This article was posted on Sunday, Jun 01, 2014

Question 1: What do I do with a tenant who demands too many things? After moving in March 1, 2014, he complained about cobwebs in closets. We sent cleaning people and took care of that complaint. Then he complained that the light bulbs in the unit are not energy saving models and that we should replace them. We have not done so. Can we ask him to break the lease and move? If so, can we still collect the rent??
Answer 1: If you have a tenant who is simply ‘whiny’ and more trouble to deal with than he or she is worth as a tenant, and the tenancy is month-to-month, (rather than a term rental period such as. a one year lease), you can terminate the tenancy by providing the proper notice, but you run the risk the tenant will claim retaliation. Your situation is actually quite tricky, since if a tenant gets a termination notice after making complaints about the premises, the tenant can almost automatically claim retaliation. The governing statute – Civil Code Section 1942.5 – is very broad. I reprint part of it below.

If their claims are for minor inconveniences, the claim of retaliation would likely fail, but you would still have to prove that the termination was not retaliatory if the tenant raised retaliation, which can present a significant burden. I have previously dealt with this subject, and suggested to the prior question writer that she carefully document the tenant’s complaints, and her response, and the existence or non-existence of the defect or problem being complained about.

However, if the tenant is on a term lease, it would be difficult to evict them merely for complaining, and so you probably just have to ‘put up with it’ unless it reaches ridiculous levels (e.g. calling every day about repeat minor problems, harassing you over such things, making you send repairpersons out when nothing is wrong etc). In that case, you would seek to terminate based on nuisance, most likely, and if you were successful, you would be able to claim the lost rent.

1942.5.  (a) If the lessor retaliates against the lessee because of the exercise by the lessee of his rights under this chapter or because of his complaint to an appropriate agency as to tenantability of a dwelling, and if the lessee of a dwelling is not in default as to the  payment of his rent, the lessor may not recover possession of a dwelling in any action or proceeding, cause the lessee to quit involuntarily, increase the rent, or decrease any services within 180 days of any of the following:  (1) After the date upon which the lessee, in good faith, has given notice pursuant to Section 1942, or has made an oral complaint to the lessor regarding tenantability.  (2) After the date upon which the lessee, in good faith, has filed a written complaint, or an oral complaint which is registered or otherwise recorded in writing, with an appropriate agency, of which the lessor has notice, for the purpose of obtaining correction of a condition relating to tenantability.  (3) After the date of an inspection or issuance of a citation, resulting from a complaint described in paragraph (2) of which the lessor did not have notice.  (4) After the filing of appropriate documents commencing a judicial or arbitration proceeding involving the issue of tenantability.  (5) After entry of judgment or the signing of an arbitration award, if any, when in the judicial proceeding or arbitration the issue of tenantability is determined adversely to the lessor. (c) It is unlawful for a lessor to increase rent, decrease services, cause a lessee to quit involuntarily, bring an action to recover possession, or threaten to do any of those acts, for the purpose of retaliating against the lessee because he or she has lawfully organized or participated in a lessees’ association or an organization advocating lessees’ rights or has lawfully and peaceably exercised any rights under the law. In an action brought by or against the lessee pursuant to this subdivision, the lessee shall bear the burden of producing evidence that the lessor’s conduct was, in fact, retaliatory.

Question 2: I have a duplex in Oakland, and have an agreement with one of my tenants to take the garbage cans out to the curb and back each week, for $50 per month. Would this arrangement make them my managers, even if they were not appointed as manager, in civil court?
Secondly, these same tenants were having problems with their neighbors from the next property. The police were involved and the tenants got a ‘stay away’ order against that neighbor (neighbor is apparently slightly off mentally), so my tenants asked if they could act on my behalf to call police if that neighbor trespasses on our property. I said yes and gave them a written letter. Based on the above, should I be worried about the tenants claiming to be my manager and wanting back pay ?
Answer 2: As for paying your tenants a small amount to wheel the garbage cans out once a week and back, I don’t think there is any danger of that simple relationship being deemed a management position. Of course, it is always best to make clear in writing exactly what the terms of any such agreement are, and if you have not done so, you should consider doing so.

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As for the permission to have them act for you in terms of calling the police about the neighbor’s trespass, I would also consider making that ‘authority’ clear by putting it in writing as well (as you may have done with your letter). It is easy enough for an attorney representing tenants, or anyone, to take basic facts and inflate them into a relationship that would pass legal scrutiny at the initial stage of a lawsuit, but the more clearly documented the facts are, the harder it is to sustain such claims upon scrutiny. Also, the better your documentation, the more likely it is an attorney consulting with the tenants will advise the tenants that they ‘have no case.’

Question 3: I have a tenant in myOakland rental that has a hearing issue. He’s been living at the site for about a year now. In the beginning all was well. But in the past four months, he started hearing things and banging on his neighbors’ door, very early in the morning and now every single night between 9-10 pm and disturbing the peace. I’ve talked and also spoken to him a few times and he blames the tenant for his hearing problem and yet he can’t really hear me when I talk to him. The resident manager has tried to talk to him. We’ve even tried calling the police but to no end. He just keeps banging every single night. The tenants are ready to move out but I wish he would leave also. Is there anything that we can do?
Answer 3: The tenant is behaving in a fashion that constitutes a ‘nuisance’ and as such  can be notified that continuing such behavior will result in a notice of termination being served on the tenant in accordance with the Oakland eviction control ordinance and state law. This local process requires that the landlord serve a tenant with a preliminary warning notice, before serving the statutory 3 Day Notice to Quit based on nuisance. Both such notices have to conform to local law however, which means you need to be very familiar with that process before beginning it, or consult with someone who is.

