Question 1:     What are the requirements for when and where to install CO detectors in two-story units?

Answer 1:  In 2010,California enacted the Carbon Monoxide Poisoning Prevention Act. Among other things, it requires the installation of carbon monoxide detectors in “in each existing dwelling unit having a fossil fuel burning heater or appliance, fireplace, or an attached garage”. The act phased in their installation, pursuant to Health and Safety Code, §§ 17926, et seq., and the last deadline was January 1, 2013, so, as of today, all residential dwelling units must have a detector.  As for location, carbon monoxide alarms required shall be installed in the following locations:

  • Outside      of each separate dwelling unit sleeping area in the immediate vicinity of      the bedroom(s).
  • On      every level of a dwelling unit including basements.
  • For      single family residences only: “On the ceiling of sleeping units with      permanently installed fuel-burning appliances.”

Question 2:     I have two units, upper unit Flat A (new carpet floor) and lower unit Flat B (hardwood floor). Flat A moved in July 2012, and signed a lease that says no pets. Now they request to have a small pet. Flat B moved in last month, and also signed a lease that says no pets. Both leases are for one year term. What option do I have on Flat A’s request? And any legal consequence from Flat B?
Answer 2: Unless the requested pet is one that qualifies as a service animal or ‘comfort animal’, as discussed in a recent Q&A (in which case the tenant’s right will override the lease restriction), it is your option whether to ‘break’ your own rental prohibition on pets. If you do so for one unit though, it may be difficult to justify enforcing it for the other. And if the pet upstairs unreasonably disturbed the quiet enjoyment of the tenants downstairs, those tenants may have some claim for diminished quiet enjoyment, resulting in, arguably, a valid claim to a rent reduction.

Question 3: I would like to charge a new tenant the following charges to move in. Are there any charges I can’t require?

  • First      month’s rent and security deposit of two month’s rent;
  • $100 for garage door remote deposit;
  • Non-refundable carpet cleaning fee ($250) + one-time      service charge for garage door remote control ($50) + 4 set of keys      @$25/each ($100) = $400.
  • $300 Condo fee (which is the HOA dues).
    Answer 3:       A landlord may not charge any non-refundable fee to a tenant, other than the actual cost of a credit report, which cost may not exceed a specified amount which is currently about $40.00. So the cleaning fee and the garage door fees are not proper, other than as additional security deposits that must be accounted for at the termination of the tenancy with the rest of the deposit. A landlord may require up to two month’s rent as security deposit on an unfurnished apartment.  The charge for keys is less clear, but I believe comes under the same rule as the other charges. The condo fee sounds like simply additional rent, which you are allowed to charge, despite calling it a condo fee.

Question 4: We have a tenant that was originally on a one year lease, which expired about two years ago. Do we have the right now to insist that this tenant be on a lease? If the tenant refuses then what? This is not a rent-controlled property.
Answer 4: From your description, you and your tenants are on a month-to-month rental agreement under the terms of your original one-year lease, since when the lease expired and tenants remained in possession, the terms continued on exactly the same terms, only month-to-month. If the question is, can you require the tenant to renew the lease for another year, yes, you can, simply by sending a written 60 day notice that at the beginning of the month following expiration of the 60 days notice, if the tenants remain in possession, it will be under the terms of the original lease, with a renewed one year term starting the first of that month. If the tenant does not want to be on a one year lease, they would simply vacate with a 30 day notice before the new lease term begins.

Question 5: We purchased aHayward 20-unit apartment, townhouse style with no private back yard and patio last year. Recently, there are two tenants who put marijuana plants in front of their units (common area). They claimed they are able to this under the Medical Marijuana law. We talked to the city attorney and police department, but they didn’t give any idea to solve the problem. The police officer said that they could have plants in their private unit, but that the whole thing is a gray area. Can we prohibit the tenants from growing marijuana in the common area?

Answer 5: This is an extremely unsettled area of law. The reason that the police department and city attorney view this as a “gray area” is most likely due to the Compassionate Use Act of 1996, which decriminalizes the possession, cultivation and medical use of individuals with a medical prescription. This, however, does not immunize the tenants from compliance with other laws affecting their tenancy, such as federal controlled substance laws.  In some cases, a landlord can terminate a tenancy inCalifornia on as little as 30 days’ notice without a reason (which would seem to solve your problem). However, certain cities have “eviction control” ordinances, which prevent landlords from terminating tenancies, other than for “just cause”. The Hayward Residential Rent Stabilization Ordinance (“the Ordinance”) imposes such a restriction. The question is whether the growing of marijuana plants in common areas (and, perhaps, the smoking of marijuana inside the unit) is a just cause for eviction, or, if not, whether there are any other permissible actions you can take to abate the issue. It is possible the tenant’s acts constitute a legal nuisance that would permit termination of the rental agreement, if the tenant failed to cure the nuisance by removal of the plants from the common area.

