Question 1: A tenant in my Oakland duplex is late on rent. I am sending the 3 days to pay or quit notice but I wonder if I can write the $50.00 late fee into that notice. How am I to let my tenant know that he is responsible to pay the late fee per the lease he signed?
Answer 1: The late fee needs to be a separate demand, which can be in the form of an informal notice to the tenant to include the late fee with the late rent, or, if necessary, a separate formal 3 Day Notice to Cure or Quit (the lease provision being the late fee obligation). However, you should be aware of Oakland’s Measure EE’s requirement of a ‘pre-notice’ notice to the tenant. The Ordinance requires that before the formal 3 Day Notice to Cure or Quit can be served for lease violations other than payment of rent, the tenant is entitled to a written warning that such a notice can be served if the violation is not cured within a reasonable period of time (which is set out in more detail in the accompanying regulations). You should review the eviction section of Measure EE, and the accompanying regulations, to make sure you proceed properly. Both can be viewed at http://www2.oaklandnet.com/Government/o/hcd/o/RentAdjustment/DOWD008793. [AOA has a Warning Notice –form 136 – which members can download for FREE on www.aoausa.com.]
Question 2: I have a tenant who is attempting to break a lease citing Civil Code Section 1946.7. I was given a copy of a restraining order against a person who has never been a tenant of the property. The tenant is currently living with a roommate not listed on the restraining order. Can the tenant break the lease without penalty under this section, even if the person they are protected from has never been on the lease and the restraining order was issued before they moved in? (Restraining order was issued in February, and the 12-month lease began end of May 2014). Only one tenant is asking to move, the roommate is being left “high and dry.” How does this affect the obligations of the roommate? Thanks for any help.
Answer 2: Having read the applicable section, it appears that the restraining order does not need to involve the premises, or that the perpetrator occupy the premises. It is broad enough to include your facts below, so it would appear she is entitled to give 30 days’ notice and terminate any further lease liabilities to you (no comment on any duty she may owe to her co-tenant, who remains responsible for the rest of the lease). The remaining tenant will likely need to get the departing tenant replaced as quickly as possible so the remaining tenant does not bear the cost of the full rent any longer than necessary, but that is not your responsibility.
Question 3: How do I go about collecting money that our company won in a judgment against a former tenant?
Answer 3: Generally, a landlord with a money judgment assigns it to a collection company, at a cost of some percentage of any amounts collected. The other option is to hire a collection attorney, by the hour, and keep whatever is collected minus the hourly attorney fees. Depending on the amount of the judgment, and the financial condition of the former tenant (i.e. how likely the former tenant can pay the judgment), it might be more cost-effective to hire the collection attorney, but that should be carefully considered and discussed with any potential such attorney. The benefit of the ‘contingency’ collection firm is you know the maximum it will cost to collect any part of the judgment. If you wanted to do it yourself, there are various resources available that can provide guidance on collecting a judgment. [AOA also has a debt collection service – Rental Owners Collection Agency – call 800-827-4262 for more information.]
Question 4: I have a San Francisco rent-controlled apartment with two tenants. Tenant A wants to leave for six months and sublet her room. It is my understanding that I would have a problem denying a sublet even though the lease prohibits it so I’m allowing the sublet. I asked for an application and credit report for the proposed subtenant and they look good. The tenants say they will have their own agreement with the subtenant. Should I ask to see it? After I approve the subtenant I’m going to write an email to all so that we are all on the same page. Can you tell me the key things I should include in the letter? Thanks.
Answer 4: The sublet area in rent controlled cities is an area of significant confusion by lawyers, landlords, tenants and judges. However, in your situation, it might be simplest to just draft a simple addendum to the rental agreement that states the facts – tenant A is leaving for a period of time and wants to sublet his part of the rental unit to subtenant 1, and landlord has no objection to the sublet, having seen the applicant’s application, and tenant B approves the arrangement, but that it is clear that subtenant 1 is the subtenant of both tenants A&B, and not the tenant of landlord, and landlord does not recognize subtenant 1 as a tenant, and everyone agrees that subtenant 1 is not and shall not become an ‘original tenant’ such that if subtenant 1 should remain in possession after tenants A&B permanently vacate, he or she shall be subject to a market rate rent increase as permitted by state and local law.
And while it’s not strictly speaking your concern, most tenants who sublet with the intention of returning to their unit and having the subtenant move out when the original tenant tells them to are not familiar with a provision of the San Francisco rent ordinance that makes such relationships subject to the ‘just cause’ provisons of the Ordinance. This means, in effect, that the returning master tenant may not be able to compel the subtenant to vacate. The solution is for the master tenant to be aware of and follow SF Rent Regulation Section 6.15 C, which provides that:
(1) For any tenancy commencing on or after May 25, 1998, a landlord who is not an owner of record of the property and who resides in the same rental unit with his or her tenant (a “Master Tenant”) may evict said tenant without just cause as required under Section 37.9(a) only if, prior to commencement of the tenancy, the Master Tenant informs the tenant in writing that the tenancy is not subject to the just cause provisions of Section 37.9. A landlord who is an owner of record of the property and who resides in the same rental unit with his or her tenant is not subject to this additional disclosure requirement.
