Tenant Troubles

Tenant Troubles: What Prop. 10 is really about

“Local governments are on the front lines of managing homelessness, displacement and gentrification. They need the ability to stop the bleeding. Proposition 10 would give them an additional option for helping those at risk of losing their homes. Proposition 10 isn’t the solution to the state’s affordable housing crisis, but it is a valuable tool to manage the consequences.” —Los Angeles Times, September 15, 2018

“It’s about local control, which is why we recommend Californians vote ‘yes.’ ” —The Sacramento Bee, September 14, 2018

If enacted, Proposition 10 will repeal the Costa Hawkins Rental Housing Act, nothing more, nothing less.

The Rent is Too Damn High

What is the Costa-Hawkins Rental Housing Act?

Costa-Hawkins was a bipartisan measure authored by Jim Costa (D-Fresno). A congressman now and a member of the Blue Dog Democrats, Costa has always been a shill for big agriculture, big oil, and the so-called real estate industry;  and Phil Hawkins (R-Bellflower), a one-term 56th Assembly District representative who currently serves on the Board of Directors of the Central Basin Municipal Water District.

The California Legislature enacted the Costa-Hawkins Rental Housing Act in 1995 with the passage of AB 1164 (Hawkins) and its predecessor, SB 1257 (Costa) with support from one-percenters like the so-called Coalition for Fair Rental Policy, the California Building Industry Association, the California League of Savings Institutions, the California Land Title Association, the California Mortgage Bankers Association, and various property owners and apartment associations throughout California.

The Costa Hawkins Rental Housing Act banned any vacancy control—regulated rents that continue when a unit is vacated (think Berkeley.) It also entirely exempted single-family dwellings from rent control.

The most pernicious effect of the act was to absolutely prohibit local jurisdictions from enacting any future rent control for housing built after February 1, 1995.

Think of it this way: In 1995 Congress prohibits states from enacting any automobile fuel emission controls or standards (for sake of the argument let’s not debate the constitutionality of this). The benefit to a few special interest groups is obvious—the oil companies and the auto manufacturers will get richer and richer. Meanwhile the pollution becomes more and more toxic. People begin to die. Shouldn’t our state have the ability to enact measures to control that pollution? Shouldn’t we, as a state, a more local government, be allowed the right to chart the course of our own future?

As a state law, the Costa-Hawkins Act preempts any attempts by local governments to deal with the well-documented current housing crisis by controlling the price of rents in housing built after 1995. Proposition 10 repeals Costa-Hawkins, but does not mandate any rent control itself. It will be up to local governments to decide if they want rent control or not.

Proposition 10 embodies the true spirit of California’s initiative process.

California has a long history with the initiative and referendum process. Enacted in 1911, it was described in the Los Angeles Times as a vote “that thrust from power the Captains of Greed.”

An argument for the original measure to enact the initiative process stated, “One of the strongest arguments in its favor is the character of many of those who oppose it. Opposing it will be found without exception the servants of special interests, and those who profit through special legislation. Added to these are those who may be termed our “Political Aristocrats,” who distrust and scoff at the people; who are accustomed to sneer at self-government as ‘The rule of the Mob,’ or ‘the Tyranny or Majorities.’ ”

The initiative process has been maligned in recent years, largely because special interest groups masquerade as populists (think Trump) and spend tons of money to confuse voters to support their various whims.

Proposition 10 is an initiative written and supported by tenant groups who represent real people, tenants who are neither rich nor particularly powerful…yet. Costa Hawkins was enacted by griftocrats showered in bribes…I mean contributions…from the so-called real estate industry that represents a small class of people who still deign to call themselves lords.

Proposition 10 is exactly the type of law the creators of the initiative process envisioned—a law proposed by an underclass ignored and vilified by their supposed representatives.

The ludicrous arguments against Proposition 10

The various TV ads opposing Proposition 10 seem to cloak themselves in a kind of pro-tenant language: Prop 10 has no protections for renters, seniors, veterans, or the disabled. Correct. Prop 10 has no specific provisions to reduce rents. Correct. Prop 10 contains zero funding for affordable housing and contains no requirements that housing be built. Correct.

All of these “arguments” essentially ask the question: Why aren’t there any peaches in this apple pie?

Another argument against Proposition 10 goes something like this: “Prop 10 is the wrong approach. It repeals animportantCalifornia rental housing law with no replacement and no plan to address affordable and middle-class housing or deal with the problem of increasing homelessness on our streets.”

Proposition 10 seeks to repeal an existing law than neither provides any tenant protections, nor would allow any local government to attempt to increase protections. Costa-Hawkins would prevent local governments from establishing rent control for buildings filled with senior, veterans and the disabled built after 1995. Costa-Hawkins would prevent local governments from establishing specific provisions to reduce rents. Costa-Hawkins would prevent local governments from using rent control as a means to help to create affordable housing.

Costa-Hawkins is only important to those “Captains of Greed” those landlords who can’t imagine a place where local control, real democracy, might seek to control rents.

Proposition 10 Does Not Mandate Any Rent Control

Once again, Proposition 10 only repeals Cost-Hawkins in order to return rent control decision making to local governments. Those who oppose repeal want to paint it as some kind of new rent control law. It is not.

Those who oppose Proposition 10 would rather debate rent control on a statewide basis so that they can hide behind their slick, meaningless TV ads. They don’t want local governments to have right to chart the course of our own future They abhor the idea that they may have to debate the issue locally. That, locally, someone might know them and confront them personally, exposing their opposition for what it really is—unmitigated, inhumane, aristocratic greed.

Tenant Troubles: My washer broke — should I sign a lease?

Tenant lawyer Dave Crow is hear every week to answer your questions. Email him at [email protected] or click here to contact him directly here.

I have lived in a rent-controlled apartment for about 10 years in a building with about 18 units.

Our building was sold to the notorious Lembi Group back in the day and they tried to evict all rent-controlled tenants under Costa Hawkins.  We hired a lawyer and went to the rent board who determined that we were indeed tenants and that Costa Hawkins didn’t apply.

As part of that case, the lawyer from the Lembi Group (CitiApartments) informed us that the previous landlord didn’t have a lease on file for us. We were never given a copy of the lease either, as the apartment’s original tenant moved away and subsequent tenancies were handled verbally with the landlord.

