Question 1: I read you have a new firm name and address. What’s going on?
Answer 1: I am pleased to announce that Beckman Blair LLP has joined the esteemed Berkeley firm Buresh, Kaplan, Feller and Chang P.C. and the combined firm will be known as Beckman Feller & Chang P.C. As of August 1, 2017, the firm began operating under its new name at two Bay Area locations. The main office will be located in Berkeley, at 2298 Durant Avenue, Berkeley, CA 94704, Phone: (510) 548-7474, Fax: (510) 548-7488. The firm will also relocate its San Francisco office from the current Spear Street address to 351 California Street, Suite 615, San Francisco, CA 94104. The telephone number for the San Francisco office will remain the same. The new firm will have a new website address – BFC-Legal.com. Email sent to our prior email address will be forwarded to us at our new email address, which will be used starting August 1, 2017.
We are excited to begin the new firm, and join with such distinguished partners and staff as those at the firm Buresh Kaplan Feller and Chang. The combined firm will offer more resources to be able to provide more complete services to existing and future clients, including a robust real estate and landlord-tenant practice, along with decades of collective experience in civil litigation. I will continue to practice real estate and landlord-tenant law, and invite you to contact me with your questions, whether they involve a current or prospective legal matter, or the new firm.
Question 2: The tenant signed a six month lease that expires in January. I received a 30 day notice that they will be moving on in August. They said they do not feel safe in the neighborhood. Can I hold them responsible for the rent to the end of the lease?
Answer 2: Generally, a tenant who leaves before the end of the lease is responsible for rent for the entire term of the lease. If the tenant had a legal reason to terminate the lease early, they would not be liable for any rent beyond the time they occupied the unit (though if the unit was not habitable, even that amount would likely be excused). In your situation, unless there was information about the neighborhood you knew but did not disclose to the tenants about crime-related activity, the tenant’s belated concern probably is not a legal excuse to breach the lease. But if, for example, you knew of episodes of home invasions in the area, or auto theft, and did not disclose that information to the prospective tenants, they may be justified in breaching the lease, especially if another such event should occur nearby or to them.
However, assuming the tenant had no legal ground to breach the lease, a tenant who provided 30 days’ notice of their intent to terminate and vacate is technically only liable for rent for the period of the notice. From that point, they no longer owe ‘rent’ but are legally responsible for ‘damages’ – usually the daily rental value for the rest of the lease term reduced by the rent you are reasonably able to receive from new tenants. However, if your lease contains the proper language, you may have the option of simply leaving the property vacant, and not terminating the lease, but holding the tenant responsible for the rent each month until the lease expires. However, this is more typically a commercial tenancy remedy and rarely used in the residential setting.
Question 3: We have a tenant who was supposed to vacate by August 1st, but she did not. She claims that she has to get the rest of her stuff out and clean the unit. What course of action should we take?
Answer 3: If the lease expired, the tenant is holding over and can be evicted by the unlawful detainer procedure without notice However, it is probably a better option to see if the tenant is able to completely vacate in the next day or two before filing a complaint, which will take time and money. But you might let her know that unless she commits to a final date to be out with all her possessions, and honors it, you will be forced to file that lawsuit against her. That should get her attention.
If the tenant simply said she was moving out, and doesn’t, you may need to provide her formal notice, such as a notice to terminate the tenancy (if not a rent-controlled tenancy) or to pay rent or quit, in order to establish a basis for an unlawful detainer case.
Question 4: 1) If I see some tenants in my San Francisco building have garbage (cans, beer bottles, etc.) in their back porch, what is the best way to tell them to dispose it? Can I tell all tenants to dispose all cans and garbage from their back porch, and not to leave any back there? Also I do see some stuff on the common areas of the yard like garbage too, but not sure which tenant it is coming from.
2) One of my tenants uses the garage for entertainment purpose, such as having game tables and sofas and invites their friends to come along. Am I allowed to do something about it? Is the garage strictly for car and storage only?
Answer 4: As to your first question, you can of course ask the tenants to maintain their area free of garbage and such, and if you find it is really a problem, provide written warnings that the tenants have a duty to maintain their area free of debris and garbage, and cite Civil Code Section 1941.2, which requires the tenant to:
(1) To keep that part of the premises which he occupies and uses clean and sanitary as the condition of the premises permits.
(2) To dispose from his dwelling unit of all rubbish, garbage and other waste, in a clean and sanitary manner.
If the tenants fail to cooperate, a three day notice regarding nuisance or breach of the lease would be appropriate.
As to the use of the garage for entertainment, if the garage is part of the tenant’s leased space (as opposed to shared space), it may be a reduction of services to prohibit the tenant from using the garage in a way that does not violate the law, such as for cooking, or conducting nuisance activity like noisy parties etc. I am not sure if there is any legal restriction on using a garage for gaming purposes or friend gatherings. However, if you believe it is important to do so, then you can serve a notice of change of tenancy to limit use of the garage to parking and storage, though such restriction may, as mentioned above, constitute a decrease in housing services and so require a rent reduction (if enforceable at all, due to the restrictions under various local rent ordinances from unilaterally removing housing services).
