SF Apartment : January 2016

LEGAL Q&A

Bite The Bullet

by Various Authors

Q. A few days ago I went to check on the common area of my apartment building. A gun was out in plain sight. It turned out to be a BB gun. But can you please talk about the issue of tenants’ rights to own guns, and what a landlord can and can’t do about it?

A. In 2005, San Franciscans passed Proposition H, which outlawed gun ownership by private citizens in San Francisco—but the San Francisco Superior Court struck it down. In 2010, the United States Supreme Court held that the Second Amendment to the Constitution bestows an individual right to own firearms. Therefore, you need to accept the fact that your tenants can own guns. Of course, you could try writing into your leases that gun ownership is prohibited (and maybe it would fly, since you are not the government) but I doubt it. It would be like refusing to rent to someone who advocates union membership, thereby abridging the tenant’s free speech. Not a good idea, even though the First Amendment pertains only to governmental action. You could find yourself in litigation, or perhaps even taking on the NRA. And what about your liability to the tenant who is assaulted by an intruder and claims she would have been able to defend herself if you had not prohibited her from possessing a gun?

So, what to do? First, protect yourself against some ugly gun occurrence just as you protect yourself against any other potential liability: by carrying sufficient insurance. Then, take reasonable steps to protect your tenants and their guests from gun crime and accidents. The right to gun ownership is not unlimited.

California has laws prohibiting the possession of certain assault weapons, the carrying of loaded or concealed firearms, and the brandishing of guns. According to a San Francisco ordinance, someone possessing a handgun within a residence owned or controlled by that person must store the gun either in a locked container or disabled with an approved trigger lock. The US Supreme Court recently refused to overturn an appeals court ruling that upheld this ordinance. If your tenant is breaking any of these laws, contact the police.

In addition, tenant actions with a gun may create a nuisance, which includes anything injurious to health or which interferes with the comfortable enjoyment of property. Certainly, a gunshot wound would fall into that category. Any unsafe gun practice can be a nuisance. The San Francisco Rent Ordinance permits a landlord to evict a tenant for committing or engaging in conduct creating a substantial interference with the comfort, safety, or enjoyment of the landlord or tenants in the building, if the activities are severe, continuing, or recurring in nature.

Undoubtedly, leaving an unattended firearm in the common area of your building would constitute a nuisance, though arguably the lock box ordinance would not come into play since the tenant does not own or control the common area. And while a BB gun is not considered a firearm under California law, it can cause injury. Therefore, leaving an unattended BB gun also constitutes a nuisance. The issue would be whether it was left only once (therefore, not continuous or recurring), and whether a single incident could be considered severe enough to evict the offending tenant. I doubt it. Still, if you know who the offender is, give a serious written warning, followed by action to end the tenancy if the warning is not heeded.

—Saul M. Ferster

Q. I am wondering how to handle automatic electronic fund transfers for rent payments. Is there a way to ensure that the tenant named on the lease is indeed the one sending the automatic payment, so that the landlord is not accepting funds from non-tenants and thereby giving them tenancy rights? I am also wondering if there are any other issues that could arise from accepting electronic payments.

A. Years ago, when electronic funds payments and direct deposit were new, many in the rental housing industry fretted, concerned by the questions these practices raised. The current reality though is that in less than a decade no one will use checks anymore. Indeed, most apartment operators will already attest that now many tenants—especially younger ones—have abandoned the practice of writing checks and sending them via snail mail to the landlord. In today’s electronic age, we simply don’t pay bills in this manner, and tomorrow, checks will likely go the way of typewriters and landlines.

Thus, certainly the rent board and likely the superior court are not going to penalize owners who accept electronic funds transfers or other forms of direct deposit, unless the tenant has announced or otherwise made it clear that the money is coming from a subtenant. Therefore, the simple answer to your question is this: Don’t worry about it. Embrace the practice, as it will be the norm in a very short period of time.

Waiver of the right to reset rent under Costa-Hawkins arises when the landlord creates a direct relationship with a subtenant. For example, placing the subtenant on a lease, including the subtenant on correspondence and communication directed to the tenancy, accepting non-emergency repair requests from the subtenant or knowingly accepting rent from the subtenant may create problems down the road once the last original occupant no longer permanently resides in the apartment. Conversely, even if subtenants are giving the master tenant rent money, if the landlord is led to believe in good faith that the rent payment emanates just from the master tenant, there should be no issue when the time comes to impose an unlimited rent increase.

There is only one situation where you need to be vigilant regarding automatic transfers, and this is when the tenants are in breach of the rental agreement and a notice to cure or quit or a notice to quit has been served. Upon expiration of the notice period, if the tenant has not rectified the breach and/or vacated the apartment, the landlord must commence formal eviction proceedings in the superior court. The landlord will lose the case if the tenant can prove that rent was accepted after the notice period ended. As such, please remember to prevent the tenants’ ability to directly deposit or transfer funds into your account once you serve an eviction notice or otherwise commence legal action against the tenancy.

In addition, if your tenants are breaching the rental agreement (for instance, unlawfully subletting the unit), acceptance of rent with such knowledge may impede your ability to object to the breach. Similarly, if you are terminating the tenancy for a “no fault” reason such as a legitimate owner or relative move-in, you need to make sure that no rent is accepted after the period in the termination notice expires.

So, in sum, if you have the ability to stop the automatic rent processing if needed, and if you have no knowledge or evidence that the payments are in fact coming directly from a subtenant, utilizing this form of commerce—which will soon completely replace check writing—is just fine.

—Dave Wasserman

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Saul M. Ferster can be reached at Law Offices of Saul M. Ferster, 415-863-2678. David Wasserman is with Wasserman-Stern Law Offices and can be reached at 415-567-9600.