This article was posted on Saturday, Aug 01, 2015

Question 1: I have a tenant who moved in August 2014.The lease is for one year. He has now violated the lease three times. First time, I witnessed and spoke to him about installing a curtain rod when the lease clearly says it is not allowed. Second violation was that he was seen with a cat in and around his unit by my contractor and apartment manager in October 2014. He was warned by both to get rid of the cat; he apologized and said he would. Now, the cat is back and was observed going in and out of the apartment by two witnesses (including the building manager). The lease clearly says NO PETS OF ANY KIND are allowed on the property. This person lies and violates his lease. I need to evict him but want to make sure I’m not vulnerable. Do I need to give 60 day notice or can I give 30? May I use his deposit to do a professional deep clean of the apartment upon his departure and repair damage to woodwork from his curtain rod? Thank you for your help.
Answer 1:  A tenant who violates the lease is entitled to a three day notice to cure the violation or be evicted. So, for the pet and the rod, you could start there. You may not terminate the lease until it expires unless you are terminating it after the tenant has failed to cure a breach after receiving proper notice. Incidentally, there is no rule that says you cannot give a 30 Day Notice to Cure or Quit, though I doubt any landlord would be so accommodating to a tenant in breach of the lease. AOA has forms that you may review and possibly use for your matter. Just be sure to properly serve the notice on the tenant (personal service attempt, and if no one home, post it on the door and mail it to the tenant).

As to use of the deposit, the statute governing use of security deposits is Civil Code 1950.5, which I always recommend owners review regularly, or at least as a tenancy is approaching its termination, so the owner can be sure he or she is in compliance with the rules regarding use of the deposit, and providing the tenant the right to the pre-move out inspection, and then finally, the accounting of the deposit and return of any amount due. But in general, if the tenant left the premises in need of cleaning, that is an expense you can charge against he deposit, as would be the cost of any damage beyond normal wear and tear such as damage to woodwork.


Question 2: Would you kindly remind me who pays repairs in the rental unit? The tenant has a plumbing issue in the kitchen with the garbage disposal, and the dishwasher is experiencing some back-up as well.  Does the landlord pay the entire cost of repairs?  How do you establish who pays for what?
Answer 2:  If the tenant was responsible for the necessary repairs, by abusing the premises or systems, the tenant is responsible for the repair costs. Otherwise, it is the landlord’s responsibility to insure the premises remain habitable, including plumbing systems. In non-rent controlled cities (Fremont does not have a comprehensive rent ordinance so is considered a non- rent-controlled city) it would be possible to change a month-to-month rental agreement to remove the landlord’s obligation to provide a garbage disposal or dishwasher, as these are not required to maintain the habitability of the premises (working plumbing generally, yes, but specific items like laundry or dishwasher are not part of the essential plumbing).

 Question 3: Two roommates are moving out of my four bedroom rental, and have replacements to continue renting the house. I found AOA form 124A – the Roommate Addendum but I’m not sure how to handle the security deposit. They have not asked for it back, so I’m assuming they have worked it out amongst themselves. They are not the cleanest tenants, and don’t fix anything, so I’m anticipating damages/cleaning and that the entire deposit won’t be returned in the end.
The home is around the corner from a University, so I’m hoping they all continue to replace themselves for years to come. Any suggestions?
Answer 3:  That (the handling of the security deposit among rotating tenants) is not an uncommon problem. For each new occupant, you can have them sign an addendum that they understand how much the deposit is, that the security deposit (SD) is held as one common SD for the entire unit, and the entire SD will be accounted for when the last tenant vacates the unit. In the meantime, it is the tenants’ responsibility to make necessary arrangements with the master tenants or the tenants they are replacing to do their own security deposit transfer, and the departing tenant and the new tenant should sign an agreement as to how much of the departing tenant’s security deposit will be returned to the departing tenant, and the balance of that departing tenant’s SD will be paid by the new tenant, who then is entitled to the return of the deposit at the end of the lease term, or when the new tenant moves out, just repeating the scenario as the tenants rotate through.

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You could, as a courtesy, offer to do an inspection before the departing tenant leaves and offer your estimate as to whether any deductions to the deposit would be made at that time, and the new tenants can make whatever ‘deal’ they think appropriate with the departing tenant about that intended deduction. You could also make the deduction, and then require the amount deducted be replaced by the remaining tenants. 

Question 4: In screening a potential tenant, is it allowable to ask for tax returns to verify income? And what is the allowed amount that can be charged as an application fee to rent?

Answer 4: You must have missed the recent AOA seminar on screening tenant applicants.

As for tax returns, like much of the information landlords would like from tenant applicants, it’s okay to ask, as far as I have been able to determine, but the applicant can refuse to provide them (which I suspect most applicants will, due to the extremely private nature of tax returns in most people’s perception). But then you are not obligated to process the application either. If the tenant is intending to pay the rent with other than taxable (though legal) income – e.g. from a tax-free source of income (a municipal bond trust account, perhaps) –  I suppose the tenant could argue that her tax returns are not relevant, and that failure to consider her application on that basis could amount to ‘source of income discrimination.’ However, I am not aware of any such argument having been heard by the courts in California.

