This article was posted on Sunday, Sep 01, 2013

Question 1:  I have a two-year lease with my tenant in San Francisco. The renter told me he lost his job and would move out of the unit and apply the deposit money towards his rent. He has six more months left on his lease. Can I apply the deposit to his rent as he suggested?
Answer 1: You may apply the deposit to any unpaid rent that he owes at the time he moves out, but not to future unpaid rent. In other words, if the tenant breaks the lease by not paying for August, and then moves out at the end of August, you can apply the deposit to cover the August rent. You still have to provide the tenant the statutory accounting of the deposit within 21 days of the tenant moving out, per Civil Code Section 1950.5, but it would be a simple accounting since (assuming a one month rent amount was the amount of the deposit), the entire deposit would be applied to the unpaid July rent.

As for trying to collect future rent, given the rental market in San Francisco right now, the tenant is probably providing you a financial benefit by moving out before his lease is over. If you are able to rent the unit for the same or more than the tenant was paying (and assuming no ‘downtime’ or other re-renting expenses), you would have no actual financial loss from the breach of the lease, and hence no claim against the tenant.

It should be noted that unless the lease describes the security deposit or some part of it as ‘last month’s rent,’ the tenant would be in default if he attempted to apply the deposit to his rent, absent your approval. If you did not approve, you would be allowed to serve a three day notice to pay the rent or move, which could be followed by an unlawful detainer action if the tenant failed to either pay or vacate during the three day period.

Question 2: What are the official protected classes, both federally and in California? I have looked on many websites and they all seem to have different answers.
Answer 2: The Protected Classes under federal law for housing discrimination claims are:

  • Race
  • Color
  • Religion
  • National Origin
  • Sex (Gender)
  • Disability
  • Familial Status

In addition to the above list of “protected classes” the State of California has added:

- Advertisers -
  • Age
  • Ancestry
  • Gender Identity
  • Marital Status
  • Sexual Orientation
  • Medical Condition
  • Arbitrary Characteristics
  • Source of Income

In addition, the California Supreme Court has held that protections under the Unruh Act are not necessarily restricted to these characteristics. The Act has been interpreted to cover arbitrary and intentional discrimination on the bases of personal characteristics similar to those listed above, including occupation and attire. In other words, just about any discrimination based on factors other than rental history and income is subject to a claim of illegal discrimination. For more information, you can visit the state’s fair housing website at

Question 3: What are the pros and cons of sub-tenancy and co-tenancy? And which option would be in the best interest of the Owners?
Answer 3: That’s a pretty wide open question. Generally, in a non-rent controlled location such as Richmond, co-tenancy is the better arrangement for the landlord, since all co-tenants become obligated to perform the obligations of the lease, including the obligation to pay the rent over the length of the tenancy. Subtenants do not have this same obligation, and are only liable for the rent for the period they occupy the premises. For example, if the lease has six months left, and the tenants breach it and move out early, only persons on the lease will be liable for the balance of rent due (minus, of course, the landlord’s obligation to ‘mitigate’ the amount due by re-renting the premises). Subtenants do not have a contractual relationship with the landlord and so are not responsible for the rent after they cease to occupy the unit. On the other hand, in rent control locations, making a new occupant a ‘co-tenant’ on the lease will likely result in the loss of the landlord’s potential right to increase the rent to market rate once the ‘last original tenant’ vacates.

Question 4: I have an Oakland tenant who has been paying late for more than three months now. Although his account is current and he pays the late charge every time, lately he has paid the rent at the end of the month. The lease states that rent is due in full every first of the month. Can I serve him a 60-day notice to terminate his tenancy under Measure EE?
Answer 4: Oakland’s ‘just cause’ eviction control law – Measure EE – does not include a provision similar to that in the San Francisco version (allowing termination of a tenancy for repeated late rent payments or ‘bounced’ checks). However, I am not aware of any case that would preclude using Measure EE’s Section 8.22.360(A)(2) to terminate a tenancy of a tenant who repeatedly pays the rent late, after being warned in writing that future late rent payment will be deemed a material violation of the lease and subject the tenant to termination of the tenancy under that section. Because this is a challenging effort – to terminate a tenancy using a provision of the Ordinance not clearly applicable to the facts – the landlord should consult with qualified legal counsel before initiating that effort. Due to changes in the law over the last several years, the landlord would probably not face liability for attempted wrongful eviction should she try and fail to evict the tenant. However, any eviction effort requires the landlord to have a reasonable expectation of prevailing before proceeding, and that will likely require expert guidance in this case.

Question 5: The tenants in my San Jose building put in an unauthorized air-conditioner. I gave them a 3 day notice to cure covenant or quit (alterations without prior written consent). They removed the unit, but left the area damaged. I would like to give them an eviction notice because of the damages which they have not fixed. Can I give them a 30 day notice, or do I have to give a 60 day and go through all the hoops that I read from the San Jose website to provide a 60 day notice with ability to do arbitration?
Answer 5: I would need additional facts to be able to answer your question, however. First, it is not clear from your question if the tenants actually cured your three day notice, or not. If not, and the breach is material, then you should be able to proceed straight to unlawful detainer action. Also, if the tenants have been in possession under one year, you would be able to serve a ‘no cause’ 30 Day notice.

Otherwise, and according to the San Jose rent board’s website, the San Jose Director of Housing has determined that the City of San José is NOT experiencing a Severe Rental Housing Shortage. Based on information for the third quarter of 2013, the San José rental housing market has a 4.7% vacancy rate. The impact of these findings is that, effective June 1, 2013,  “no-cause” notices served to tenants living in rent-controlled properties will be 90-day notices, or 60-day notices including an offer to arbitrate for those tenants who have lived in the unit for more than one year. Please see the weblink  for additional information.

Question 6: How many days notice is required for a rent increase? Does it matter if I serve the tenant personally or mail it?
Answer 6: 30 days’ notice is required unless the increase exceeds 10% of the current rent amount, in which case a 60 day notice is required. The notice may be served by serving the tenant personally, or by first class mail. If mailed, however, you have to add 5 days to the notice period.

Question 7:  I am thinking of selling my tenant-occupied rental in Oakland. I am aware that the Oakland rent control law does not allow me to ask the tenant to leave. Is it legal to buyout the tenant? If so, do I need a lawyer to mediate the process?

Answer 7: You are correct that the Oakland rent and eviction control law does not permit asking the tenant to leave when you are selling the unit, but there is a constitutional right to engage the tenant in ‘buy-out negotiations,’ if handled properly. You do not ‘legally’ need a lawyer, though it is probably the ‘safe’ course. You can let the tenants know you are selling, and inquire if they were interested in receiving a relocation payment to vacate to facilitate the sale, and, if so,  you would be willing to discuss it, always letting them know that they have tenant rights and should contact their own legal counsel or the rent board for information. If the tenants make it clear they are not interested, that is normally the end of discussions. If the tenants express an interest in such relocation payment negotiations, and you reach an agreement, I would recommend a lawyer then, to help draft a clear and binding agreement.

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



Leave a Reply