Question 1: I manage a SFR in a quiet neighborhood with multi-generational tenants listed on the lease. The adult son is causing domestic issues, and the police have been called to the house multiple times, often resulting in his arrest. Even the parents have asked me for help in having him removed from the lease, but they want to stay. The local police department has just informed us of the problems, and neighbors are now complaining to the owners as well. They are in month eight of a 12-month lease. The owners want the tenant out ASAP, even if that means terminating the lease for all the tenants. What are my options and obligations? Our lease agreement has a nuisance clause. Would this classify as a nuisance, and be considered an incurable breach? Thanks.

Answer 1: From your description, the tenants are likely subject to a three day notice to quit based on nuisance or breach of lease. However, your clients might consider extending to the parents the opportunity to request a restraining order prohibiting the adult son from coming in the vicinity of the home. If they did and it was issued, and the son did not violate it, then the neighbors would be satisfied, the parents could stay through the lease term and the dislocation to all concerned could be minimized. But again, a three day notice to quit is probably a viable option. 

 

Question 2: Can I reject a Section 8 applicant just based on the Section 8 program part?
Answer 2: Not in certain cities you can’t. A recent California appellate case –City and County of San Francisco v. Post, 2018 Cal. App. LEXIS 312– answers a major question that attorneys and landlords have wondered about since the passage of a San Francisco Police code section in 1998 that prohibits landlords from rejecting a Section 8 applicant solely on the basis of being a Section 8 recipient.  Attorneys for landlords have continuously argued that the police code –  S.F. Police Code §3304(a) – (and the recently enacted Berkeley  version), were preempted by state law, under a provision of the state’s Fair Employment and Housing Act (FEHA), which was passed in 1999 to prohibit discrimination based on a tenant’s “source of income.”

But the Legislature defined the term ‘source of income’ narrowly, so that it did not reach government rent subsidies such as Section 8. (Gov. Code, § 12955, subd. (a).) FEHA expressly declined to add Section 8 to ‘source of income’ discrimination law. However, the Post case now makes clear that local laws such as the SF Police Code and Berkeley’s similar ordinance are NOT preempted by the state law (nor, apparently, by federal law from which the Section 8 program originates). This means that if the rental unit is in one of the cities that have such a local ordinance (such as San Francisco and Berkeley) landlords may NOT reject an applicant solely for being a Section 8 recipient and apartment marketing materials for such units that specifically state ‘No Section 8…’ should be immediately removed. Section 8 applicants in such cities must, in other words, be evaluated for an available unit the same as any other applicant.

It is important to note that the Post case applies statewide, but only to preserve local laws that have source of income discrimination laws like those in SF or Berkeley. There remains NO statewide requirement that lessors consider Section 8 applicants beyond what existed before, which was limited to tenants who requested a reasonable accommodation based on disability.

For your reference, a pertinent excerpt of the Berkeley law is set forth below.

Section 13.31. 20 Discrimination based on source of income prohibited.

It shall be unlawful for any person offering for rent or lease, renting, leasing, or listing any housing accommodation or any authorized agent or employee of such person, to do or attempt to do any of the following:

A. Refuse to rent or lease a housing accommodation, or access to or use of the common areas and facilities of the housing accommodation, serve a notice of termination of tenancy, commence an unlawful detainer action, or otherwise deny to or withhold from any person or persons, a housing accommodation on the basis of source of income;

B. Represent to any person, on the basis of source of income, that a housing accommodation is not available for inspection or rental when such housing accommodation is in fact available for inspection or rental, or to require different terms for such transactions on the basis of source of income;

C. Make, print, or publish, or cause to be made, printed, or published any notice, statement, sign, advertisement, application, or contract with regard to a housing accommodation offered by that person that indicates any preference, limitation, or discrimination with respect to source of income; or

D. To use a financial or income standard for rental housing that:

  • Privileges income earned directly by the tenant or prospective tenant, or rental

payments made directly by the tenant or prospective tenant over housing assistance.

  • Discounts or discriminates against housing assistance payments.
  • Fails to account for the aggregate income of persons residing together or proposing

to reside together or an aggregate income of tenants or prospective tenants and their

cosigners or proposed cosigners on the same basis as the aggregate income of married

persons residing together or proposing to reside together.