However, apart from the proper legal steps, the tenant may also have certain protections afforded to disabled persons, such as the request that his disability be somehow accommodated by the lessor before he can be evicted. This is a potentially complicated analysis, which generally has to be raised by the tenant as a defense to an eviction effort.

However, in addition to the nuisance tenant’s possible rights as a disabled person, you owe your other tenants a duty to take action when their quiet enjoyment is being violated, such as appears to be happening here. You are, as the saying goes, somewhat ‘between a rock and a hard place.’

You would be wise to seek a detailed legal review of your situation from an experienced attorney before taking any action.

Question 4:     Is there a preprinted standard form that the tenant must give the landlord to notify the landlord they plan on moving out in 60 days? If not, what should the verbiage be?
Answer 4: There is no standard form that communicates the tenant’s notice to the landlord that the tenant will be vacating in 30 or 60 days (they have the option of only providing 30 days’ notice if they wish, even if the landlord has to provide 60 days’ notice to terminate the tenancy). The tenant just notifies the landlord in writing, in plain English (or the language shared by the parties) of the tenant’s surrender date, and that takes care of the necessary notice.  [If the tenant gives you verbal notice, you can give him AOA’s form number 137, Notice of Intent to Vacate, have him complete it and return it to you for your records.]

Question 5:  I am in the process of buying a rental property inOakland. The property currently is tenant occupied. The seller does not provide any information other than an estoppel statement that states the tenant’s name, rent amount, security deposit, and lease expiration date (if applicable), and whether tenant is responsible for utilities. If I were to become the new owner/landlord what are my rights? The problem is that I don’t know the history of these tenants (whether they are current or always late on rent). Could you provide some info as to my rights and what I can and cannot do? Any additional resources that you could refer me to are greatly appreciated.
Answer 5:  Before you commit to purchasing the property, you (or your agent, more likely) should ask the current owner for all information he or she has on the tenant, including rent payment history, trouble with the tenant, rent increase history etc. Your agent should be able to assist you in that regard. While tenants are not always required to provide an estoppels statement (it depends on whether their rental agreement so provides), you are entitled to all material information about the building and its occupants that is known to the seller or the seller’s agent.

As to your rights as the landlord should you purchase the property, that is an entire course! One which, conveniently, you can take through AOA…

But seriously, to be a landlady inOakland, under rent and eviction control laws, you really want to have a thorough understanding of the legal landscape, preferably before you make that commitment.

Question 6:  We have a potential tenant that is a ‘special needs’ person. His affairs are handled by a company. The tenant is able to pay half the rent and the company is willing to pay the other half until a roommate can be located by the company. The tenant’s half comes from The Regional Center of the East Bay. Do we list the tenant and company on the rental agreement or just the tenant?
Answer 6: Your question presents an interesting situation. It brings up issues as to whether you will entering into a separate agreement with the first, ‘special needs’, tenant, and later, the to-be-determined second tenant. This comes into play when one tenant is late on the rent, but the other is not. In typical arrangements, both tenants are equally responsible for the rent, so if one fails to pay, both can be served the three day notice to pay or quit, and both can be evicted if the full amount of the rent is not paid. If you have separate agreements with the tenants, then one’s failure to pay will not implicate the other. I think I would put the tenant on the lease, with an addendum that his share of the rent is paid by whoever is paying his share going forward (the ‘company’ you refer to) and temporarily, one half is coming from the Regional Center, and that when the roommate is located and approved, that person will be added to the lease as a co-tenant, unless the disabled tenant’s company advisors want to have him be a master tenant, who collects rent from the subtenant. The alternative is having the second tenant on the lease as a co-tenant, and both tenants are equally responsible for the rent.

It’s probably a bit more complicated than can adequately be handled by a Q&A response, so you may want to get actual legal counsel before you finalize your agreements.

Question 7: My question is regarding eviction of tenants who have been “renting out” their unit (and living elsewhere) using the website “AirBnB” (have proof printed out from website). Basically, I need to know if we can serve them with a 3-day Notice to Move Out, or if it must be a 30-day Notice. Our building is under S.F. rent control.
Answer 7:  This is much too complicated an issue to be able to provide an answer to your question based on the limited information you provide. Given the significance of such an action as seeking to terminate a rent controlled tenancy based on the ‘hot button’ AirBnB issue, you would be wise to seek a detailed legal review of your situation from an experienced attorney before taking any action. That said, however, and generally speaking, a violation of a lease covenant prohibiting subletting without the lessor’s prior written approval (a common lease covenant) can be enforced by service of a proper three day notice to the tenant, but there are many additional considerations that an experienced attorney would want to consider before recommending that course of action. There are also issues involving violation ofSan Francisco laws against short-term rentals, which might apply as a basis to seek to terminate the tenancy if there is no written lease prohibition against unapproved subletting. However, most tenants who are threatened with eviction for an occasional Air BnB sublet will likely challenge the eviction on the ground that the landlord is primarily motivated by the potential rental income increase a new tenant will provide if the old tenant is evicted – the ‘dominant motive’ defense. It is impossible to predict how such cases might turn out, and again, any such effort by the landlord should only come after the facts have been reviewed by an attorney experienced in those issues.

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 19 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 [email protected] or by visiting the website



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