It’s a four-bedroom apartment with a fairly consistent group of roommates – in the past, when a roommate left, the new roommate was approved verbally by the landlord.  No 6.14 notices were ever presented.

When CitiApartments went under, our building was sold again.  The new owners pressured me to sign a new lease, but the Tenants’ Union said I shouldn’t sign one – they said a lease is essentially just a list of reasons for the landlord to be able to evict you.  After my experience with CitiApartments, I was suspicious of all landlords and I didn’t want to sign anything that might give them an excuse to evict us, so I never signed a new lease.

I have now been living under the new management for about four years with no written lease.  Several months ago our washing machine broke.  This is a washing machine that was provided by the original landlord years ago, along with the other appliances.  When I contacted the management company about it, they said they weren’t responsible for it since I didn’t have a written lease stating that they provided it.  They said they would take responsibility for it if I would sign a new lease that included the washing machine and other appliances.

They were using the situation as leverage to force me to sign a lease, so we chose to pay for the repairs ourselves. They have done other repairs without pressuring me – plumbing issues, water damage – but the washing machine is the only appliance we’ve had issues with so far.

It’s been several years now and this management group seems to be pretty good.  They’ve done some long-needed repairs on the building and appear to be a decent company.  So now I’m wondering if I should sign a lease.  I don’t want to have to pay for all repairs to appliances myself, but I don’t want to put myself in a position to be evicted.

Do I need a written lease? If so, what tricks/clauses/loopholes should I watch out for?

I’m glad you mentioned your past experience with the Lembi Group and CitiApartments. It may seem like the distant past now, but as the US Congress for the Rich continues to push for more banking deregulation, we could easily see more real estate investment financed by junk bonds, credit default swaps abetted by derivatives. And once again tenants and regular working people will be required to bail out the institutions that aided and abetted the landlords who harassed and evicted them. For a great take on the Lembis and real estate investment circa 2009,  take a look at “War of Values,” by my friend Danelle Morton.

I tend to agree with the Tenants Union on this one. Why? Because you’ll be presented with a 20+ page lease, like the San Francisco Apartment Association lease, in which several clauses come close to being void as against public policy and others may weaken your rights under the San Francisco Rent Ordinance.

Right now, your oral agreement does not contain any terms that you could breach, subjecting you to a potential unlawful detainer (eviction) lawsuit. The oral agreement doesn’t contain any clauses limiting subletting. Not that such a clause would present as much of a problem as it did in the old days. An oral agreement cannot be enforced to collect any late fees, which must be stated in a written agreement, but there are arguments that late fees cannot collected or when they can be collected, they can only be based upon the California legal interest rate of 10%. About the only way the landlords could evict you with cause would be for nonpayment of rent.

Generally, I only recommend that tenants sign new leases that may modestly increase the rent for single family dwellings, houses or condominiums.

So let me get this straight. You’re thinking of signing a new lease because you want the landlord to repair the washing machine?

If you seek a decrease in services at the Rent Board to require that the landlord reduce your rent for the period of time the washing machine was unusable, you can state that your oral agreement provided the use of the washing machine. This would be especially true if the washer is located in your unit. How are the new landlords going to deny that? They weren’t around at the time the agreement was made.

Is this argument foolproof? Maybe not, but it’s worth a shot and the advantages far outweigh signing a brand new lease. That is, unless the lease contained only two clauses: 1) The rent is due on the first; and 2) The washing machine is a housing service provided in the tenancy. 

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.

Tenant Troubles: Can I add two roommates? Should I?

The campaign to repeal the Costa Hawkins Act will be harmed by people playing fast and loose with their tenancies

Tenant lawyer Dave Crow is hear every week to answer your questions. Email him at [email protected] or click here to contact him directly here.

I was researching on how to add new roommates to my lease in SF, and found your super article, “Tenant Troubles: Can I add a new roommate to my lease?”

I would love some help. I have a 1-bedroom rent controlled apartment, and I would like to keep it, as I love the location. The lease is originally for 1 adult occupant (myself) and my son (a teen now, a toddler when we started renting). I’ve lived there for 10 years. I entered into a new lease in a different bay area city a month ago. I need more space for a home business, and it was getting very cramped with a teen son. I work in SF and it’s convenient for me to switch up and stay in this SF apartment at times, plus it’s nice to be in my old neighborhood/stomping grounds.

The campaign to repeal the Costa Hawkins Act will be harmed by people playing fast and loose with their tenancies

I have a couple who are interested in becoming new roommates. I read your article, it was a really nice confirmation of my understanding of Rent Board Rules & Regulations § 6.15E.

I’ve notified the landlord, and let him know that I am requesting to add 2 roommates, and remove my son as an occupant, so it ends up becoming 3 occupants total, for a 1 bedroom. I’ll be responsible for full payment. The landlord is unwilling to approve of it and he did not give a reason.

I have a few questions:

  1. I would like to ask what are my options in challenging this? I see that your article suggests to petition for a rent decrease for a reduction in housing services. If I go this route, can I ask for 2/3 reduction since they are refusing for me to add 2 occupants?
  2. Alternatively, can I ask the Rent Board to allow the new roommates, since the landlord has no reason to reject, and it is a roomy 1 bedroom, 550 square feet? What are my chances in pursuing this option? The roommates need a place, and they were expecting to move in soon, and it would be my preferred outcome.
  3. Would you recommend I use a lawyer such as yourself? I have never approached the Rent Board before.

If you have read my other articles about absentee master tenants, you know that I advise potential new roommates to never, evermove into an apartment with an absentee master tenant. See, e.g. My Absentee Master Tenant Was Scamming Me And My LandlordWhy An Absentee Master Tenant Is A Bad Idea; and I Think My Master Tenant Is Scamming Me.

Arguably, the landlord’s refusal to sublet is per se unreasonable because he did not give you a reason for his refusal. Arguably, you can simply allow the new “roommates” to move in. But I still think it’s a bad idea and here’s why.

First, you should understand how a lawyer or a judge, including an administrative law judge at the Rent Board, might read your facts if they were offered as some sort of statement under oath:

“I have a 1-bedroom rent controlled apartment, and I would like to keep it, as I love the location.” You want to keep your apartment, but you don’t needto keep it.

“The lease is originally for 1 adult occupant (myself) and my son (a teen now, a toddler when we started renting). I’ve lived there for 10 years. I entered into a new lease in a different bay area city a month ago. I need more space for a home business, and it was getting very cramped with a teen son.” Your son is a minor and he still lives with you. He moved out because you did. You have a home business. You moved out of your San Francisco apartment to get more living and working space.