(2) In addition, for any tenancy commencing on or after May 25, 1998, a Master Tenant shall disclose in writing to a tenant prior to commencement of the tenancy the amount of rent the Master Tenant is obligated to pay to the owner of the property.
(3) Partial Sublets. In the event a Master Tenant does not sublease the entire rental unit, as anticipated in Section 37.3 (c), then the Master Tenant may charge the subtenant(s) no more than the subtenant(s) proportional share of the total current rent paid to the landlord by the Master Tenant for the housing and housing services to which the subtenant is entitled under the sub-lease. A master tenant’s violation of this section shall not constitute a basis for eviction under Section 37.9.
Question 5: I have a written lease agreement with a single tenant. Her boyfriend moved in without notification to me. Eventually, it seems he became a tenant too. Can he be involved in a security deposit dispute? Also, the tenant has requested mediation about the security deposit dispute. How long does mediation last? How do you select the mediator?Answer 5: In response to your mediation questions, mediation lasts only as long as both parties agree to let it last. You can contact various mediation services for a mediator, though most of them charge. You can contact the San Francisco rent board and see if they provide free mediation (they do, but not for all matters, and they are easily located online). You can also contact Community Boards, which offers landlord tenant dispute resolution, including mediation, at no, or little, cost to the parties.
As for the boyfriend, he is not entitled to the security deposit unless he was added to the lease or some other agreement that allows him to be entitled to return of the deposit or the accounting. But I don’t think that will be your issue. If your tenant wants him to assist, you should have no objection, since the issues will be whether she is entitled to the return of her deposit based on the events at issue (damage, nonpayment of rent, or cleaning the unit).
Question 6: One of my apartment units was flooded due to a burst hot water pipe in the sink upstairs. Both the building and my tenant’s personal property had lots of water damage. The unit is uninhabitable until all the water damages have been fixed, which will take three to four weeks. My tenant does not have renter insurance, and my insurance will not cover the tenant’s personal properties. Any relocation expenses (hotel, food, etc) incurred by the tenant will not be paid by my insurance company.
Under the Oakland rent control rules, is the landlord required to pay relocation expenses, and pay the personal property claims? What else might the landlord be responsible for?Answer 6: Unless the tenant caused the building leak, the landlord will almost certainly be responsible for the tenant’s property damages whether the landlord’s insurance covers it or not (though I would be surprised if the landlord’s policy did not cover such claims). This has nothing to do with Oakland rent control, but is rather a matter of state landlord- tenant rules. When your tenant submits his or her claim, your insurance carrier should be notified and asked for the specific policy provision that covers such claims. You may need to consult an attorney who specializes in insurance coverage claims.
As to relocation payments to the tenant, Oakland as an ordinance governing when such payments are required, and that provision may be reviewed by going to the city’s website at http://www2.oaklandnet.com/Government/o/hcd/s/HSC/DOWD008655. Payments depend on the cause of the relocation and the length of the relocation period, and are based on the size of the unit being vacated.
Question 7: We sent a 60 Day Notice to Vacate to one of our tenants because we wanted to sell the home. But they did not want to move, so we decided that the tenants can stay another year and vacate by May of next year. The tenants are on a month to month agreement and have been there three years. Is there a form withdrawing the 60 days notice I can use under the AOA forms? Thank you.
Answer 7: Neither the landlord nor tenant may withdraw a 30–day (or presumably a 60–day) notice without consent of the other. Thus, if you and the tenants agree that the tenants will remain, a simple written statement that the landlord withdraws the notice and the tenant accepts that withdrawal and both parties confirm that the tenancy shall continue undisturbed should be sufficient.
But I note that if the unit is under eviction control, as most units in Oakland are, you would have needed ‘just cause’ to serve the underlying notice of termination and if you did not comply with the Measure EE requirements, withdrawing the notice may serve to avoid or limit potential liability for a wrongful termination of the tenancy, which can be an expensive mistake.
Question 8: We have two tenants living together in a unit. The young man’s father co-signed for them. They are now breaking up and he is vacating the unit, but she wants to stay behind (they are not a married couple). Since he has given his 30-day notice, are we obligated to allow his father out of the co-signer agreement?
Answer 8: If the agreement is month to month, it can be changed by either party with proper notice (30 or 60 days, depending on the nature of the change). So, if your rental agreement was month to month, the guarantor can withdraw his guarantee with such notice. Of course, you may elect to require the remaining tenant to have a new guarantor as a condition of continuing the tenancy.
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.