Question 5: I currently have renters in Martinez paying $2,250.00 and they have been in the home for four years. They were on a one year lease which turned to month to month. I want to raise the rent to $2,800.00. I want to do it in steps over one year or less. How can I spell those kind of terms out in a lease? How much can I raise rent at one time? I would like to be back on annual lease but it isn’t totally necessary.
Answer 5: You can amend a month to month lease in a city without rent control such as Martinez by serving a proper Notice to Change Terms of Tenancy, including rent increases. You can impose rent increases more than once a year, but if the total amount in any 12 month period exceeds 10%, the increase notice must be a 60 day notice. You can also serve a new lease by a proper notice properly served, and if the tenants remain in the unit and pay rent, they will be deemed to have accepted the new lease terms even if they do not sign it and return it.
Question 6: We had two roommates leasing a two-bedroom and one of them moved out. The remaining tenant found a new roommate and I added them to the original lease via an addendum. The original lease had converted to a month to month years ago. We are now on roommate #3 or #4 and I’ve grown sour because I don’t have time to run around and create addendums and background checks every time my tenant loses a roommate. How can I limit this situation?
Answer 6: You could just forget about the background checks etc., and not add the subtenants to the lease. While landlords typically want to know who is living in the unit, it is not required that you undertake that effort with each new subtenant.
You could also charge the tenant some amount for each request for a new subtenant, reflecting the cost to you in your time for doing the review etc., given the repeat history.
You could begin to refuse to approve subtenants, citing the repeat events as your reason for doing so, which would force the tenant to perhaps defend an eviction based on lease breach if he installed an unapproved subtenant, though I think this would be risky and not likely successful, since the rules about approving subtenants are more focused on the quality of the proposed subtenant, rather than the aggravation to the landlord of repeat requests.
Finally, if not a rent-controlled tenancy, you can amend the lease to absolutely prohibit subletting. If the tenancy is subject to rent control, you might be able to amend your lease to provide that repeat request for subtenants is limited to two or three per year, though I don’t know if such a provision would be enforceable.
Also, if the tenancy is subject to rent control, you should be aware of the effects of the Costa Hawkins state law that allows a landlord to charge market rent when ‘the last original tenant’ has moved out, leaving other occupants behind. Arguably, adding the new occupants to the lease will preempt that right, so you should be careful before adding new occupants to the lease, rather than simply approving them as subtenants.
Question 7: We have a tenant who already moved out. For different reasons – holidays, getting repair estimates from contractors – the deposit was not returned within 21 days. What implications does it lead to? Are we obligated to refund the entire amount without taking any repair deductions? Is there anything else we need to know?
Answer 7: It is better late than never to provide the tenant with the required security deposit accounting and return of any unapplied balance, even if you do so after the statutory 21 day deadline. A failure to comply within the 21 day period generally means the deposit must be returned in full, though a failure to do so would require the tenant to seek small claims court assistance to order you to do so. A reasonable attempt to work with the tenant in terms of legitimate deductions is often the best approach. If it does come down to small claims, you should file a cross complaint for the deduction amount, since you do not lose the right to hold the tenant responsible for the damages – just the right (arguably, since the statute does not make it clear) – to withhold that amount from the security deposit.
Question 8: What can I charge for rent late fees and insufficient check funds in Oakland? What is the process for serving a three day pay rent or quit notice in Oakland. Is there any special documents I need to file with the rent adjustment program?
Answer 8: The City of Oakland does not regulate late fees or ISF fees. However, the applicable rent control law may limit changes to rental agreements already in force, by considering newly charged fees of either category to be a reduction in housing services which would require a corresponding rent decrease. In brief, once a tenancy is covered by rent control, the housing services which were included in the original rent amount must be continued without change, unless there is a corresponding rent reduction for a negative change.
For example, if the unit included laundry facilities, and the owner removed the laundry facilities, the owner would have to give the tenant a rent reduction reflecting the value to the tenant of the laundry services being removed. If the parties can’t agree, the rent board would hear the matter and decide on that value. Rights included in the lease – such as the right to sublet, have a pet etc. – are also ‘housing services, that can’t be taken away without a corresponding rent decrease.
Whether not having a late fee or an ISF fee in the rental agreement would be considered a ‘housing service’ is unclear. You might contact the Oakland rent board and ask if they have a position on that question.
Apart from any local rule, state law provides some restrictions on late fees and ISF fees, though ISF fees are easier to calculate as the bank will impose a specific charge which you can pass on, with a little extra for your inconvenience etc. Late fees are more troublesome in terms of being enforceable. But a 6% late fee is an approved rate for other contractual late fee purposes, so is often considered a standard rate for rental late fees as well.
A three day notice is served like any other three day notice, but a copy must be sent to the rent board within 10 days of service per the local rules. Also, an unlawful detainer (eviction case) for nonpayment of rent may require that you have complied with the requirement regarding notice to the tenant of the Rent Adjustment Program at the beginning of the tenancy, and with each rent increase during the tenancy. See the RAP website at http://rapwp.oaklandnet.com/resources/required-notices/ for more details on the RAP notice, which must also now be provided in three languages, and which is available from the rent board’s website.
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 firstname.lastname@example.org or by visiting the website www.bfc-legal.com.