“I work in SF and it’s convenient for me to switch up and stay in this SF apartment at times, plus it’s nice to be in my old neighborhood/stomping grounds.” Earlier you said you have a home business, now you say you work in SF. Which is it? I’m not saying you can’t have both, but it’s not apparent that you must come to San Francisco on a regular basis for work. You confirm that, by saying you want to come to San Francisco, occasionally, to hang out.

Based upon the facts you’ve presented here (and I’m not saying that there aren’t more), I could conclude that you want to maintain a San Francisco pied-à-terre to which you could return once and awhile to get drunk in the old neighborhood and sleep on the couch to avoid driving home.

Second, think about the new “roommates.” I’m sure they’re delighted at being able to pay below-market rent, that is unless you’re charging them airbnb rates. They may even be willing to reserve a place on the couch for you when you come to the City, but for how long?

Moreover, if the landlord gets wind of your arrangement, he will likely serve a 60-day notice to increase the rent based upon the fact that the unit is not your permanent place of residence per the Costa Hawkins Rental Housing Act, which, hopefully will be repealed in November. The landlord can allege that he has the right to increase the rent because the new “roommates” are subsequent occupants and the unit is not your permanent place of residence.

The landlord also could attempt to evict them outright under Rent Ordinance § 37.9(a)(7):

“A landlord shall not endeavor to recover possession of a rental unit unless The tenant holding at the end of the term of the oral or written agreement is a subtenant not approved by the landlord.”

I don’t think an attempt to evict, based on this section would hold much sway over a court because the landlord has unreasonably refused such approval. But that doesn’t mean that the landlord won’t try to evict, subjecting you and your new “roommates” to the massive cost of defending an eviction in court. I also believe that this section of the Rent Ordinance should be eliminated, given the Kim Amendments.

Finally, your decision to sublet rather than to simply move out weakens rent control for the rest of us. As the campaign against Costa Hawkins repeal heats up, we’re going to see ads on TV depicting crying little old ladies, the “mom and pop landlords” crying and whining about how nasty tenants, like you, usurped landlords’ god-given right to increase the rent by moving out and subletting apartments to new roommates.

To briefly answer your questions: 1) For the reasons above, I wouldn’t advise you to try to seek a decrease in rent at the Rent Board, other lawyers might, but I wouldn’t; 2) The Rent Board does not have the jurisdiction to require that the landlord accept the new “roommates”; and 3) We would not take your case, others might, but we wouldn’t.

Bad idea! Don’t do it!

Tenant Troubles: How do I get my roommate to leave?

Is this what you come home to? Mediation may be a better answer than trying to throw your roommate out

Dave: How am I able to have my roommate, who was once was my domestic partner, to get him to leave my apartment?  He continues to possess the same type of behavior is most common when relations aren’t working out — paying rent late, having friends over during hours when everyone is sleeping at 3am, being loud, skipping out on doing dishes, etc.  My roommate and I didn’t sign any agreements or conditions of him living here, nor did he provide any security deposit initially during the time of move-in.  I feel I am not able to find a rational reason to evict him even after talking to him that it’s best that he finds other living arrangements.  He says he’s not budging, but integrates all of these passive-aggressive tactics so that I no longer want to be living with him.  Any options you may have aside from hiring a lawyer?

Is this what you come home to? Mediation may be a better answer than trying to throw your roommate out

DETAILS:

For 22 years, I rent a one-bedroom apartment in the City of West Hollywood, CA.  The apartment is regulated by the Rent Stabilization Ordinance (RSO). There must be a Just Cause from the Property Management to reasonably evict a tenant.  The 16-unit apartment was built in 1950. I am a 49-year-old male that is not disabled and currently live with my roommate who was at some point my domestic partner. We recently have drifted apart and only use the domestic document to  for him to live with me as a family member.  I am the solely responsible for the terms of my lease.

I just would like to take the time to applaud you for the information you provide to the readers of your site.  What stands out to me are your detailed responses that empower a renter and their tenancy.

Thank you for your kind remarks. I receive calls from all over the nation and, to the extent I can, I try to provide tenants with local resources to help them deal with their local laws. I enjoy writing this column and responding to readers because it keeps me on my toes. So it’s good to hear from you in West Hollywood, where you have an extensive rent ordinance that’s easily accessible online.

As you know, The West Hollywood Rent Ordinance requires that a tenant be evicted for a just cause:

  • Nonpayment of rent;
  • Creating a nuisance or using a rental unit for illegal purposes;
  • Subleasing without the landlord’s permission;
  • Failure to provide the landlord with reasonable access;
  • Violating written terms of tenancy with certain exceptions under the Ordinance (see below);
  • Failure to renew a lease if given proper notice to renew before the lease-term expires and the lease has gone month-to-month.
  • Termination of employment for an on-site manager or other employee who was given the unit as part of his or her employment and was not a tenant on the same property prior to employment.

The site also contains an information page called Having a Roommate, which states in part:

“When a tenant accepts rent from a roommate in West Hollywood, the roommate is the tenant’s subtenant and has a right to the protections under the Ordinance that a tenant has. Thus, a tenant may not:

  1. ask a subtenant to leave the unit without having cause under the Ordinance and without following the procedures for evicting a tenant;
  2. ask a subtenant to pay more than the Maximum Allowable Rent on a unit;
  3. increase a subtenant’s rent by more than the annual general adjustment each year and not above the tenant’s MAR in any case;
  4. increase the security deposit after a subtenant’s move-in or charge fees not allowed under the Ordinance.”

We have a similar requirement in San Francisco, except that a Master Tenant may evict a roommate without just cause only if, prior to commencement of the tenancy, the Master Tenant informs the roommate in writing that the tenancy is not subject to the just cause provisions of the Rent Ordinance. Rent Board Rules and Regulations § 6.15C.

As a long-time tenant, I understand your conundrum and I empathize with you, but as you may know, I’ve taken the blood oath to neverrepresent master tenants seeking to evict their roommates. And that includes giving advice on the subject.

It sounds to me like you have tried to be rational with him, to no avail. I note that West Hollywood Legal Services Division does provide mediation services for landlords and tenants. You may want to give them a call to see if they will provide mediation for a master tenant and roommate. While I’m not aware of them, there may be other community organizations that provide mediation services as well.