Marijuana as “Just Cause” (Nuisance): Section 19(a)(12) of the Ordinance provides for just cause to evict a tenant where “The tenant has used or allowed the use of the rental unit, or any other area owned or controlled by the landlord, for the manufacture, sale, distribution, possession, or use of a controlled substance as defined in state law”. (This language roughly tracks the “nuisance” language ofCaliforniaState law (Health and Safety Code, §11570).) It’s undisputed that these tenants are manufacturing and possessing marijuana, so the eviction controls would not seem to impose any restriction on your ability to file an unlawful detainer (“eviction”) lawsuit.

Section 1161(4) of the California Code of Civil Procedure provides for the eviction of tenants who commit a nuisance. (“a person who . . . commits an offense described in . . . subdivision (c) of Section 3486 of the Civil Code . . . shall be deemed to have committed a nuisance upon the premises.”) Civil Code §3486(c) includes the manufacture and possession of marijuana (among other illegal drugs). Based on case law in the employment context, a strong argument can be made that marijuana use does not fall within the “reasonable accommodation” requirements of state or federal anti-discrimination laws.

With all of that said, there is currently no case law on termination of a residential  lease to evict a tenant based solely on the tenant’s use of a controlled substance that is illegal under federal law but immunized from criminal penalties under state law. Your best solution may be as simple as informally letting your tenants know that, whether or not they have a medical marijuana prescription, they are still in violation of civil law and you have just cause for eviction under the Ordinance. Advise them to grow their plants elsewhere (possibly inside their unit, if you have no objection to that) and keep their “medication” private, and recommend that they find a way to consume the marijuana that does not create smoke (e.g., using “edibles” or a vaporizer), because this may interfere with the quiet enjoyment of the other tenants, further justifying an unlawful detainer suit.

Question 6: I just bought a triplex (three units in one building) in Hayward and closed on the loan yesterday. Previously, the triplex was being managed by a property management company. Since I am the new owner of the property, I would like to manage it myself. All three units of the triplex are occupied by tenants, some of whom are in yearlong leases and for some the leases have expired so they are on month-to-month lease. I don’t know if the property has rent control. How can I find out?
Answer 6: First of all, congratulations on your acquisition. In response to your multi-part question:

  1. Haywardhas a form of rent control.  Please visit the Haywardrent board website that explains the details at http://user.govoutreach.com/hayward/faq.php?cid=11965).
  2. Basically, if you own more than five units inHayward, those units are under rent control and you are limited to a 5% increase per year. If the triplex is your only property inHayward, it would not be covered.
  3. You should notify the tenants of your ownership, in an introductory letter and inform them how to contact you (or your agent) and where to begin to pay the rent. As for the property management company, of course you need to review whatever agreement is in place between them and the prior owner and insure what you need to do to terminate their services. You can include in your letter to the tenants the information regarding the change of management.
  4. The rental agreements transfer with the property ownership, and you step into the shoes of the prior owner regarding the leases with the tenants.

 

Question 7:     Do I have to serve a copy of my eviction notice on theOakland rent board?
Answer 7: Yes. According to the eviction control law in Oakland – Measure EE – at section 8.22.360 B.7, “Within ten (10) days of service of a notice terminating tenancy upon a tenant, a copy of the same notice and any accompanying materials must be filed with the Rent Board. Each notice shall be indexed by property address and by the name of the landlord. Such notices shall constitute public records of the City ofOakland, and shall be maintained by the Rent Board and made available for inspection during normal business hours. Failure to file the notice within ten (10) days of service shall be a defense to any unlawful detainer action.”

So, if you serve a notice to terminate a tenancy for any reason on a covered unit in Oakland, you have to file a copy with the rent board. My office typically mails a copy with a second copy and SASE and then calendars the deadline to make sure we have a file-stamped copy back or, and particularly if the 10 days is close to expiring and our stamped copy has not been returned, we have a messenger take one personally to the rent board to be sure.

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 rich@beckmanblairllp.com or by visiting the website www.beckmanblairllp.com.

Leave a Reply