Editors note: It’s hard to be a renter in San Francisco these days. Tenant lawyer Dave Crow is hear every week to answer your questions. Email him at askdave@48hills.org
Can a landlord, out of the blue, demand the removal of a Direct-TV satellite dish?
Facts about the rental:
1. Single Family Unit. Tenants have rented downstairs since 1996.
2. Landlord filed an OMI in 2015 on the upstairs tenant but lives in Canada.
3. Direct TV was installed in the back deck in January 2010. Landlord made “improvements” to the back deck prior to renting upstairs to the daughter of downstairs tenant in 2015.
4. Nothing in the lease prohibiting installation of dish.
5. Landlord verbally abusive over the phone to tenants and Direct-TV representatives when making repairs.
6. Second wife moved in upstairs before Christmas of 2017.
7. Landlord did not return security deposit of upstairs tenant claiming repairs needed after moving in for a short period of time. Gone back to Canada before Christmas of 2015.
8. All utilities are under landlord’s name except for Direct-TV. Landlord doesn’t have cable or landline.
I’m going to try to unpack this as best as I can, but this question is illustrative of many inquiries we receive by email—not enough information about your tenancy and, interesting, but irrelevant to your question, information about the former tenants.
If you’re asking me if your landlord’s a douche bag, I’d say yes, given the facts as you have presented them, even if he is Canadian. He thinks he’s the end-all, be-all lord of the manner. It also looks like he wrongfully evicted the tenants upstairs and, adding insult to injury, refused to refund their security deposit. You should contact the former tenants soon to let them know that the landlord never moved in because there may be a statute of limitations problem to sue for wrongful eviction, depending upon the notice and what they knew when they moved out.
You call the unit a “single family unit” but because you mention an upstairs and a downstairs, I’ll assume that it’s a two-unit building. I’m also going to assume that you live in San Francisco and that the building was built before 1979, and therefore rent-controlled.
Finally, the fact that the landlord pays all of the utilities may indicate that your unit is illegal, which could be relevant to your situation if the landlord is trying to force you out to avoid complying with planning code regulations that may require him to legalize your unit. I owe my readers an in-depth article about the new requirements, so I won’t open that can of worms here.
But the most important fact in your inquiry is not one I’d expect you to provide: Do you have “exclusive use” of the deck?
Your landlord cannot make you remove the satellite dish if you have exclusive possession or use of the deck.
Federal Communications Commission Order 98-273 prohibits landlords from restricting a renter’s access to antennas or dishes as long as the installation meets certain criteria. Among the specifications outlined by the FCC are that direct-to-home satellite dishes must be less than 40 inches in diameter. The law states that landlords have the right to oversee the installation and to impose reasonable conditions when tenants seek to install satellite dishes.
The FCC ruled that tenants and condominium dwellers must have exclusive useof the area in which they wish to install a satellite dish or other antennae without the landlord’s permission.
How do you know you have exclusive use of the deck?First, check your lease. If the lease has a term that provides exclusive use of the deck as part of your tenancy then the landlord cannot require you to remove the satellite dish.
The lease need not specify your exclusive use if the deck is a balcony that can only be entered from your apartment.
If it is crystal clear that nobody else could use the deck except you and your family, then you may be okay.
I see this issue when long-term tenants claim they have exclusive use of a backyard. They have landscaped the yard and turned it into a veritable Garden of Eden. They plant enough kale every year to feed the entire neighborhood. Their lease, however, is silent about their exclusive right to use the garden.
Then new tenants move into the building and they want to use the garden too. The new tenants want to sit on the benches the old tenants built and listen to the birds and smoke Pall Malls in the sun all day.
The old-timers probably can’t do much about it because it would be difficult for them to prove that the landlord meant to give them exclusive use of the backyard.
Can the landlord evict you for breaching the lease?
