Below are questions asked by rental property owners regarding California rent control laws followed by answers provided by Attorney Richard Beckman.
Question One: Tenant did not pay rent due by the third of the month, so I ‘nailed & mailed’ the three day notice to pay or quit, and a Notice of Belief of Abandonment (NBA) on the 7th, with termination date of the 24th on the NBA. On the 17th, I confirmed with the tenant via phone that they’ve vacated, but she wishes to retrieve a few more belongings before relinquishing the keys to a trusted neighbor. (which I okayed with the neighbor). After several phone discussions with and failed promises from the tenant, the keys have yet to be relinquished. Question: May I terminate as scheduled on the 24th?
Answer One: The rules regarding belief of abandonment state that the owner must reasonably believe that the tenant has in fact abandoned the premises, generally by not responding to the Notice Of Belief Of Abandonment. Ideally, a tenant who receives such notice would confirm that they have in fact vacated the premises and the owner can retake possession. Your situation seems to fall somewhere in between. I think I would play it out, and let the tenant know that until she formally returns possession by relinquishing the keys, she continues to be responsible for rent. That might incentivize her to make it official in terms of returning possession to you by giving you or the neighbors the keys. It sounds as if she wants to retain possession so that she can be sure she can remove her belongings as she chooses, but you could also let her know that if she wants to stop the accrual of rent (though she likely owes for the entire month of September), you will work with her to let her remove her belongings in a reasonable manner. But I would be cautious about changing the locks, etc. on the 24th without confirmation from the tenant that she has ‘abandoned’ the unit. ‘Self help’ can provide the tenant with a legal ground to claim damages for a violation of the rules against such efforts.
Question Two: Have the supervisors passed the Just Cause Ordinance covering unincorporated parts of Alameda County?
Answer Two: Good question, and apparently, not as yet. Eventually, one assumes, the Board will have that hearing. As of the last effort, the five member board was split 2-2, with one Supervisor abstaining. It’s possible that will be the result of the next hearing as well.
Question Three: I own a home in San Francisco that is under Costa Hawkins protection (meaning it’s exempt from rent, but not eviction control). I failed to serve notice to my longtime tenant about the AB1482 exemption. I sent an addendum in June of this year but the tenant refused to sign it and said I cannot claim the exemption for my house because I did not serve notice by August 1, 2020. Is this correct? Am I now under AB1482? If so, I can still raise the rent 8.8%. The rent has not been raised in 5 years. Does AB 1482 supersede Costa Hawkins? Thank you!
Answer Three: First, your property is subject to the San Francisco Rent Stabilization and Arbitration Ordinance, not AB 1482. AB 1482 limits its application to properties that were not already subject to a local ‘just cause’ ordinance when it passed in 2019. Thus, per Costa Hawkins, you are exempt from ‘rent’ control (subject to that law’s limited exceptions) but subject to the local ‘just cause’ eviction aspect. (There is some ‘noise’ from the SF rent board that because single family homes are exempt from local rent control via the Costa Hawkins Act, that makes them subject to AB 1482. I have never seen a judicial ruling on that issue, but believe that position is wrong, due to the clear language of AB 1482).
If you were not in a local rent control city, however, I don’t believe, based on my interpretation of AB 1482, that failing to provide specific notice to the tenant prior to the August 2020 ‘deadline’ precludes you from claiming the exemption, as a single family home, from AB 1482’s rent and eviction control provisions. If the tenant wanted to contest it, I suppose that’s what the rent board is for. But again, AB 1482 simply does not apply, so I don’t think the exemption matters.
It is worth noting that AB1482’s rent increase allowances are relatively generous compared to the local version. However, there’s no question that being exempt from local rent control, and statewide rent and eviction control, is a benefit to the owner.
Question Four: I inherited a multi-unit San Francisco apartment building in which the previous owner made kitchen and bathroom improvements without getting the proper permits. A long-time tenant in the building, whose unit has never been remodeled, complained to the Department of Building Inspection (DBI). Together this tenant and the inspector peeked through the back window of one of the occupied remodeled units. The inspector then sends me a notice of violation to obtain a building permit, without citing any specific units. How can I mitigate the penalties? Is it legal for DBI to peek into the unit without obtaining permission to enter the unit? Do they have an inherent right to inspect any unit, or do they need probable cause?
Answer Four: I guess we should start with the good news, which is that you inherited a San Francisco apartment building. That is generally considered a good thing, although of course it does implicate a sad event for somebody. At any rate, my recommendation would be to get the necessary permits so that your building is ‘legal’. Any other status puts you in jeopardy in terms of tenants deciding to refuse to pay rent, etc, and they may have a valid argument in not doing so.
