Question 1: When is a pet not a service animal? How do I verify that I can’t charge more for the pet?
Answer 1: A service animal means any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability. Tasks performed can include, among other things, pulling a wheelchair, retrieving dropped items, alerting a person to a sound, reminding a person to take medication, or pressing an elevator button.

Emotional support animals, comfort animals, and therapy dogs are not ‘service animals’. Other species of animals, whether wild or domestic, trained or untrained, are not considered service animals either. The work or tasks performed by a service animal must be directly related to the individual’s disability. It does not matter if a person has a note from a doctor that states that the person has a disability and needs to have the animal for emotional support. A doctor’s letter does not turn an animal into a service animal.

A ‘comfort’ animal, in contrast, is one that provides a ‘lesser’ level of assistance, and comes under the ‘reasonable accommodation’ laws for persons with a disability. Unless the tenant requests a reasonable accommodation due to a disability, the pet is just a pet and you can charge more or require additional security deposit up to the otherwise legal limit of two times the monthly rent (assuming your lease prohibits pets).

A landlord or homeowner’s association may not ask a housing applicant about the existence, nature, and extent of his or her disability. However, an individual with a disability who requests a reasonable accommodation may be asked to provide documentation so that the landlord or homeowner’s association can properly review the accommodation request. They can ask a person to certify, in writing, (1) that the tenant or a member of his or her family is a person with a disability; (2) the need for the animal to assist the person with that specific disability; and (3) that the animal actually assists the person with a disability.

If the animal is a service animal, no extra charge is allowed for rent or security or pet deposit. For ‘comfort’ animals, the situation is not as clear, but I recommend to my clients not seeking additional charges, whether in rent or deposit.

Question 2: My rental house had interior damage from a fire. My tenants have to evacuate from the house for 11 days. They are allowed to go back in to pick up few of their items. I want to move them out so we can fix it. We need access to the house to remove smoke damage. What is the proper way to remove tenants so we can do the necessary work? Do we give them 60-day notice to terminate tenancy? They can’t live there in this present condition.
Answer 2: Normally, a 30 or 60 day notice is required to compel a tenant to vacate, for whatever reason. However, if the home is not habitable, it can be ‘red tagged’ by the building or health department, requiring the tenants to vacate immediately. It is not clear which category your property would fall into. The next question is whether you intend to allow the tenants to return once the work is done, and whether they intend to return if that is an option. Also, depending on where and when the fire was, there may be emergency legislation or local ordinances affecting the tenancy situation, including the otherwise existing right to terminate the tenancy to do the repairs. As is often the case, an attempt to meet and discuss with the tenants a solution that works as well as possible for both sides would be a good place to start, and also to contact local housing agencies if there is the possibility that any emergency laws apply. Eventually, you may need to consult with competent counsel.

Question 3: In the past, it has been a general policy that our property owners pay for chimney cleanings at their rental units when a cleaning is necessary. It has always been considered the owner’s responsibility as it is considered to be protecting their income property. We now have an issue, as one of our owners wants the chimney cleaned at the rental unit at the tenant’s expense. She is insisting it be done by a vendor of her choosing and insisting the tenant pay the bill. Our tenant claims he does not use the fireplace and there is no need to clean it.

Can the tenant be required to pay for this cleaning even if he says the fireplace has not been used? If he can be required to have the service and pay for it, can he insist on using someone of his own choosing? Can he clean it himself? As always, your assistance is greatly appreciated.
Answer 3: If the tenant does not use the fireplace, and absent a lease provision to the contrary, there is no situation in which the tenant is obligated to pay to clean it. Even if the tenant used it daily, responsibility for the chimney is still the owner’s, who has duty to insure the chimney is safe, which would include necessary cleanings.

Question 4: When I return a security deposit, do I owe interest? If so, at what rate?
Answer 4: State law does not require interest on deposits, so, the answer would be – nothing. However, if your tenant occupies a unit in certain rent controlled cities like San Francisco, local law may impose an interest obligation on security deposits. For example, in San Francisco, Chapter 49 of the San Francisco Administrative Code requires landlords to pay interest annually on deposits held on residential property. Landlords are required to pay interest on all monies held over one year, regardless of what the deposit is called. Interest payments apply to all residential rental units in San Francisco, including those exempt from the Rent Ordinance, with one exception: where the rent for the unit is assisted or subsidized by a government agency, the interest payment requirement does not apply.

