This article was posted on Friday, Dec 01, 2017

Question 1: Do rent controls apply to San Jose single family houses at this time?Answer 1: Generally, with some very limited exceptions, rent control does not apply to single family homes in any city that has such local ordinances. A state law, known as the Costa Hawkins Act, preempts such local laws as to condominiums and single family homes. The exceptions are primarily related to tenants who were in possession prior to 1996 (more rare by the day…), if the home was subject to severe habitability defects that remain unabated for over six months, and where the prior tenancy was terminated by the owner for reasons that did not involve any default by the tenant of the tenant’s obligations.

Question 2: I have a tenant in my Oakland unit who moved to Thailand and has not paid rent for two months. He gave me a notice he was moving out a week ago, but all of his property is still in his apartment, but it does not appear he has any plans on returning. I want to know what forms I should send him to sign to guarantee I will have no problems if he returns. He seems to want to work with me.
Answer 2: If the tenant is willing to work with you, the simplest resolution of your situation is to have him confirm in writing that he has surrendered possession of the premises and abandoned his personal property and that you are free to dispose of it as you see fit. If he does this in writing, you are free to retake possession and remove his possessions in whatever way you want (sell, give away, haul to dump etc.).

If he is not that cooperative, then you could proceed under the Notice of Belief of Abandonment and Notice of Right to Reclaim Abandoned Property notice provisions. AOA provides both forms, which are relatively self-explanatory to use. But if the tenant will cooperate as above, then you would not need to bother with those two notices. (AOA Form 145)

Question 3: I manage a triplex. One of my tenants wants to break his lease (which runs until the end of February) and move out in mid-December. The unit will need painting and carpet, and they have a large indoor dog. The tenant wants me to start showing the unit now to try and avoid them owing any rents after moving. The unit is not in good condition to show with the tenants living there and the time frame over the holidays is not advantageous to finding a renter. Do I have the right not to show until they move and repairs are completed, or is this not acting in a manner to try and mitigate their damages?
Answer 3: The tenants are obligated to pay the rent for the entire lease term, and if they breach the lease you are obligated (as you note) to try to ‘mitigate’ their damages, This means you need to take ‘reasonable’ efforts to re-rent the unit as soon as possible for as much rent as possible, to lessen the amount the breaching tenants will ultimately owe. What this means in any given situation is never perfectly clear, in terms of exactly the owner should proceed under the requirement that she take reasonable steps to re-rent the unit.

At minimum, you are probably allowed to wait until the tenants vacate before deciding what work you need to do to the unit to get it ready for a new tenant. There may be an obligation to try to get new tenants ready to move in as soon as the unit is ready, by marketing the unit even while the current tenants are in place (you would let prospective tenants know exactly what is happening in terms of the existing tenants’ intention to vacate, and your need to determine how long it will take to get the unit ready).

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As a pre tem small claims judge, I would probably not find that level of advance effort required under the mitigation concept, but in the event your departing tenants can not later be located or are financially not able to satisfy a judgment for the lost rent, it is probably in your interest to have new tenants ready to occupy as soon as possible.

Question 4: We have sent two letters to all the tenants at our apartment complex asking them to remove items that are being stored on the side of the property. I now know which tenant the items belong to and I have sent out a warning letter to have the items removed to their backyard or to dispose of the items. I gave them a week and a half to do it or we will remove the items and dispose of them. Can I legally throw the stuff out?
Answer 4: You should not dispose of their property while they remain in possession, as such an effort would likely be considered unlawful ‘self-help.’ A safer course would be to serve a three day notice to cure a lease breach, assuming you have a lease provision prohibiting storage of personal property other than in designated storage areas or in the unit. If you do not have such a provision, and the lease is month to month, you can add one by serving the tenants with a Notice of Change of Terms of Tenancy to add such a provision. Once it takes effect (30 days after service if personally served, 35 if mailed), then the tenants can be required to comply, or face eviction for breach of lease.

Of course, if the tenants are on a month to month lease, and not subject to eviction control, a letter to the tenants that you will terminate their tenancy by a 30 or 60 day notice unless they remove their possessions asap, would likely have the desired effect of getting them to comply.