You state that the lease does not prohibit the installation of the disk, but that does not end the inquiry. Many form leases contain a prohibition against alterations without the landlord’s written consent. Here’s a more or less standard clause:
MAINTENANCE and ALTERATIONS: RESIDENT shall not paint, wallpaper, alter or redecorate, change or install locks, install external antennas, satellite dishes or other equipment, screws, fastening devices, excessively large nails, or adhesive materials, place signs, displays, or other exhibits, on or in any portion of the premises without the written consent of OWNER, except as may be permitted by law. RESIDENT may not install fixtures or devices without prior, written consent from OWNER,and subject to OWNER’S reasonable installation and maintenance guidelines to be provided upon request for consent.
Assuming you do not have exclusive use of the deck, if you never sought or received written permission to install the satellite dish, the landlord can argue that he has the right to require that you get rid of it. That’s why it’s important for tenants to read their leases carefully. If your lease requires the landlord’s written permission to make an alteration, you must get written permission from the landlord. You can’t rely on his verbal acceptance or his implied knowledge, because he’ll lie about it later. As I’ve said before: More lies are told in court, under oath, than any other place except church.
If you don’t have a provision in your lease governing alterations, and the dish has been installed professionally, you may be okay. At least the landlord cannot evict for breaching your lease. You may be able to make an agreement with the landlord to to move the satellite dish from the deck to an area within your exclusive use, like a window sill in the apartment.
Did the landlord waive his right to make you remove the satellite dish?
Waiver is legally defined as knowingly relinquishing or abandoning a known right, claim, or privilege. Without an agreement it’s very difficult to prove that the landlord intended to allow you to install the satellite dish.
Rent Ordinance § 37.2(g) provides the definition of housing services:
“Services provided by the landlord connected with the use or occupancy of a rental unit including, but not limited to: quiet enjoyment of the premises, without harassment by the landlord as provided in Section 37.10B; repairs; replacement; maintenance; painting; light; heat; water; elevator service; laundry facilities and privileges; janitor service; refuse removal; furnishings; telephone; parking; rights permitted the tenant by agreement…and any other benefits, privileges or facilities.”
Usually the landlord provides services at the start of the lease. If the services are provided by a later agreement, they become included in the lease. Once again, unless you can prove that he agreed (intended) to let you install the satellite dish, either by actual written agreement or perhaps a string of emails or texts, or witnesses to his agreement, it will be hard to prove that the landlord intentionally waived his right to make you take it down.
Is the landlord estopped by his conduct from making you remove the satellite dish?
Estoppel is a legal concept that prevents a party from asserting a fact or claim inconsistent with a position that the party previously took either by conduct or words, especially where that representation has been relied upon or acted upon by others.
You may have a defense to an unlawful detainer (eviction) action because the satellite dish has been installed on the deck for eight years and the landlord has known about it for at least three years and didn’t say anything.
My advice:
If you have exclusive use of the deck, tell the landlord that federal law will prevent him from making you remove the satellite dish. Include a copy of this interpretation of Federal Communications Commission Order 98-273 in your well-written letter demanding that the landlord immediately cease his threat to make you remove the satellite dish.
If you do not have exclusive use of the deck or it would be difficult to prove that you have exclusive use, it would be prudent to remove the dish and inform the landlord in writing that you will have it installed professionally in area that is within your exclusive use.
If you voluntarily remove the satellite dish, given the facts you stated, I don’t think you would have much of a case for a reduction of rent at the Rent Board based upon a substantial decrease in housing services because the landlord did not provide the service in the first place. “Landlords may defend a decrease in services petition by proving that the item was not a housing service provided, promised or reasonably expected at the commencement of the tenancy.”
If the landlord threatens to evict you for breach of the lease (Rent Ordinance § 37.9(2)), or nuisance (Rent Ordinance § 37.9(3), I would also advise you to remove the satellite dish and move it to an area within your exclusive use. Why? Because you don’t want to be defendant in an unlawful detainer (eviction) lawsuit, even if the landlord’s claims are bullshit.
Remember your rights don’t mean squat unless you have the means to assert them. More and more in this country rights are for the rich.
Evictions are very expensive to defend and landlords know this. Landlords bet that they can outspend a tenant in legal fees and they’re usually right, so it doesn’t matter what lies they tell or what asinine legal theories they assert. It would be worth it to your landlord to spend $100,000.00 to evict you. If you have lived in rent-controlled apartment since 1996 he will likely increase the value of his building by a million bucks if he can get you out!
