Question 1: I recently heard that tenants’ children can inherit their rent controlled apartment. Is that true?
Answer 1: Somewhat. A recent case in San Francisco was just decided called Mosser v San Francisco Rent Board, which held that a minor child who lived with his parents when they signed the lease was entitled to rent control when the parents moved out and the adult child took over the unit. It was limited to the facts of that particular case, in which the landlord sought to impose a ‘Costa Hawkins’ rent increase on the remaining occupant (the adult child) after the landlord learned the parents had moved out. (The state law known as Costa Hawkins allows a rent increase to market rate when “the original occupant or occupants who took possession of the dwelling or unit pursuant to the rental agreement with the owner no longer permanently reside there.”).
In the Mosser case, the SF rent board found the rent increase was unlawful because the son “is an original occupant who took possession of the unit pursuant to the original rental agreement with the owner and he continues to permanently reside in the unit.” The parties stipulated that Brian, then aged 13, moved into the apartment with his parents with the approval of the landlord when the tenancy commenced in November 2003 and remained in the apartment when his parents vacated the apartment in August 2012, when Brian was 23 years old. Although the parents alone were parties to the lease, the court agreed that the son was an original lawful occupant of the apartment entitled to protection under the ordinance. The court ruled that the adult child who remained in the unit was entitled to the continuing rent control provision that limited rent increases to the annual amount permitted under the Ordinance (which is generally limited to annual CPI increases, rather than market rate increases.
You can read the case at www.courts.ca.gov/opinions/documents/A141134.PDF.
Question 2: The tenants in our Concord rental have been paying rent late for several months. They don’t pay when they say they will and/or they only make small payments throughout the month. Can we send a notice to them stating that we will only accept a maximum of two partial payments per month and that the first one must be at least half of the amount due, and if it’s past the 4th of the month, there is a late fee of $50.00 charged?
Answer 2: If the tenants are in breach of their obligations under the rental agreement, you and the tenants can agree to modify your rental agreement, even if it is during the period of the agreement i.e. during a one year lease term.( If the tenancy is month to month, you could amend it unilaterally by sending the proper notice). So, you can reach the agreement you suggest, but as you have probably seen from my prior columns, the late fee remains a difficult issue to enforce (see the case Orozco v Casimiro, which can be read online at caselaw.findlaw.com › Caselaw › California › CA Superior Ct., App. Dept). At minimum, there should be language in the lease stating that “Tenant acknowledges that either late payment of rent or issuance of an insufficient fund check may cause landlord to incur costs and expenses, the exact amount of which are extremely difficult and impractical to determine. These costs may include, but are not limited to, processing, enforcement and accounting expenses, and late charges imposed on landlord. Tenant’s signature on this rental agreement confirms that Landlord and tenant have mutually considered this potential issue and agree that these charges represent a fair and reasonable estimate of the costs landlord may incur by reason of tenant’s late or NSF payment.” And the tenant’s initials on that provision would be ideal.
But in general, if the tenants agree to the payments terms, and you handle the late fee provision properly, you should be able to do what you suggest in your question.
Of course, you could always serve the tenants with a three day notice to pay rent or quit, forcing the issue of their repeated late and partial payments.
Question 3: There are three (3) tenants on a written lease. They have not paid rent for February. Do I need to serve each tenant with a 3-day notice or is serving one tenant sufficient if I name all three tenants on the notice?
Answer 3: Service of the notice on one co-tenant is the equivalent to service on all tenants named on the lease, and each should be named on the notice. According to the case University of Southern California v. Weiss, (1962) 208 Cal. App. 2d 759, 769-770 “A further question arises as to whether the other defendants, Weiss, Rothman, and the academy, were served with the notice of termination. The service of the notice on Isacsohn was notice to the other defendants. In Gentry v. Citron, 36 Cal.App. 288 [171 P. 1079], which was an unlawful detainer action, a three-days’ notice to quit was served upon one of the two lessees. Appellants therein (tenants) contended that such service was insufficient. The court said (p. 288): “The point is untenable. As the lessees had bound themselves together as coparties to the lease, standing thus in opposition to the respondent, the lessor, they occupied as between themselves and as to him a relationship kindred to that of copartners, if, in fact, they might not actually have been regarded by him as copartners [citation], which latter point we do not, however, decide. A notice to one of copartners binds the partnership [citation], and we can see no reason why the spirit and justice of the rule do not require its application to such a case as is here presented. In fact, it has been determined in other jurisdictions that where two or more tenants hold either jointly or in common, a service of notice to quit upon one of them is sufficient to terminate the tenancy of all.” In the present case, the court could find, from the statements in plaintiff’s affidavit, that all the defendants were served properly with the notice of termination.”