If you find a lawyer, it’s likely you’ll end up with a landlord lawyer who will encourage you to cook up a just cause eviction like, maybe, nuisance because your roommate parities with his friends until 3:00am. Let me tell you, that can get real sleazy, real fast, not to mention, costly. I would not advise you to try to go to the owner or property manager because they will see your complaint as an opportunity to get rid of you both.

I’m fairly certain you don’t want to move, given the length of you rent-controlled tenancy. However, it may be time to consider the psychological cost of living in your current situation. Place a dollar amount on that cost, if you can, and ask yourself, “Can I find another, similar place for the rent I’m paying plus that cost?”

Of course, you can also use that same methodology to figure out how much to offer your roommate to move out, adding what it would cost you to hire a lawyer. As Tom Gray of the Brains said before Cyndi Lauper, “Money changes everything.”

She said I’m sorry baby I’m leaving you tonight


I found someone new he’s waitin’ in the car outside


Ah honey how could you do it


We swore each other everlasting love


She said well yeah I know but when


We did; there was one thing we weren’t


Really thinking of and that’s money

If your roommate accepts your offer, get a general release of all claims from him in writing.

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 [email protected]

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.

Tenant Troubles: Can my landlord refuse to let me have a service animal?

A service animal is not a pet

Can a landlord legally refuse to rent to a tenant who owns a dog (service animal), if the prospective tenant is disabled and the dog helps his disability?

If not, what if the disability is only psychiatric in nature?

And if not, how would the prospective tenant be able to prove to the landlord that his dog is for his disability?

If your lease prohibits pets (and many of them do) a landlord can initially refuse to allow a tenant to get a pet. Note that I said initially.If you are disabled and you need a service animal to provide service or emotional support, you have the right to ask your landlord to allow a pet in the premises regardless of the language in the lease. A service animal is not a pet.

A service animal is not a pet

A request for reasonable accommodation before one leases an apartment may be difficult. If prospective tenant applies to rent an apartment in “no pets” building, discloses his or her disability and asks for a reasonable accommodation to have a service animal, a landlord could simply refuse to rent based upon other criteria. For example, an African American or a family with children shows up to fill out an application for a rental and the landlord tells the applicant that the apartment has already been rented—classic examples of discrimination of housing discrimination

It might be difficult and expensive to prove that the landlord discriminated against the tenant based upon his or her disability.

If you suspect that a landlord has rejected your application to rent because you are disabled, you should file a complaint with the California Department of Fair Employment and Housing.

A guide dog for a blind person is a classic service animal. A landlord who refused a request for such an animal is clearly discriminating against the tenant based upon disability.

A request to allow an emotional support animal is a little more tricky, but your rights are still clearly defined under the law.

Discrimination under the FHA includes “a refusal to make reasonable accommodations in rules, policies, practices, or services, when such accommodations may be necessary to afford [a person with a disability] an equal opportunity to use and enjoy a dwelling.” 42 U.S.C. § 3604(f)(3)(B). So long as the requested accommodation does not constitute an undue financial or administrative burden for the landlord, or fundamentally alter the nature of the housing, the landlord must provide the accommodation. ( Right to Emotional Support Animals in “No Pet” Housing, Bazelon Center for Mental Health Law.)

I recommend that you read the entire article quoted above, as it provides a thorough analysis of federal law applicable to emotional support animals.

Asking your landlord to add a pet based upon your disability is called a request for a reasonable accommodation. Your request must be reasonable. For example, you cannot request that the landlord, to accommodate your disability, purchase Flynn, the bichon frisé best in show winner at this year’s Westminster Kennel Club dog show and add him to your lease. That would be unreasonable. It would also be unreasonable to get a big, untrained, vicious dog because the landlord could be liable if the dog bit someone in the building.

You must also be prepared to prove to the landlord that you are disabled within the meaning of the Americans with Disabilities Act.

When the disability or need for reasonable accommodation is not obvious, a landlord may ask the person with a disability for documentation that he or she has a disability and a disability-related need for the service dog or support animal. The tenant or boarder must then provide the landlord with reasonable medical documentation from a health care provider that confirms the existence of the disability and the need for reasonable accommodation.  (When California Landlords Must Allow Tenants to Have Service Dogs and Emotional Support Animals, by Zachary Duffly, Nolo Press)

Under California law, the health care provider who provides this documentation does not have to be a doctor. Documentation can come from other providers, including clinical psychologists, clinical social workers, or marriage and family therapists.

 If your disability is psychiatricyou are absolutely entitled to request a reasonable accommodationthat could include owning a service animal.

If you are planning to request a reasonable accommodation to get a companion animal, you should also check out PAWS (Pets Are Wonderful Support). In San Francisco they are now a division of the Shanti Project . Their site provides a step-by-step procedure to request a reasonable accommodation to get a support animal. The PAWS suggestions about a health provider’s letter are simple, accurate descriptions of the legal requirements for such a letter:

In order to prove that a dog is a service or support animal, you may be asked to have documentation from a licensed professional (doctor, nurse practitioner, psychiatrist, other mental-health professional or social worker) stating that the animal is an essential part of treatment for a disability. A doctor’s letter must have two essential components.

  1. It must state that you have a disability. The disability does not need to be identified. 2. It must state that it is the professional opinion of the provider that is it essential for you to have a service/support animal.

From my point of view, a common mistake tenant can make is getting a pet (service animal) first and then attempting to justify the need for the animal later–after the landlord, during his annual, unannounced, illegal inspection, discovers Fluffy hiding in a closet. While the mistake is not irreparable if you make a timely request for reasonable accommodation, you don’t want to find yourself in court defending an eviction based upon your breach of the lease. You might win, but it will cost you a bundle of dough, and, believe me, it will only exacerbate the symptoms of your disability.

If your lease prohibits pets, make your request for reasonable accommodation in writing. If your landlord accepts your request, get it in writing.

If you are not disabled and your landlord refuses your request for a pet rather than a service animal, forget it. I’ve seen too many instances in which long-term tenants are forced to choose between their beloved dog and living in the streets.

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 [email protected]

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.

 

Tenant Troubles: Do landlords really have a secret ‘Rule of Seven?’

The secret landlord society?

Editor’s note: It’s hard to be a renter in San Francisco these days; some landlords are constantly looking for ways to squeeze out more rent money, to replace long-term tenants who are paying below-market rent, or to make your life more difficult so that you’ll leave. Tenant lawyer Dave Crow is here to answer your questions every Wednesday at 48hills. You can send him queries at [email protected]

Is there some type of seven-year rule that benefits landlords if they do not raise the rent for seven years and then increase it all at once?

I ask this because when I moved into my flat in 2011 the landlord said that generally he wouldn’t raise the rent unless someone stayed for seven years, at which point he would raise it by about 7%.

Then, about two weeks ago I was out with some friends who live my neighborhood and their landlord had just raised their rent by about 10% after they had been living in their flat for seven years.

Then just last night I ran into a neighbor across the street who told me that she has to move after having lived in her building for seven years because the landlord had raised the rent. We all live in buildings that are covered by rent control.

What is going on?

By 1978 the residential real estate market in San Francisco had changed forever. Gone were the days when an investor bought an apartment building based on a conservative projection of its future income and strictly evaluated the building based on its net operating income. A new breed of rapacious real estate brokers–many of them followers of Werner Erhard’s EST (a quintessential me-generation, greed-is-good pseudoreligion popular in the 70s)–realized that San Francisco real estate could be sold without regard to old, stuffy “market value” considerations, despite climbing interest rates of 11% and 12%.

A new breed of buyers agreed. Doctors and dentists began to invest in large downtown apartment buildings. They didn’t care about cash flow as long as they could write off the substantial debt service. They chanted the mantra “Location, location, location.”

Of course the big vipers, like Angelo Sangiacomo and Gunther Kaussen knew they could have their cake and eat it too. Sangiacomo is known as the Father of Rent Control because he steadfastly refused to cease doubling, tripling and even quadrupling rents for his 1,700 units. Kaussen, described by Der Spiegel as “the world’s biggest slumlord” with 2,000 units in the Tenderloin, crushed his tenants with similar practices.

Later that year, rumor grew of a shadow in the East, whispers of a nameless fear, and Rent Control now emerged. Its time had come–in Berkeley and Davis and Cotati kingdoms.

In 1979 the interest rates hit 13% and landlords’ lairs echoed with this refrain: “What news from the South, oh sighing wind, do you bring to me at eve? Where now is Santa Monica? Tenants vote and I grieve.” After Santa Monica voters passed a tough Rent Control Ordinance that included vacancy control – that is, rent controls that stay in place when an apartment is vacated — in April, 1979, the San Francisco Board of Supervisors rushed to enact the anemic Rent Ordinance we have now.

Landlords were frightened, scared witless. Many of them lacked the ability (or the literacy) to analyze and interpret the new Rent Ordinance. (While I sympathize to a degree, one can often rely on plain meaning to get by.) Some landlords were just too cheap to hire lawyers and their realtor advisors, hampered by the maximum IQ licensing requirement, were no help either.

After a long night of cocaine and disco binging at Henry Africa’s, a group of disgruntled landlords, lamenting the enactment of rent control, careened over to Anton LaVey’splace, where they and assorted Satanic worshipers conducted a voodoo ritual/seance designed to purge the city of all tenants. Upon absinthe blurred reflection the next day, the landlords, realizing that driving tenants from the City might disrupt their income streams, decided instead to use their newfound occult skills to understand the Rent Ordinance and thwart its supporters.

Thus, the Small Property Owners Occult Knowledge Society (SPOOKS) was born.

The secret landlord society?

In its heyday in 1980-83, SPOOKS attracted a membership of between 50 and 200 landlords and their supporters. In some circles SPOOKS was more popular than EST. Their monthly meetings at Trader Vic’s were notorious because members never removed their masks and the only nourishment one could take was through a straw.  Evidently the meetings were conducted in hushed whispers punctuated by slurping and demented cackling–truly occult.

Not much is known about the SPOOKS philosophy or the Society’s impact on the landlord community at large. There aren’t many records left and, like EST, no one will admit to former membership in the organization.

But you have stumbled upon a persistent SPOOKS holdover from the past–The Rule of Seven.

We will never know whether The Rule of Seven was devised as a tenant intimidation technique or it was an occult interpretation (misunderstanding) of the method of banking rent increases. Landlords were not allowed to bank, that is save up increases to impose them all at once, until 1982.  From 1982 to 1984, the annual allowable increase that could be imposed was 7% (Hear the thereminin the background?) per year. Rent Ordinance §37.3(a)(2) now provides:

Banking. A landlord who refrains from imposing an annual rent increase or any portion thereof may accumulate said increase and impose that amount on the tenant’s subsequent rent increase anniversary dates. A landlord who, between April 1, 1982 and February 29, 1984, has banked an annual 7% rent increase (or rent increases) or any portion thereof may impose the accumulated increase on the tenant’s subsequent rent increase anniversary dates.

After 1984 a “seven-year wait and bank” strategy may have been effective because a landlord could increase the rent by 28%. But think about it, the strategy would assume a tenant would live in a unit for seven years, an assumption that is not corroborated by statistics. If the initial rent was $1,000.00 in 1984, the landlord would also lose $10,779.40 in accumulated income over seven years.

These days, the rent increases are formulated based on 60% of the annual local Consumer Price Index. If you moved into your unit in 2011 and the landlord never increased the rent, now, he could only bank an increase total of  12.1%. Again, the landlord loses the accumulated income along the way.

Therefore, waiting seven years to increase the rent is a strategy of “Cut your nose off to spite your face.” It’s a stupid, vindictive and financially unsound practice that could only be justified by ignorant superstition, evidence that some landlords have SPOOKS in their brains.

Try to identify your landlord in the photos. Then read more about the history of San Francisco rent control in 1980-1991: Rent Control Wars, by Randy Shaw, and from the landlords’ perspective, The Birth of Rent Control in San Francisco, by Jim Forbes & Matthew C. Sheridan.

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?

Sponsored link

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 [email protected]

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.

Tenant Troubles: Can a landlord take down my TV dish?

Do you have exclusive rights to the deck? It might be an issue

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 [email protected]

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.

Do you have exclusive rights to the deck? It might be an issue

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 [email protected]

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.

Tenant Troubles: Can my landlord spy on me?

