Question 1: I have a tenant in a Lake County single family residence who is not paying rent. Moreover, the County has posted a notice of abatement citing accumulated household trash and other issues that are causing a health and safety issue. The abatement orders were issued 7/28/20. My understanding of the COVID-19 moratorium is it excludes instances where there is a public health issue. My question is can I bring an eviction action and include in my complaint the health and safety issues as a way to get the court to issue a summons to the defendant before the moratorium sun downs?
Answer 1: All you can do is try, and see what the court does with the application. Your local county superior court will likely have some instructions on its website as to filing the necessary declaration to support the application for that eviction (unlawful detainer) summons and complaint. The worse the situation is, the more inclined the court will be to process that eviction, and so perhaps you can also get a declaration from the county health officer as to the seriousness of the problem. But perhaps the tenant will avoid the issue by curing the required 3-day notice to cure or quit that must be served before the unlawful detainer can be filed. While that may be unlikely, (but it’s been known to happen!) – if you let the tenant know that the issue is serious enough to justify the eviction effort if he or she fails to take action, you might get a positive response.
Question 2: I have a tenant who has occupied a unit for the last 10+ years. I recently found out that he never used it as his primary residence, but has been using it as his office, in case he wants to stay in SF. He has his primary residence in the Central Valley. The entire time he has been subject only to the limited rent increases permitted by the rent board. Based on this, I’d like to raise his rent to market rate which is about double or 2.5 times of what he’s currently paying. Please advise what’s the best approach to do this? Thanks in advance.
Answer 2: While that is undoubtedly an aggravating discovery, you may have a remedy. The San Francisco rent board has a procedure commonly referred to as a Regulation 1.21 petition. The regulation allows an owner to petition the rent board to approve a rental increase to market rate where it can be proved the tenant no longer makes the unit his or her primary residence, and no one else lives there (this is often the more difficult issue, since many tenants will then sublet just to preserve the rental rate. But that is a separate issue). The SF Rent Board has an info sheet on that option, and it may provide all the guidance you need to get started on the petition. It can be found at https://sfrb.org/topic-no-328-121-tenant-occupancy-petitions.
And in case there was any concern that the petition, if approved, would result in a rent increase that was prohibited during the current rent increase moratorium otherwise in effect in San Francisco, any approved rent increase is not subject to the rent increase moratorium in place (currently through August 22).
Question 3: I have a tenant, in my Santa Clara apartment who is leaving; they have not paid full rent for the last three months, and therefore, owe me for these months. As soon as they leave, they are no longer tenants, but they are now debtors to me. Would I be legally able to collect unpaid rent from them immediately?
Answer 3: If the tenants failed to pay because of COVID-19 -related reasons, they are likely protected from collection efforts for the period of 120 days after the Santa Clara county emergency ordinance expires, which has been extended through September 2020. Tenants now have up to six months after the moratorium expires or terminates to repay at least 50% of the past-due rent, and up to 12 months after the moratorium expires or terminates to repay in full the past-due rent.
On March 24, 2020, the County Board of Supervisors enacted a moratorium on “no-fault” evictions and evictions for non-payment of rent for tenants who have incurred substantial income loss and/or substantial out-of-pocket medical expenses as a result of the COVID-19 pandemic. This moratorium applies throughout Santa Clara County, including Cities, and protects both residential as well as small business tenants. So while an eviction is not necessary, I believe the protections against a demand for immediate payment applies, if the tenant’s situation qualifies.
Question 4: I have tenant offering to pay a late charge for a late payment of July rent. May I legally accept it? They are also a month behind from April, which I have let them delay payment on and agreed for them to make payments as soon as possible.
Answer 4: Basically, the various COVID-19 local emergency regulations all prohibit charging a tenant a late fee during the state of emergency, so while they don’t address the tenant offering to pay one, I would guess such a payment would be deemed an excessive payment. Based on that, I would probably decline and let the tenant know you really appreciate their commitment to honoring the lease, but at this time late fees, if associated with any economic impact of the virus (and haven’t we all), are being waived.
Question 5: I own a 4plex in San Jose, CA. My tenants have been staying there for several years. Through the years, some of them changed their cars and I have some difficulty of tracking all of them down for parking accountability issues. One tenant, in particular, is not willing to provide any updates in her car records and her emergency contact person information. I know for a fact that the information she provided from her application is no longer valid. She alleges that right after application she doesn’t have to tell me anything, as it is the tenant’s right to tell or not.
Is there such a code for tenant’s right to tell? What can the landlord do?
Answer 5: There is no ‘code’ for a tenant’s ‘right to tell.’ If the lease has a provision that requires the tenant to provide an’ estoppel statement’ (and most leases do), that can be used to get current information from the tenant, and the tenant risks being in breach of the lease if she refuses. But it is a mystery why the tenant would take such an approach. As for her car records, all you need is the make model and plate number so you know if it is your tenant parking in the space. I strongly recommend just calling the tenant and trying to explain what you are requesting.
If the rental agreement has become a month-to-month version, it can be changed by serving a Notice to Change Terms of Tenancy; which, depending on the local eviction control provisions – could be used to compel the tenant to provide such information, or risk being in breach of the lease. As for emergency contact info, it is to her benefit to have you know that person in case you need it, but even if the lease requires it, I am not sure you can compel her to provide it, for reasons having mostly to do with privacy rights. I am not aware of any published case that has ever considered the issue, so it would fall to a local court to make that determination.