Question 4: If we rent to a person who is handicapped (soon to be in a wheelchair), do we have to make the entire apartment handicap accessible (bathroom, kitchen, etc.)?
Answer 4: You do not have to retrofit the unit to accommodate a disabled tenant. However, the tenant is entitled to make necessary alterations to the unit, at their expense, pursuant to Civil Code Section 54.1, set out in part below.
Section 54.1(3)(A) Any person renting, leasing, or otherwise providing real property for compensation shall not refuse to permit an individual with a disability, at that person’s expense, to make reasonable modifications of the existing rented premises if the modifications are necessary to afford the person full enjoyment of the premises.
However, any modifications under this paragraph may be conditioned on the disabled tenant entering into an agreement to restore the interior of the premises to the condition existing prior to the modifications. No additional security may be required on account of an election to make modifications to the rented premises under this paragraph, but the lessor and tenant may negotiate, as part of the agreement to restore the premises, a provision requiring the disabled tenant to pay an amount into an escrow account, not to exceed a reasonable estimate of the cost of restoring the premises.
Question 5: If a water heater burst, wetting down the carpet on the first floor, what duty does the tenant have as far as replacing the carpet to restore the property to the as-rented condition? Can the tenant replace the carpet at his expense and deduct the cost from the rent?
Answer 5: If the water heater burst and it was not the fault of the tenant, then the landlord is responsible to return the unit to habitable condition. That may mean just cleaning and drying the carpet, or, depending on the situation, replacing it (and possibly any saturated surface under the carpet if necessary). If the landlord fails to make the repairs in a reasonable time, the tenant may do the ‘Repair and Deduct’ procedure as described in Civil Code Section 1942.
Question 6: I have a single family home located in Lodi that has had the same tenants for the last four years. I have not raised the rent during their occupancy. However, I want to raise the rent at this time. Currently, the rent is $1,795.00 per month. I want to raise it by $100.00 dollars to $1,895.00. My desire to raise the rent is because my property taxes, insurance, and maintenance costs for the home have increased. This rent increase amount is 5.6%. Is there any restriction from me raising the rent by this amount?
Answer 6: On the facts you provide, there is no restriction on your right to serve a 30 Day Notice of Change of Terms of Tenancy to increase the rent as you propose below. Just be aware of the requirement of service of the notice, which is set out in Civil Code Section 827, reprinted below in part.
Section 827 (b) (1) In all leases of a residential dwelling, or of any interest therein, from week to week, month to month, or other period less than a month, the landlord may increase the rent provided in the lease or rental agreement, upon giving written notice to the tenant, as follows, by either of the following procedures:
(A) By delivering a copy to the tenant personally.
(B) By serving a copy by mail under the procedures prescribed in Section 1013 of the
Code of Civil Procedure.
(2) If the proposed rent increase for that tenant is 10 percent or less of the rental amount charged to that tenant at any time during the 12 months prior to the effective date of the increase, either in and of itself or when combined with any other rent increases for the 12 months prior to the effective date of the increase, the notice shall be delivered at least 30 days prior to the effective date of the increase, and subject to Section 1013 of the Code of Civil Procedure if served by mail.
Question 7: We have a tenant who moved out recently and is upset with their security deposit refund not being what they expected. They feel they are entitled to all of it or at the very least half of it. They had pet damage for the carpet which is why they were charged higher for carpet cleaning. However, they know the former tenant who lived there before them and claimed that the damage was caused by the former tenant. They are saying that the past manager told them that they would replace the carpet or just buy them a rug to put over the carpet before they moved in. There are other things that we discovered that the former managers and maintenance are responsible for also. The former manager left us with many messes to clean up. Since all of this was before we owned or managed the property, would we be held liable for it? Or how do you suggest we handle this situation?
Answer 7: If the tenant is entitled to return of the deposit, it will be your – the current owner’s – responsibility. You might be able to claim that some or all of any refund you pay to the tenant should be paid by your former manager, which would likely be the case if they failed somehow in their duties to you. If you can reasonably conclude the tenant is telling the truth as described in your question, and so is not responsible for any damage beyond normal wear and tear or cleaning, then you should refund the deposit amount and contact your former manager and see if they will reimburse you. You may need to have a small claims judge sort it all out, but whether all parties elect to go that route likely depends on the amounts involved, the value of your time, and the reasonable objective analysis of the facts whether you are more likely to lose or not at a small claims trial.
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 www.beckmanblairllp.com