to use the courtyard, they are being deprived of the use of such space. As such, you may be in violation of Bill’s and Charlie’s leases by failing to provide them the use of the courtyard.
Allen’s storage of possessions in the courtyard, which blocks any paths of ingress to or egress from the property, is a violation of San Francisco Fire Codes and you, as the landlord, have an obligation to maintain the property in a manner that is safe for all residents and in compliance with all laws, statutes, and regulations. For that reason, you must immediately clear the courtyard of Allen’s possessions. By failing to do so, you run the risk that the City Fire Department, Bill, or Charlie will take action against you for permitting a dangerous condition to exist on the property.
In addition to creating a fire hazard, the existence of Allen’s personal property in the courtyard may raise other concerns, such as the attraction of pests, which is a nuisance as defined by California law and may subject you to liability from Bill and Charlie or the property’s neighbors.
Despite the possibility of potential claims against you by the city and/or your tenants, do not move or even touch Allen’s possessions. Doing so opens you up to possible claims for stealing, damaging, or otherwise harming Allen’s property. The removal of Allen’s possessions from the courtyard, unless otherwise agreed to by Allen, must be done by Allen, or by you but only pursuant to a Court order or other authority.
As a result of Allen’s actions, the property is currently in violation of City and County Fire Codes. Actions to remedy this unsafe condition should be taken immediately.
—Susan K. Breed
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. Susan Breed is with The Offices of Denise A. Leadbetter and can be reached at 415-572-5015.