Question 6: Question on how often a landlord can be on the property? My husband and I own an apartment building and have a rather large garden which my husband cares for. He typically visits the property daily either to water, work on the gardens or just looking the garden over. The question is – is it okay for the landlord to be on the premises daily? We do not live on the premises – we live about 20 minutes away,
Answer 6: There is no specific amount of times an owner can be on the rental property. It depends on the reasonable expectation of the tenants, as in a lease provision that the owner will be onsite to take care of the garden regularly, or a simple understanding to that effect by the tenant. But if the tenant was not previously notified or has accepted that provision, and the visits are deemed intrusive in the sense that they provide the owner with access to the tenant’s private outdoor area, or a view into the tenant’s interior that is not available to the public or neighbors, the tenants may object. If so, hopefully the parties can reach a compromise agreement as to the access issue, and not resort to litigation (court proceedings) to settle the matter.
Question 7: How long is the expected life of fresh paint? After just under three years, the tenant with two kids got the walls really dirty. There are child safety latches with double sided tape and pen marks. How much can I charge against the security deposit?
Answer 7: I would contact a professional painter about the anticipated life of an interior painting. Separate from that is the impact of the tenant’s activities on the paint. Normal wear and tear would likely include some impact, though to what degree is somewhat subjective (i.e. one small claims judge might find it normal, and another might not). And some ‘damage’ to the paint (dirty walls comes to mind) might be solved by cleaning (for which you may be able to charge) rather than the much more expensive repainting option.
So, as in many of these situations, seeking some agreed amount with the tenant is the best option, but if that is impossible, I would err on the side of caution in the sense that I would give the tenant the benefit of the doubt as to whether the impact was beyond normal wear and tear. I believe most judges would.
Question 8: Are we allowed to send out rent increases and raise rents during COVID-19?
Answer 8: Generally, serving rent increases is allowed, though in certain cities or counties they are not allowed to take effect until after the statewide state of emergency is deemed over. You need to check your local city or county rules to see if they have restrictions on rent increases, as the statewide governor’s emergency order only deals with evictions for nonpayment of rent.
Question 9: I have a Section 8 tenant who has recently damaged my Oakland rental property. She knocked down a fence. I paid for repairs to the fence. She didn’t even notify me -a neighbor contacted me, as the fence was knocked onto the neighbor’s property. She (the tenant) established the payment plan and sent only one payment. She has not submitted any further payments and has not indicated any hardship during this time, or asked Section 8 for additional support, as my other tenants have. She has done extensive damage in the last two years to my property. The other damage she has paid, but this she has not – the most expensive damage she has done is this year. She also has not paid her rent for the month of July 2020. She has not paid the increase of her rent for 2020, effective March 1, 2020. I have sent notices to her, various correspondences, and filed complaints with the Housing Authority of Oakland. I realize we are in the midst of the COVID-19 crisis, but what will be my recourse? Is she allowed to forfeit payments for rent at this time? I have had a terrible time with her the last two years with excessive damage to property. What do you recommend for action? Please tell me what I can do, what I should know, etc.
Answer 9: Your situation is beyond the scope of the AOA Q&A forum, which does not allow for specific legal advice on a specific matter. But in general, the Oakland eviction control law allows you to serve the tenant with a written demand that she repair or pay for damages she caused, or allows you to bring the eviction lawsuit for nuisance (once the court’s reopen). See Oakland Municipal Code Section 8.23.360 for the various just cause grounds for eviction. However, such actions are severely restricted for now due to the pandemic, and the only cases the courts are accepting are ones where the public health and safety is at risk. From your statement, it is unlikely your case would qualify for that exception.
The non-payment of rent is a separate issue, and is generally discussed in other responses above.
Question 10: I’ve gotten a report from a neighbor about a “vicious” dog that my tenant has on the property. What is my liability? Do I have the right to require tenant to get rid of the dog? This is a long-time tenant. No lease in place.
Answer 10: An owner who learns or has reason to suspect his tenant has a vicious dog is at risk of liability if the dog injures someone. As stated in the leading landlord tenant treatise:
Dangerous animals: A landlord who is aware that a tenant is keeping a vicious animal on the premises and who has the power to remedy the condition (i.e., by removal of the animal or eviction of the tenant) may be liable to third persons injured by the animal. [Uccello v. Laudenslayer, supra, 44 CA3d at 512, 514, 118 CR at 746, 748—minor child visiting premises attacked by tenant’s vicious dog; Donchin v. Guerrero (1995) 34 CA4th 1832, 1838-1839, 41 CR2d 192, 196—plaintiff attacked by tenant’s vicious dogs about 4 blocks from landlord’s premises.)
The most important factor appears to be the owner’s awareness of the dog’s tendency toward violence. An investigation may be appropriate, as to why the neighbor reported as he or she did. You might also ask other neighbors if they have any information that would support the report from the original complaint. You might also be able to get some assistance from the local animal control department, which may, upon request, investigate to determine if the tenant’s dog poses a threat.
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.