Interest must be paid every year on the tenant’s “annual due date. The annual due date is the same day and month the landlord received the deposit from the tenant.

The rate of interest owed on deposits for the period March 1, 2017 through February 28, 2018 is 0.6%. The new rate is published annually by the Rent Board in early January for the one-year period beginning March 1st and is based on prevailing interest rates.

Question 5: Are existing lease agreements valid if the property is sold?
Answer 5: Yes, existing rental agreements continue with the new owner. The concept is usually formally referred to as “Attornment.”

Question 6: We have a case where the neighbors are concerned because they asked the property owner to take care of and maintain the property while he is evicting a very bad tenant. The question we have is: is it true that a property owner is not responsible for the up-keep of the property during the eviction process?
Answer 6: No, that is not true. A property owner is generally the person responsible for maintaining their property, though that duty can sometimes be delegated to another, such as a tenant. But as to third parties such as neighbors, the owner remains the person of ‘last resort’ who can be held responsible for allowing the property to become a hazard etc. This duty extends through any eviction proceeding the owner may be involved in with his or her tenant.

Question 7: My tenant sent me a partial rent payment, and still owes about $200.00. I told him to pay the rest by a certain date. When can I give him a three day notice? Can I give them a change of term to make sure he pays rent on time? I know in Oakland I can’t evict because of frequent late rent payment. This tenant always pays rent late and never pays the late fees.
Answer 7:  Generally, you can serve a three day notice to pay or quit anytime the tenant is late paying the rent. However, if you offered or agreed to extend the payment date, you would likely be bound by that offer or agreement.

The Oakland ‘just cause’ law (Measure EE, or the Just Cause for Eviction Ordinance) does not include a provision for habitual late rent payments as a termination ground, unlike the San Francisco version of that law. However, if your rental agreement is month to month, it is possible you can serve the tenant a notice of change of terms of tenancy to include a provision that late payment of rent more than three times in any 12 month period is a material and non-curable lease breach, and that may allow for a termination of the tenancy under the Measure EE provision for breach of lease. However, that provision also requires giving the tenant the option to cure, so it is not clear if a lease provision making non-payment of rent a non-curable breach would be successful (assuming the tenant cured the payment default each time he was given the notice). But it seems to be about the only option available.

As to late fees, if the lease was carefully drafted to comply with the current case law on enforcing late fees, the tenant’s failure to pay the late fee on a three day notice might support an eviction. But case law shows how a court would treat a claim for eviction based on late fees, and it is not an easy case to make for the landlord to make.

Question 8: I read your Q & A section of the AOA magazine and find the information very helpful.  I was wondering if you might answer a question regarding a security deposit for a commercial warehouse property I rented for my business on a month-to month basis for a little more than nine years.  The property ownership changed hands about 4 years ago.  I recently retired in October and mentioned the security deposit (it was only $1000) to the property manager, of which he was aware.  I gave the property manager my forwarding address before the end of my tenancy.  I know that the residential security deposit must be addressed within 21 days after the tenancy expires.  I haven’t been able to find any information for the deposit for a commercial property and I haven’t received any explanation regarding my deposit.  It’s been almost 60 days since I vacated the property. Can you answer the question regarding the rules for this?
Answer 8: California Civil Code § 1950.7 governs your commercial security deposit, and the owner has 30 days to account for it once you depart. There is a maximum $200 penalty for bad faith refusal to return any balance remaining of the deposit.

Question 9: Currently on a 12-month lease agreement, we charge first month’s rent, security deposits, and final month’s rent. Following is the sentence on our agreement regarding security deposits
“The maximum amount Lessor may receive as security deposit however designated cannot exceed two months’ rent for unfurnished premises or three months’ rent for furnished premises.”

We have an owner who is concerned that by collecting all three amounts we are doing something inappropriate. Can you confirm that the amounts we are collecting are appropriate?
Answer 9: Calling a payment ‘last month’s rent’ does not remove it from the two-three month limit on Security Deposits, and in fact eliminates it from being used as part of the security deposit, since the tenant may apply it to the last month’s rent, leaving only one month’s rent as true security. So, if you collect two months’ rent as ‘security deposit’ and a ‘last month’s rent’ on an unfurnished apartment, you would be exceeding the maximum amount that may be requested from the tenant. There is, generally speaking, no benefit to the property owner to request or demand a ‘last month’s rent, as opposed to a true security deposit.

 

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 415-871-0070; email rbeckman@bfc-legal.com or by visiting the website www.bfc-legal.com