As for the DBI’s rights of inspection, the agency can compel entry. SF Housing Code provides at Section 201:
Right of Entry. Upon showing proper credentials, which shall include a statement apprising an owner or occupant of his rights and obligations, authorized employees of City departments, when necessary for the performance of their duties, shall have the right to enter at reasonable times any new or unoccupied building and any building under construction, repair, alteration or removal and any other building when there is reasonable ground for believing said building or any part thereof to be illegal, unsafe or a menace to life or limb; or in making their routine inspections as required under the License Code. The procedures provided by the general laws of the State of California, presently codified as Sections 1822.50 to 1822.57, inclusive, of the Code of Civil Procedure (CCP), shall govern the issuance, execution and enforcement of an inspection warrant in the event the owner or occupant of a building refuses to permit an inspection thereof by an authorized employee of a City department.
The referenced CCP sections allow a government agency to seek a court order allowing entry if the owner refuses to grant permission. California Code, Code of Civil Procedure – CCP § 1822.51 provided that “An inspection warrant shall be issued upon cause, unless some other provision of state or federal law makes another standard applicable. An inspection warrant shall be supported by an affidavit, particularly describing the place, dwelling, structure, premises, or vehicle to be inspected and the purpose for which the inspection is made. In addition, the affidavit shall contain either a statement that consent to inspect has been sought and refused or facts or circumstances reasonably justifying the failure to seek such consent.
Question Five: I manage a duplex where one of the tenants has been given a termination notice (for family member move in). The tenant is 8 months into their 12 month lease. The owner is expecting to give them the last month’s rent free for the “just cause” eviction (per AB 1482). If the tenant decides that they want to leave early and gives the owner a 30-day notice and the owner agrees, is the owner still obligated to give the tenant their last month free?
Answer Five: I assume the notice to the tenants is to take effect after the lease expires, as an ‘owner move in’ is not grounds to terminate the lease term early. Assuming that to be the case, the primary issue is whether the tenants are subject to the state Tenant Protection Act (TPA, aka AB 1482)). It only applies where the tenants have been in possession at least 12 months. There is some uncertainty whether tenants under a one-year lease can be evicted at the expiration of the lease, by being notified that the lease will not be renewed. If that one-year tenancy triggers the TPA, then a ‘just cause’ ground (such as owner move in) is required. It may be a wiser move to make the lease less than one year for that reason. But note some local ordinances require the owner to offer the tenant a one year lease.
If the tenants decide to vacate early, after being served an ‘owner move in’ notice compliant with the TPA, it is also not clear there is any obligation to pay the one month’s rent called for under the TPA. And of course if the TPA does not apply, as discussed above, there would be no obligation to offer that amount anyway.
However, the prudent course probably is to consider the one-year tenancy resulting in the tenant being subject to the TPA, and a proper notice terminating the tenancy for owner move in, along with the offer of waiving the last month’s rent would be the safer approach. If the tenants elect to move before the notice expires, honoring the rent waiver offer is probably the better course.
Question Six: I have a tenant who chronically bounces rent checks. She is on a month-to-month rental agreement. She refuses to pay by electronic methods (Venmo, PayPal, Zelle, etc) because she uses bounced checks as a means to pay late every 2 or 3 months. Can I legally change the terms of her lease requiring her to pay rent by cashiers check or money order and refusing personal checks?
Answer Six: A month-to-month tenancy can be changed by serving a 30 day Notice Of Change In Terms Of Tenancy. As your options include two methods in addition to electronic payment (money order and cashier’s check), you may simply issue the 30 day Notice of Change in Terms including those methods and excluding personal checks.
Question Seven: My apartment complex is located in Lake County California. Concerning charging for pet deposits, pet rents, and allowing type of pet and size, what is the current law for this area?
Answer Seven: The primary aspect involves the amount of security deposit you can charge, which, as of July of this year, is limited to the equivalent of one month’s rent, regardless of whether you categorize it as a pet deposit, etc. The new law applies to furnished and unfurnished rental units leased by all but the smallest landlords. To be considered exempt from the new security deposit limits, you must:
Own no more than two residential rental properties consisting (collectively) of no more than four rental units in total, and be a sole proprietor or an LLC that is not owned by a corporation or another LLC. This means that the new law will not apply to landlords who only have one or two properties, and have no more than four residential rental units in total.
There is no restriction on what pets may be allowed, other than limits imposed on having exotic animals. You may also prohibit pets of any kind, subject to rules related to emotional support or service animals.
Question Eight: We used a leasing company for placement and just found out that the tenant checked non-smoker on the application. Between lying on the application and violating the lease by smoking on the premises, can we give her a 3-day notice to move out? She moved in at the beginning of last month. We left our home furnished and are concerned about the smoke damage to the furniture and completely remodeled home.
Answer Eight: Perhaps your leasing agent can assist as they placed her. While it may be possible to terminate the lease based on the misleading application (though that is probably a challenging argument), you can require her to cease smoking or risk being evicted. Smoking is a ‘curable’ violation so would require a three-day Notice to Cure the Violation (stop smoking) under AB 1482, followed by a three-day Notice to Quit if she continued to smoke, followed by the unlawful detainer action.
Richard Beckman, of Beckman, Feller & Chang P.C., has been practicing landlord-tenant law for over 26 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 510-548-7474; email [email protected] or by visiting the website www.bfc-legal.com.