Question 5: Is a tenant able to legally file a restraining order on a landlord that lives on the property?
Answer 5: The court can issue a restraining order against anyone – landlord, tenant, family member, co-occupant, whatever – if it finds the facts warrant such relief based on an application supported by evidence. But it will generally adjust the terms of the order when the parties live close to each other. For example, the person seeking the restraining order may want a 50 yard separation requirement, but the court would likely limit the order to allow the restrained person access to their premises, while still maintaining no contact with the protected party.

Question 6: I have a rental applicant who does not have a Social Security number, but does have a tax ID. Are there any legal ramifications to me, if I rent to him? Are there any precautions I should take?
Answer 6:  I don’t think there are any ‘legal ramifications’ to you by renting to a tenant by using a Tax ID rather than social security number. You may get less information from your credit reporting service by using the Tax ID number, but there is no ‘legal’ reason you can’t proceed.

Question 7: When do I file for eviction after serving the 3 day notice if they haven’t paid it, and can I (should I) refuse payment after the 3 days?
Answer 7: You may file the Unlawful Detainer the day after the 3 Day Notice expires, if the tenant has not paid the amount demanded. You may refuse to accept the tenant’s rent tender after that notice expires, but if it is tendered before you file the UD, a court may be more likely to grant the tenant ‘relief from forfeiture’ at some point during the proceedings. The court has the power to reinstate the tenancy if the tenant pays all amounts owed and the tenancy is for a term longer than month to month (or subject to eviction control local law, which has the effect of making the lease no longer month to month, at least as to the tenant’s right to remain in possession unless the tenant decides to leave or the owner has ‘just cause’ to terminate the tenancy.

Question 8: I have a tenant in an Oakland unit who is complaining about the upstairs neighbor smoking in their garage and sleeping there as well. They are complaining that they can smell the smoke from their unit, and they have small children. I already sent out a ‘no smoking’ letter to all tenants earlier this year and seems like this tenant is not following it. Should I write a warning letter to the tenant? And let them know about eviction if it happens again.

And is sleeping in the garage allowed? It seems they may have people live their once in a while?
Answer 8: If the unit is covered by Oakland’s Measure EE, you will need to send a warning notice (the ‘pre-notice notice) to the tenants before you can take legal action to terminate the tenancy for lease breach or nuisance. It is not clear if your ‘no smoking letter’ would qualify as the pre-notice notice, and if there is doubt, it is better to serve a formal notice so the tenants can not use that as a defense to any subsequent unlawful detainer arising from the violation

And no, sleeping in the garage is not a permitted use of the garage and so should be stopped immediately. This can be done in the same pre-notice notice as the smoking warning.

Question 9: Is it legal for us to ask potential tenants if they carry a marijuana prescription upon accepting their application?  Also, can we still disqualify them based on having such a prescription if the owner of the unit is opposed to marijuana on their property? If the potential tenant plans to smoke but not grow marijuana on the property does that change our obligations?
Answer 9:  Actually, your question could allow for a more detailed response, and may be the subject of a separate article. But basically, if the tenant/applicant has a medical pot card, they will probably qualify as having some disability, and the pot smoking (or eating or however they ingest it) could be the basis for a request for a reasonable accommodation. If so, the owner would have to choose between agreeing to the requested accommodation or refusing it, and if refusing it, possibly having to justify to a fair housing court the basis for the refusal. Just ‘not liking pot’ would probably not be good enough. If they stated they intended to smoke pot, as opposed to ingest it or perhaps ‘vape’ it that could constitute a nuisance to other tenants and justify a rejection on that basis. If there is no disability issue, then the owner can prohibit pot smoking just like she can prohibit tobacco smoking.

Question 10: We own an apartment building in the city of Richmond, CA. Two of our tenants are late paying their rent. We are going to serve them a three day notice to pay rent or move out. Can we include the 5% penalty in the 3-Day Notice or not? Thanks for your advice.
Answer 10: It is basic law – no adding late fees to a three day notice for non-payment of rent. If the lease calls late fees ‘rent’ and it’s a commercial lease, then adding the late fee to the rent demand is allowed. But even with that language, it is probably still not permitted in residential tenancies. You can serve a separate notice for the late fees along with the nonpayment of rent notice if you want to try to collect the late fees (but they are troublesome, as several of my Q&A responses have detailed).


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 [email protected] or by visiting the website