The maximum amount that can be charged currently as a screening fee is $45.99. But please be aware that the fee can only be used for the actual cost of the screening. In other words, you can’t charge several applicants the fee and not pay the fee to the screening service or credit reporting service. You must provide the tenant with a receipt of those costs, in addition to a refund of any and all unused portions of the fee. The applicant should be advised the applicant is entitled to a free copy of any credit report if one is obtained during the screening and before the report is run. And the landlord must provide a disclosure of the screening fee rights either in the rental application or by separate disclosure prior to receiving a screening fee. 

Question 5: May I charge my Fremont tenant extra if I allow him to have a pet?
Answer 5:  If your tenant is month-to-month, and you agree to a pet, you can increase the deposit to up to twice the amount of rent, by proper service of a notice of change of terms of tenancy. If the tenant is on a term lease (for example, and most commonly, a one year lease), the lease will control whether the tenant may have a pet or whether you can increase the deposit. The lease likely says ‘no pets without the landlord’s permission,’ which permission you could condition on an increase in the deposit. Of course, if the ‘pet’ is a ‘service animal’, as described in Civil Code Section 54.1, you may not increase the deposit or place other conditions on the tenant’s right to have a service animal. Similarly, if the pet is a ‘comfort pet’, the right to increase the security deposit may not apply, though the rules are not as clear as the service animal scenario. Comfort animals are related to a disabled tenant’s request for a ‘reasonable accommodation,’ and whether an increase in the security deposit would be reasonable or not may depend on the specific facts of the tenant’s situation. 

Question 6: What are the key differences between San Francisco’s and Oakland’s requirements for owner move-ins?
Answer 6: The main differences are the lack of a relocation payment requirement in Oakland (SF can require over $20,000), the slightly higher ownership percentage (33% in Oakland v. 25% in SF), and the more easily established protected tenancy (5 years and elderly or disabled in Oakland v. 10 years and elderly or disabled in SF). Two other big differences are that Oakland allows a qualified relative to use the OMI route, whereas SF requires that the owner be in occupancy or simultaneously seeking occupancy, and the continued exemption from the rent ordinance for an Owner-occupied 3 unit or less building in Oakland (after one year of occupancy) – SF removed its owner-occupied exemption about in 1994 by voter initiative. 

Question 7: One tenant has been complaining that the upstairs neighbor is making too much noise in the morning hours since the complaining tenant needs to sleep during the day. Am I required to help the tenant with the noise complaint?
Answer 7: You first have to establish whether the upper tenant is behaving unreasonably, and creating a nuisance, or if your building is in some way deficient in its construction and separation between the units in allowing an unreasonable amount of noise to penetrate between the units. Assuming neither of those are to blame, you can contact the upstairs tenant and request that the tenant be considerate of the lower unit tenant’s circumstances (of course, and that has probably already been done). It is also important to note that the complaints from the lower tenant are for noises made during hours normally associated with active use of an apartment – the morning hours.  If that does not help, you can try to install some sound-proofing elements to the two units (for example, carpet on the upper unit, sound-dampening ceiling tiles on the lower unit). If that is not an option, for cost or other reasons, then you will likely either have to let the tenants work it out, as long as it does not rise to a dispute requiring third party intervention (e.g. the police) or, if the upper tenant is the tenant you value less, terminate the upper unit tenancy (if month to month).

Ultimately, the lower unit tenant may choose to move out and find more suitable housing. 

ALL READER’S NOTICE:   I have received several recent inquiries over the impact of a state fire and smoke alarm law that takes effect July 1, 2015, and in response AOA sent an ‘all members’ email on June 29, to explain the issue. I reprint that email below for those members who missed the email alert.

It has been brought to our attention, that there is still some confusion regarding the new smoke alarm requirements, pursuant to Health and Safety Code Section 13114. We would like to provide the following clarification, from the state Fire Marshall’s website, for all our readers who are confused or curious about the effects on their property of the ‘fire and smoke alarm law’.

For Consumers/End Users:

1. Existing installed operable/in working condition smoke alarms are NOT required to be replaced.

2. For all dwelling units intended for human occupancy for which a building permit is issued on or after January 1, 2014, for alterations, repairs, or additions exceeding one thousand dollars ($1,000), the permit issuer shall not sign off on the completion of work until the permittee demonstrates that all smoke alarms required for the dwelling unit are devices approved and listed by OSFM.

3. By January 1, 2016, owners of a dwelling unit intended for human occupancy in which one or more units is rented or leased shall install additional smoke alarms, as needed, to ensure that smoke alarms are located incompliance with current building standards. Existing alarms installed need not be replaced unless the alarm is inoperable.

For other questions relating to this new law or the placement of the devices, please contact your local enforcing agencies. For more information please visit the State Fire Marshall’s website at: