Question 1: My tenant has given written notice to vacate a month to month rental. Her son was given permission to be added as an additional household member as a live-in aide. He was never added to the rental agreement and my tenant is having difficulty getting him to leave. My question is, if she vacates the property and he stays, how do I proceed to get him out of the unit? I’ve never received any money from him or added him to the lease.
Answer 1: Generally, if a subtenant (or guest or other person in possession through the master tenant) remains in possession after the master tenant’s tenancy has terminated, either by notice from you or by notice from the master tenant, the subtenant is holding over and can be subject to an unlawful detainer action without further notice. However, in each case, facts may exist which alter or complicate the general analysis, so you may need specific legal advice if the family member remains in possession. It might be helpful to send the tenant a notice to explain that any one remaining in possession after she vacates will be considered a holdover tenant subject to immediate eviction action.
Question 2: My parents had a live-in caretaker in their San Francisco home for some years. My parents recently passed away and the caretaker is still living in the house not paying rent. We have verbalized that this is to be a temporary situation. We would like to know the best legal way to keep the situation as “not a tenancy.”
Answer 2: Since housing in San Francisco is so difficult to find or afford, your caretaker may seek to stay. If he or she does, it may be a factually and legally complicated matter, but will mostly depend on whether the caretaker can qualify as a tenant or not. If he or she is considered a tenant, then various state and local tenancy rights will attach to her occupancy, including the right to stay absent a ‘just cause’ ground to terminate (if the home is covered by the San Francisco rent ordinance.) However, as a single family home, it is likely exempt from rent control, so even if the caretaker is deemed a tenant, he or she would be subject to market rate rent (assuming he or she did not move in before 1996). You may need specific legal advice before you can properly proceed, though if the caretaker is a family friend, you will hopefully be able to ‘work it out.’ However, you should be careful to avoid violating the local ordinance, even innocently, as it could give the caretaker grounds to allege a ‘wrongful eviction.’ The better practice with such situations is to document the relationship of the caretaker in terms of their occupancy, clearly and carefully in advance, which may require legal advice to make the agreement as enforceable as possible.
Question 3: We have tenants who are a couple with young child. They have domestic issues and we have given them several warnings following nuisance disturbances. After another complaint about fighting (involving profanity, vulgar references to body parts, and physical commotion), we delivered an email warning stating, “Should we receive another report of disruptions, we will be forced to serve you an eviction notice. Please consider this a one-time and final warning.”
Shortly after that, the police were called to the apartment and issued a report that stated “During an argument, SUS punched VIC causing visible injuries.” We want to evict them. Do we have to give them 30 day notice?
Answer 3: First of all, you indicate there is no rent control on the unit. I assume you are aware of the recent Alameda rent and eviction control law that replaced the various moratoriums that had been in place since last fall.
Assuming the tenancy is not subject to eviction control, you would still need to be aware of and comply with Civil Code Section 1161.3, which prohibits terminating a tenancy where the tenant was a victim of domestic violence, as long as the perpetrator is not a tenant of the unit.
If section 1161.3 does not apply, you could proceed via a three day notice for nuisance or a standard 60 day notice since they have been in the unit over one year.
If the unit is subject to the new ordinance, the above options would be close to the same, but there are some restrictions on ‘no cause’ evictions that you would want to be aware of.
However, given the nature of nuisance – a domestic violence dispute – you may want to reach out to the victim and see if she wants to continue the tenancy, even if Section 1161.3 does not apply, as the humane thing to do.
Question 4: If a tenant’s lease is coming to an end, how much notice do we need to give them that we will not extend their lease?
Answer 4: There is no requirement that you notify the tenant that the expiring lease will not be renewed (which is, I think, an oversight in the statutory system). However, I would let the tenant know as soon as possible (and ideally 60 days ahead), that the lease will not be renewed, and they will be holding over and subject to unlawful detainer if they remain in the unit after the lease expires. This will help avoid any confusion on the tenant’s part, and hopefully avoid some unnecessary drama that is likely to occur when the tenant learns they have to suddenly vacate the premises.
Question 5: A year ago, two people signed a year lease on our Oakland rental unit and they were qualified based on both incomes and credit score. Now a year later, one person is leaving and the second person would like to stay with a new roommate. The person staying would not meet the original qualifications requirements to rent from us. Does the person staying need to go through the qualification process again for renewal to sign a new lease? Or would we let the current lease go from month to month and require both people on the lease? And if this person does not meet our original qualifications, can we deny the lease renewal? How should we change the current lease to remove the person leaving?
Answer 5: The remaining tenant is entitled to remain without requalifying, and may replace the departing tenant with a new roommate. The Oakland eviction control law does not provide as much detail on the tenant replacement concept as the San Francisco ordinance, but one can reasonably presume they will be treated similarly by the courts. Under Measure EE, the tenant is entitled to replace a departing tenant, as long as the tenant submits the request in writing and gives the lessor 14 days to respond. The reasons for rejecting a proposed replacement tenant are generally limited to the tenant’s creditworthiness and tenancy history (evidence of violent history, evictions etc).