That’s why all San Francisco tenants should not only vote for but work hard to pass Measure F that would provide for legal representation for all San Francisco tenants who are faced with legal proceedings to evict them from their residence.
How to Help Dave Crow Help You
Dear Readers:
Every once and awhile I will have to guess at a detail or two when I attempt to answer your questions. For example, I will often assume that a building was built before 1979, given the context of a question. When I make that assumption, it’s highly likely that I will assume that you live in a rent-controlled unit and answer your question using the standard of the San Francisco Rent Ordinance. That could be a problem for two reasons. If your building was built after 1979, it is not covered by the Rent Ordinance. Worse, what if you don’t live in San Francisco.
So, I thought it might be a good idea to give you a short list of details to consider and/or include when you write me.
When was your building constructed?
If you don’t know, you can find out by using the SF Assessor-Recorder’s website to find out. If that site is being funky (not unusual) ask around. Finally, take a look at your building. Victorian? That’s easy. The difficult ones are buildings built in the 1960s and 1970s, the big square ugly boxes reminiscent of the shit they’re building these days.
How many units are in your building?
That seems like a no-brainer. But it’s not so easy if you live in a single-family dwelling in which the landlord rents rooms. The Rent Board might consider each room as a unit depending on the facts. The other common scenario is the single-family house with an illegal in-law. Rent controlled? (By that I mean, subject to annual allowable increases?) Yes. This is a two-unit building because Illegal units are covered by the Rent Ordinance.
Do you live in a house?
If the house was built before 1979, it is subject only to the just cause eviction provisions of the Rent Ordinance and the landlord can increase the rent as much as he likes…within reason. However, if your tenancy started before 1996, the house is subject to the price control provisions of the ordinance.
Do you live in a condominium?
This can be difficult to ascertain if you live in a converted building. Ask the landlord or check the Assessor-Recorder site above. Condos are legal single-family dwellings, usually only subject to the just cause eviction provisions of the Ordinance. There is an exception, see Tenant Troubles: Are The Buyout Terms My Landlord’s Offering Acceptable?
How old are you? Are you disabled?
This may be applicable if you are a protected tenant under the Rent Ordinance.
How long have you lived in your unit?
This could be important to determine if you have a protected status or, as in the example above, if your tenancy in a house or condo is subject to price control.
How much is your rent?
Often this is the most important detail because it usually points to the underlying motive of the landlord for taking whatever action he is taking–he thinks you’re not paying enough rent.
What does your lease say about it?
The lease controls the terms of your tenancy. It is always helpful to me to understand how to apply the law to your problem when I know if there is an applicable term in your lease. For example, if you are having a problem adding a new roommate, I need to know if the lease absolutely prohibits subleasing or if subleasing is subject to the landlord’s written consent. The ordinance is different for each scenario.
Details, details, details.
If the landlord is harassing you, I want to know how. Does the landlord like to watch you sleep? It’s important to understand if your lease has a clause prohibiting pets and you just adopted a baby gorilla. It’s also important to know about the gorilla because other laws may apply. Sometimes little details can shed light on an issue you may not know you have.
Obviously, this format has its limits. If you know your unit is rent controlled you can just say so. I want the gory details that make your case unique. They help make this column more interesting and fun.
Oh yeah, if you live in Oakland, I need to know that, because they have a different Rent Ordinance. If you live in Daly City, I also need to know that, because they don’t have jack to protect tenants except feudal (California) law.
I’m at 48 Hills to answer your landlord-tenant questions every Wednesday, so send them to me at Askdave@48hills.org
The opinions expressed in these articles are those of the author and do not constitute legal advice. The information provided is general in nature. Seek the advice of a tenant attorney for any specific problem or issue. You understand that no attorney-client relationship will exist with Dave Crow or Crow & Rose, Attorneys at Law unless they have agreed to represent you. You should not respond to this site with any information that you believe is highly confidential.