E. Criminal Penalty

Any person who violates any provision of this chapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail for a period not exceeding six months, or both.

 

Question 3: What is the owner’s obligation regarding installing an electric car charger at the residence? Is the owner responsible for the full cost? The tenant is requesting the installation of the charger.
Answer 3:  Beginning in 2015, tenants have had the right – in certain tenancies and with significant exceptions and restrictions – to install an electric vehicle charging station in the lessor’s parking area. The law applies to both residential and commercial leases signed, renewed or extended on or after July 1, 2015. Both residential and commercial provisions give tenants the right to install electric vehicle charging stations at their home or business if the tenant is willing to pay for the installation and complies with the lease provisions regarding alterations.  The tenant is required to have at least $1,000,000.00 in liability insurance.

There are various exceptions to the law, including an exemption for rent controlled housing, and parking areas under six spaces. The law applies to commercial and residential rental properties where off-street parking is provided in the lease, with more than five parking spaces, and where electrical vehicle outlets number less than 10% of the parking spaces. The tenant is required to pay the cost associated with the electric usage of the charging station. The landlord is not required to provide the tenant with an additional parking space in order to comply with this law. This law does not apply: (1) when parking is not included as part of the rental contract; (2) to properties with fewer than five parking spaces; (3) to properties subject to rent control; (4) when 10% or more of existing spaces already have electric vehicle charging stations.

 

Question 4: I filed an Unlawful Detainer case, and had the tenant’s default entered. I want possession ASAP, but I also want a money judgment. Can I file for a Clerk’s Judgment for Possession only, and after the Tenant moves, file for a Court Judgment for money in the same action? Can I also ask for damages to the property, or just the rent up to the date they moved?
Answer 4: As possession of the premises is usually the owner’s top priority, with the unpaid rent or daily rental value a close second, in UD cases, the courts allow a two-part judgment procedure. The court clerk is authorized to issue a default judgment for possession immediately upon the tenants’ default and the landlord/plaintiff’s request. Then, upon a request for amended judgment after the writ of possession is executed by the sheriff, the judge will issue a money judgment for the back rent and court costs.

However, the court will only issue judgment for the money owed for rent and per diem rental damages, and the costs of any damage to the unit will need to be submitted in a separate (often small claims) case.

 

Question 5: I was recently successful in an eviction proceeding in Alameda County. Can you tell me how to assure that this action appears on the tenant’s credit report?
Answer 5:  I am not sure what you can do to insure the judgment appears on the tenant’s credit history other than contacting the three major credit reporting agencies and asking them. Generally, they will pick such judgments up as a matter of course.

 

Question 6: What is the maximum occupancy I can allow for a San Francisco in-law unit? If it’s a one bedroom does the same apply for the fair housing rule or can I allow three people for studio including a newborn.
Answer 6: Even if the in-law is an illegal unit, the same occupancy rules would apply as to a regular unit (the “two plus one rule – two persons per bedroom plus one more person, so two per studio, three per one-bedroom, five per two-bedroom and so on). And minors do not count under the San Francisco building and planning codes under the occupancy limitation rules.

 

Question 7: Many managers’ policy is to not take the time to generate a written move-in inspection with the tenant that is signed by the tenant just before possession. Instead, those managers instruct the tenant to write-up and mail in a list of defects the tenant may claim to have found within a few days of moving in. The idea is that if the tenant doesn’t send in a list that proves the place was perfect.

Later, however, after the tenant has left, when it comes to security deposit deductions, the law places the burden of proof on the landlord to show how clean and defect-free the dwelling was when the tenant moved-in, as compared to when the tenant left.

The problem I see, is that those managers are in effect trying to shift the burden of proof to the tenant; it’s not the tenant’s responsibility to generate a move-in inspection that will be needed later to show the reasonableness of security deductions that the landlord made. The tenant can’t waive that burden of proof. So if the tenant never bothered to write up and send a move-in inspection to landlord, it’s the landlord’s problem to try to prove damages without one.
Answer 7: Despite the absence of an obvious question, you make a good point. It is incumbent on the landlord to establish the condition of the unit when the tenant takes possession, and one good – probably the best – way to do that is a walkthrough with the tenant before the lease term starts, to get the tenant to sign the inspection sheet confirming that the premises are in good condition and all systems are operable.

 

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.