The remaining tenant does not need to ‘re-qualify,’ and there is no effect on the rental agreement (other than the departure of one of the two original tenants). It is basically the same arrangement, with a new occupant. As to documenting the departing tenant, you and the remaining tenant and new tenant can add a lease addendum confirming that tenant X is vacating, and Y is the replacement tenant, but that Y is not an original tenant and when Z (the remaining original tenant) vacates, the rent will be subject to increase to market rate pursuant to the Costa Hawkins law.
Question 6: I have a Walnut Creek tenant who regularly bounces rent checks. Am I legally permitted to require a tenant to pay by cashier’s check after their check bounces a certain number of times?
Answer 6: Since the rental is not under rent control, you can terminate a month to month tenancy for no cause, and can certainly do so based on the tenant’s failure to timely pay rent. However, pursuant to Civil Code Section 1947.3, you can also require the tenant to pay rent in cash going forward for the next three months, after the tenant has bounced a check. However, you have to provide the tenant with notice, as outlined in that section, in order to compel that change in payment.
Question 7: With the rent increase that I will be giving my Alameda tenant, I know I must offer a one year lease. My understanding is that I can offer a one year lease and it can be a fixed term lease (X/X/16 to X/X/17) with no month to month option at the expiration of the fixed term lease. Is that accurate? I’m told it’s not.
Answer 7: The language of the new ordinance regarding offering current or potential tenants a fixed term lease is not, as the courts say, a model of clarity. However, it does appear that all tenants are entitled to be offered a one year lease at the time they are given a rent increase, unless the tenant is in default already of some rental obligation. What happens at the end of the one year lease (assuming the tenant accepts), will depend on the status of the ordinance at that time, but if it remains the same, it appears the lease would revert to a month to month tenancy, on the same terms as the expired lease, but only month to month.
Question 8: Our rental building water heater went out on Friday and we were not able to make a repair until Monday. All the units had no hot water over the weekend, and now some want to be compensated. Do we have to compensate them?
Answer 8: If the tenants are denied hot water, they are likely entitled to some rent reduction since hot water is a required element of the tenancy, However, the lessor is entitled to a reasonable time to effect a repair, and it sounds like you acted as quickly as reasonably possible, so a rent reduction may not be, legally, required. But if it is, the question is ‘how much.’ Perhaps try to put yourself in their shoes and estimate what that lack of hot water would be worth to you, or, ask them to suggest what they think it is worth, and then try to reach something that you both agree is reasonable. The alternative to a reasonable agreement is likely to be aggravation for one or both parties (e.g. small claims action over minor amount, unhappy tenant who will not be as motivated to be a good tenant….etc.).
Question 9: I have tenants that have been warned several times about the collection of “junk” on the property, as the yard and garage are full of items that are considered “junk.” This causes infestation, and I am concerned about fire hazard. What are my rights as owner?
Answer 9: The tenant can be served a three day notice to cure lease breach, or vacate, if you have a lease provision that requires the tenant to maintain the premises (which most leases do). Alternatively, a three day notice to cure nuisance or vacate would be an option, since the tenant is responsible for not creating conditions that would result in health hazards, including allowing vermin to collect, or a fire hazard to exist. If the tenant is month to month, and outside a rent control city as yours is, you can also terminate the tenancy by service of a 30 or 60 day notice (depending on if the tenant has been in the unit a year or more).
ALERTS AND UPDATES: In last month’s article, I provided a synopsis of recent amendments and changes to existing local rent control laws in the Bay Area, and an outline of recently enacted, and failed efforts to enact, rent control laws in various cities around the Bay. However, I overlooked the recent legislation adopted December 2015 by the Mountain View City Council, which requires landlords who rent three or more dwelling units housed in a single structure to offer tenants a written lease with a minimum term of either six months or one year. The tenant has the option of choosing a written lease or a month-to-month tenancy and, if a written lease is chosen, could select the minimum lease term. The landlord and the tenant can also agree to a mutually acceptable term that is different from the six month and one year term options.
In addition to providing tenants with a minimum six month or one year written lease, landlords are required to notify their tenants of this ordinance. The landlord must provide this notice either in writing or electronically if the application and/or lease are processed electronically. The City has translated a notice into Spanish, Chinese and Russian for use by landlords. The landlord must provide the following notice to current and prospective tenants:
The Mountain View city code provides you with the right to a written lease. Landlords must offer tenants the option to enter into a written lease with minimum terms of six and twelve months. It is the tenant’s choice whether to enter into a written lease or a month to month tenancy. Further information is available on the city’s website (www.mountainview.gov/rtlo).
When the lease term ends, the landlord and the tenant will decide whether or not to renew the lease. If the landlord and the tenant both desire to renew the lease, the landlord is obligated to comply with the ordinance and offer the tenant a written lease with minimum terms of six months and one year. A landlord does not have to offer a new lease at the end of a current lease
A violation of the ordinance may provide the tenant with a defense in a legal action brought by the landlord. In addition, a violation of the ordinance is an infraction. An infraction is an offense punishable by a fine. The fine is $100 for the first violation, $200 for a second violation within one year and $500 for each additional violation within one year.
For questions regarding the Right to Lease Ordinance, contact the Neighborhoods Division at [email protected] or 650-903-6379.
Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 24 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