Editors note: Tenant lawyer Dave Crow is here every Wednesday to answer your questions. Email [email protected]

I’m a 14-year rent controlled tenant in the TenderNob. Two years ago, my landlord surreptitiously trained a surveillance camera well-disguised as a smoke detector at my unit door—and only at my unit door. In fact, it’s the only camera in the entire building, a building with a long history of mail package thefts in its lobby.

The camera was ostensibly placed in front of my door in anticipation of an eviction filing to come the following calendar year, to collect evidence for said filing in other words. The rather flimsy nuisance eviction attempt never came close to trial, though exactly one deposition was taken and the stress of the whole thing totally dominated my 2017. But the camera, for the most part, flopped as an evidence collection tool, on this occasion at least.

But now the camera-cloaked-as-faux-smoke-detector remains fixed in place directly aimed at my unit door and the landlord has refused to move it after multiple requests every few months. I am not allowed to access the camera, or understand how it works, or how the footage of me and all my guests is collected or stored. The hidden camera isn’t going anywhere. But this feels like such a long-term invasion and completely makes toxic my relationship with my landlord as long as it records all my comings and goings and those of all of my guests.

To be clear, the camera is placed on the common hallways ceiling (8.5-9’ high) and is about eight feet in front of my unit door. Based on the still frames that were discovered in last year’s aborted eviction, the camera only captures my door, no others, and only records individuals who enter and exit my unit. And the camera can see inside my unit, but only just about 4-5 feet into my entryway/hallway area. The camera ostensibly never stops recording my unit door and has been doing so since summer 2016.

The party line among the various legal counsel to whom I have spoken about this, is that such tactics are per se legal, even under our comparatively tenant-friendly SF Rent Ordinance, because landlords can always place cameras in their common areas and that litigating such tactics would be a total waste of time for any tenant in my position.

After almost two full years of non-stop, targeted surveillance, these security camera bromides are getting harder and harder for me to swallow. Don’t such targeted surveillance cameras violate at least the spirit and intent of our Rent Ordinance by applying undue pressure on specific tenants like me to give up their longstanding, well-below-market rental units with the apparent intent of tenant turnover and increasing the yearly value of such a unit two or threefold?

Is there really nothing that can be done under the Rent Ordinance or at the Rent Board to challenge such heavy-handed landlord tactics? Doesn’t the now long-term nature of the surveillance targeted at me at least make it more egregious and potentially more actionable? What if this lasts for another 15 years? When, if ever, does targeted 24/7 unit surveillance cross over the line into landlord harassment? Please examine this from all the angles, as I know I am not alone and this problem is sure to only get worse as such technology becomes more mainstream and affordable.

The “bromides” to which you refer reflect a common apathy about the use of surveillance cameras everywhere—the slowly boiling frog approach to an “inevitable” societal slide into a police state. As long as we accept, without question, a surveillance state, the short answer to your question is: no, there isn’t much that can be done.

The rationale for the use of surveillance cameras.

Any policy adopted to diminish the right to privacy, finally recognized as a constitutional guarantee in Griswald v, Connecticut(1965) 381 U.S. 479, will be based upon an urgent need that trumps that right, e.g. national security, crime prevention, etc. Landlords often justify a decision to install surveillance cameras outside and in the common areas of a building as bid to provide a safe, secure residential environment. Landlords will point out that they have a duty to their tenants to do so.

The landlord’s duty

I read several California cases that define a landlord’s duty to provide security for tenants:

“Out of the generic obligations owed by landowners to maintain property in a reasonably safe condition, the law of negligence in the landlord-tenant context has evolved to impose a duty of reasonable care on the owner of an apartment building to protect its tenants from foreseeable third-party criminal assaults. Thus, the question of a landlord’s duty is not whether a duty exists at all, but rather what is the scope of the landlord’s duty given the particular facts of the case?” —Vasquez v. Residential Investments (2004)118 Cal.App.4th 269

“The scope of a landowner’s duty to provide protection from foreseeable third-party criminal acts is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. Duty in such circumstances is determined by a balancing of ‘foreseeability’ of the criminal acts against the ‘burdensomeness, vagueness, and efficacy’ of the proposed security measures.” —Yu Fang Tan v. Arnel Management(2009) 170 Cal.App.4th 1087.

Generally, intervening criminal acts will negate a landlord’s duty to a tenant if the criminal act was unforeseeable. For example, if a tenant is mugged outside of his or her building by an unknown assailant, usually the landlord will not be held liable. The law can impose landlord liability for criminal acts when the building is located in a high crime area and/or the landlord is informed of a specific threat and does nothing to prevent it. California cases have found a landlord liable for refusing to repair security gates, ignoring repeated requests by tenants for the repairs, when a subsequent rape occurred in the building. A landlord breached his duty when he received prior written notice that a tenant in the building had brandished a shotgun at another tenant and a visitor in an angry and threatening manner. A landlord had duty to replace missing glass on apartment door murderer used to obtain entry.

Foreseeability is a crucial factor in determining the existence of duty. A duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. Ann M. v. Pacific Plaza Shopping Center(1999) 6 Cal.4th 666.

All of the cases I read imposed liability upon a landlord who failed to act given the specific foreseeability of the given act. None of the cases imposed a duty to provide security guards in in a building because the court assessed that providing such guard would impose an undue burden upon the landlord despite foreseeability. I could not find any cases that established a landlord’s duty provide camera surveillance in a building.

Your landlord may justify the installation of the camera for safety and security of the building, but as far as I can tell, he does not have the duty to provide it, nor would he be able to prove its efficacy to provide safety or security, nor would he be liable for unforeseen criminal liability, despite the surveillance.

Surveillance does not prevent crime

After the Boston Marathon bombing, a great deal of attention and praise was lavished on surveillance systems, public and private, aiding in the apprehension of the bombers — but the surveillance did not prevent the bombing.

“An increasing number of American cities and towns are currently investing millions of taxpayer dollars in surveillance camera systems. But few are closely examining the costs and benefits of those investments, or creating mechanisms for measuring those costs and benefits over time. There is extensive academic literature on the subject—studies carried out over many years—and that research strongly indicates that video surveillance has no statistically significant effect on crime rates.” —ACLU Expert Findings on Surveillance Cameras.

The ACLU report cites serval studies done in Great Britain and the United States.

There may be some small impact on property crime. Think the TV commercials that show the would-be thief about ready to grab your Christmas gifts from the front porch when he notices the camera and decides to pick another house.

Cameras installed in an LA housing project may have played a role in preventing a substantial escalation of crime relative to surrounding areas, since the housing project was the site of a gang war during the period of the study. Yet, “meta-analyses from the UK, along with preliminary findings from the US, indicate strongly that video surveillance has little to no positive impact on crime.”

The true aim of surveillance—compiling dossiers and exerting control

“We are not safer from terrorism with security cameras in our cities. Particularly terrorists who are willing to die, security cameras do not control their behavior. They would not stop them from planning to pull off an attack. Cameras don’t just watch criminals, but they watch everybody. Someone visits their psychiatrist every Monday at two in the afternoon, traveling through public spaces. Where they’re going is known to nobody, but a network of cameras could pull that out of obscurity. That info is known to government officials.” —Jim Harper, Director of Information Policy Studies at the Cato Institute.

I suspect that ubiquitous surveillance in this country will be used to more and more to compile dossiers and to eventually disrupt (or worse) dissidents, troublemakers who would wrest control from the privileged few, like landlords.

In my experience landlords only spy on a specific tenant for two reasons: 1) to determine if a tenant principally resides in his or her rent controlled unit, and 2) to make a tenant uncomfortable in his or her home. Despite the fact that the landlord tried to evict you for an alleged nuisance does not justify the surveillance and, as you pointed out, the surveillance evidence flopped and was likely inadmissible at trial. But the cameras keep rolling and you’re not ready for your close-up.

Your landlord has gone full Dick Cheney on you and his continued surveillance demonstrates my earlier point that he is compiling whatever evidence he can and, yes, harassing you in the process.

Can you call the cops for this type of landlord surveillance?

The disguised camera is only pointing at your doorway, which indicates that the landlord has singled you out, but California law only punishes those who attempt to procure confidential communications or who want to snoop for more salacious purposes.

California Penal Code § 632(a)  provides: “A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”

The case law interpreting Penal Code § 632(a) construes the statute rather narrowly. It’s unlikely you could prove that the landlord, by installing the camera intended to eavesdrop in this manner…maybe yes, maybe no.

California Penal Code § 647(j)(3)(A)states: “A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person…”

On the other hand, it would also be difficult to prove that the landlord is a peeping Tom. So, calling the cops probably isn’t the answer.

Finally, Rent Ordinance § 37.10B(a)(13), does provide: “No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith: Interfere with a tenant’s right to privacy.” While it seems like you might be able to prove a case for harassment under the Rent Ordinance, without direct reference to surveillance like you have described in the Ordinance, a court would likely apply the more restrictive California law. Winning a case based upon your particular facts would be very difficult.

Here’s my bromide: If it looks like harassment, feels like harassment and smells like harassment, but it’s not explicitly defined as harassment, surveillance will not be considered to be harassment to tenants or anyone else until the lackadaisical public attitude changes toward widespread surveillance.

How to help Dave 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 [email protected]

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.

Tenant Troubles: Do we have to sue to get our deposit back?

Editor’s note: It’s hard to be a renter in San Francisco these days; some landlords are constantly looking for ways to squeeze out more rent money, to replace long-term tenants who are paying below-market rent, or to make your life more difficult so that you’ll leave. Tenant lawyer Dave Crow is here to answer your questions every Wednesday at 48hills. You can send him queries at [email protected]

Dear Dave: Our landlord ran off with our deposit more than 6 months ago. We try and call him but no luck. One big problem, we don’t even have a copy of the lease! We do however have quite a few witnesses who can attest to us living there. We’d like to not go to small claims court. Any ideas?

Let me get this straight, your landlord refused to refund your security deposit six months ago and you don’t want to go to small claims court to get it back? Yeah, I have an idea or two…

But first, let’s go back to 1964. Betty Friedan had already published her book The Feminine Mystique in 1963. That same year, Gloria Steinem wrote her famous article about working in the Playboy Club. The “pill” had been marketed since 1960. Feminism had hit the ground running. In 1964 the iconic British pop singer, Dusty Springfield, released her hit song, “Wishin’ and Hopin.” Listen carefully:

Plannin’ and dreamin’ each night of his charms
That won’t get you into his arms

So if you’re lookin’ to find love you can share
All you gotta do is
Hold him and kiss him and love him (and squeeze him)
And show him that you care

You gotta love her hair… and that eyeliner. Yet even in 1964 the message was, at best, a tepid assertion of feminine will. And unfortunately, the prize was some shitbag who required that you “do the things he likes to do” and “wear your hair just for him.” Like your landlord, perhaps?

I don’t claim to be the Betty Friedan of tenant law. But I have to tell you the only way to show your landlord that you care is to sue him. Squeeze him where it counts. It is unlikely, after all this time, he’ll give you the time of day. After all, he’s moved on. He’s got a new abusive relationship.

Sheesh, what’s with no copy of the lease? These days it’s easy to scan your lease as a pdf if you don’t want to carry around the extra paper. Do you have a canceled check to prove that you paid a security deposit? Did you take photos of the place when you moved out? Did you request a final walkthrough with the landlord?

First, you should gather together every possible piece of evidence to prove that your landlord absconded with your security deposit. Then take your evidence to the San Francisco Tenants Union, the Housing Rights Committeeor any other tenants rights organization and ask them if they think you can prove your case.

Next, you need to become familiar with California Civil Code §1950.5. It provides, among other things, that a landlord who wrongfully withholds a security deposit can be liable for up two times the amount of the deposit in statutory damages. In other words, if the landlord wrongfully withheld your entire deposit you should ask the court for three times the amount.

Pick up a copy of Everybody’s Guide to Small Claims Court in California, by Ralph Warner for Nolo Press.

There are many online articles about recovering your security deposit. The security deposit section at Cal Tenant Law is instructive.The Tenants Union also provides good information.I have also written a blog post, Grand Theft Security Deposit.

I can’t stress this enough: Phone calls never, ever convince a landlord to refund a security deposit. To wait six months and think you might not have to sue is simply wishin’ and hopin’ and thinkin’ and prayin’. Get on it!

How to help Dave 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 [email protected]

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.

 

Tenant Troubles: Can I get in trouble for breaking a lease?

I’m finding myself in the position of looking for an apt for the first time in a long time. I thought I ought to check some things out with you. 

What’s the deal with lease terms? If you sign a 12-month lease and you end up breaking it, can the LL really enforce? Have you heard of tenants actually getting in trouble for a breaking a lease? Also, is there any actual advantage for a tenant in signing a long term, fixed lease under rent control? They can’t legally evict or increase your rent whether you’ve signed a lease or not, no? 

Thanks for your help and any other insight or pitfalls I should look out for.

What’s the deal with with lease terms? As an attorney, I will tell you that the terms of the lease comprise the contract you have with the landlord to live in or use a given apartment, house or business space. They define your duties and obligations to the landlord, but in residential situations they rarely set out the landlord’s duties and obligations to you. That’s why the courts have developed various doctrines like theimpliedwarranty of habitability and the impliedcovenant of quiet enjoyment.

In most cases, especially in cities, the competition for apartments is so keen that most tenants, when they find a suitable deal, will sign a lease based solely upon the amenities of the unit and the price of the rent they will paying. If a tenant is uncomfortable with other terms buried in a a lease, he or she will usually acquiesce to them because the amenities are acceptable and the price is right—like clicking the button agreeing to terms when one buys something online or accepting new Facebook terms. In other words, as in the law, leases heavily favor the landlord in the landlord/tenant relationship, based upon medieval practice from over 1000 years ago.

Do tenants actually get in trouble for breaking a lease?

If you sign a year lease and you want to, or have to move early, you will be breaking the lease, legally speaking, breaching the lease, because you promised to stay for a year and you want to break that promise.

As with any contract, the breaching party may be liable for damages to the “injured” party.  To calculate the damages for breach the courts will apply a formula: A tenant will be liable for every month left in the lease that the landlord cannot rent the unit. Most landlords stop right there in the analysis. But under Civil Code § 1951.2(c)(2)the lessor (landlord) must “proves that in reletting the property he acted reasonably and in a good-faith effort to mitigate the damages.”  To mitigate (lessen) his damages, a landlord must diligently attempt to re-rent the unit as quickly as possible after the tenant vacates at a rent that is as close to the same amount for which the tenant contracted.

Yes, tenants can get into legal trouble for breaking a lease, if the landlord sues for damages. If you signed a year lease and you want to move after six months, the landlord has an expectation that he would receive the same rent as you pay for the next six months. These are called “expectation damages.” He must mitigate those damages by renting the unit for the same amount as you were paying, not more. If the landlord can only rent the place for $100.00 less than you paid, he would incur $600.00 in expectation damages and you would be liable for those damages. The landlord might also incur costs to re-rent the unit, like advertising, or reasonable payment to a rental agent or expenses incurred in re-keying a unit, etc. You may be liable for those costs, if the landlord can prove he spent the dough.

Often a landlord, to his financial detriment, will attempt to re-rent a unit for a much higher price or refuse to attempt to re-rent a unit at all, basically refusing to mitigate his damages. Or the landlord will attempt to make the tenant responsible for re-renting the unit, demanding that the tenant continue to pay rent until he or she finds an acceptable new tenant.

If you are simply breaking the lease because you want to move, you should simply give the landlord a 30-day notice to terminate the tenancy. If you want to obtain evidence that the landlord failed to mitigate his damages, you may want to advertise the unit on craigslist or another popular site for rentals and refer the applicants to the landlord to “help him out.”

You should notcontinue to reside in the unit after the thirty days have expired, as many landlords will demand, simply because the landlord refuses to get off of his ass to attempt to re-rent the place. Landlords may think they own you, but last time I looked, the 13th Amendment to the constitution was still (if only barely) in effect.

What about lease termination fees in a term lease?

If the lease contains an early termination fee—a fee (often amounting to two months rent or more) to reimburse the landlord for breach damages—you can attempt to negotiate the fee down, pointing out that it will not take the landlord two months (or whatever the fee amount equals in rental weeks/months) to re-rent the unit. Also remind the landlord that that if you pay the fee and he re-rents immediately, he could be unjustly enriched. You may also want to include the fact that your security deposit should cover the damages.

If you don’t want the added hassle of a landlord’s potential lawsuit to collect the fee, sometimes it’s just better to pay it and move on—more unfair, unearned income for landlords.

By the way, if you move early, the landlord will never, ever refund your security deposit, despite the fact that you left the place in pristine condition, which you should always do, if you’re gearing for a fight later on.

If you’re adventurous and you think you may have to sue the landlord for the security deposit anyway, here’s a theory that early termination fees may be illegal. Don’t use this unless you’ve consulted with an attorney!

Early termination fees are liquidated damages, damages that the landlord in this case, suffers because you terminated the lease before it expired. Liquidated damages are legally defined as “difficult to quantify.” The landlord and tenant can agree to an amount that will compensate the landlord for his damages ahead of time. When the fee is paid, the damages are liquidated (concluded, finished, paid.)

Civil Code §1671 deals with with the validity of liquidates damages provision in a contract. Section 1671(c)(2) provides:

The validity of a liquidated damages provision shall be determined under subdivision (d) and not under subdivision (b) where the liquidated damages are sought to be recovered from […] [a] party to a lease of real property for use as a dwelling by the party or those dependent upon the party for support.

Section 1671(d):

In the cases described in subdivision (c), a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.

Check your lease, if there is no provision in which you agree that “the amount which shall be presumed to be the amount of damage sustained by a breach thereof” or similar language, then the early termination fee clause could be void.

Many leases, however, have such language. However, damages for breach can be easily determined using the calculation above. If the landlord mitigates his damages by, for example, renting the unit for $100.00 less, there’s no way to justify a two month early termination fee.

As I said before, don’t try this without running it by a lawyer with your specific circumstances!

Is there any actual advantage for a tenant in signing a long term, fixed lease under rent control?

Yes, there may be an advantage to signing a long-term lease, a lease for more than a year, even in a rent-controlled jurisdiction. A term lease, for whatever the term, protects you from rent increases and other just cause evictions like the Ellis Act. Remember, all “no-fault” evictions in either state law or rent-controlled jurisdictions like San Francisco or Santa Monica or Los Angeles apply to month-to-month tenancies. Why, because a landlord will be in breach of a term lease if he attempts to change the terms, increase the rent or evict you for something other that your breach of the lease—no owner move-in, no Ellis Act, without the landlord risking heavy liability.

For further reading on this take a look at  my article, “My Neighborhood’s Too Dangerous, Can I Break My Lease?”and “Breaking Your Lease,”by Ken Carlson.

How to help Dave 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 [email protected]

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.