This article was posted on Monday, Aug 01, 2016

Question 1:  I verbally gave my renter permission to paint one room of my unit, which was originally white, to a color that they’d prefer, without stipulating any conditions. They painted the entire interior. Now that they are moving out, I want to return the interior spaces to their original white. Can I charge my renters via their security deposit for the re-painting of my unit to return the unit to its original color/condition, since they exceeded the authority I gave them to paint one room?
Answer 1:  It would matter what condition the prior paint was in, how long it had been since it was painted by you, the color the tenants painted it, and who the court believed as to the anticipated dispute when the tenants say you approved their request to paint the entire unit without conditions. A small claims court might just split the difference, and, unless the color they painted was obnoxious (e.g. purple or fluorescent orange etc.), the court may just say the tenants improved the unit and so no deduction allowed. It is difficult to predict from the minimal facts presented. I’d suggest speaking with the departed tenants and try to reach an agreement and save everybody a trip to small claims And remember, you have 21 days from the date the tenant moved out to account for the SD and return any balance, per Civil Code 1950.5.

Question 2:  We currently do not charge a screening fee to our potential tenants. If we change that policy, will we need to charge every single applicant in order to avoid discrimination?
If an applicant does not qualify, are we obligated to refund the screening fee? If someone pays us a screening fee, are we obligated to give them a copy of the report if they do not meet our qualification? As always, thank you for your assistance.
Answer 2: You may charge a fee for the cost of the credit check, and there would be no reason not to charge each applicant you seriously consider. The fee is non-refundable but can not exceed $45.00 currently, and you should only charge the applicant the amount of the cost to you. The statute allows you to charge for your time, but that opens up issues of the time spent and the value of it, for any rejected applicant who wants to make that an issue.

And if you reject an applicant based on information in the report, you have to provide them with an ‘adverse action’ letter (which you can get via the AOA forms list). There is no reason not to also provide them a copy of the report, though it is not legally required.

Question 3:    My lease with my San Francisco rent-controlled tenant says no subleasing allowed. I just found out that the tenant has moved out and has subleased the apartment to someone else. The utility bill and the Comcast bill are now in the new tenants’ name.  What can I do to get them out quickly?
Answer 3: Of course the situation will be affected by your rental terms regarding subletting or assignment, but assuming you have such provision,  you likely have a choice between seeking an eviction based on the San Francisco Rent Ordinance provision Section 37.9(a)(7) (“The tenant holding at the end of the term of the oral or written agreement is a subtenant not approved by the landlord”), or seeking to impose a ‘Costa Hawkins’ rent increase to current market rate (the state law that allows a market rate rent increase on remaining occupants where the ‘last original tenant’ no longer permanemently resides in the unit). However, both are ‘tricky,’ and so should be pursued with care, and competent counsel’s assistance.

Question 4: I attended the recent AOA seminar on tenant screening, but forgot to ask the following question.  If you had two equally qualified applicants (let’s say one applicant is an older couple, or family with kids vs. couple with no kids), how do you select at that point.  Can you select the one that you had a better feeling about?
Answer 4: Thanks for attending. As for who to select, ideally, I suppose, it would be the one first in line (between equally qualified applicants). If the one ultimately selected is based on a ‘feeling,’ the one rejected may claim the feeling was based on a discriminatory reason (e.g. the family applicant made me nervous that they would be loud, etc.) There really is no easy answer in these situations, which is tough, but if you don’t obviously discriminate against an applicant based on a protected category, it is unlikely the rejected applicant will seek any sort of remedy.

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Question 5:  Can you provide a checklist or summary of the mandated forms that need to be sent to a Dublin tenant with the 60 day notice to move out form? Do I have to get a “return receipt” and mail certified?
Answer 5:  A standard 60 Day Notice to Terminate the Tenancy may be served by certified or registered mail, which adds 5 days to the 60 days, but it does not require ‘return receipt.’ It may also be served by personal delivery to the tenants, or by posting and mailing the notice if the tenants are not home when you try to personally serve them.  And unlike San Francisco, for example, which requires a Notice of Termination to include a form provided by the local rent board, the town of Dublin has no additional requirements that I am aware of, and so the AOA 60 day notice form should be fine.

Question 6: We currently manage a Red Bluff home which is rented to an elderly couple with no children, and which has an in-ground pool in the backyard. The tenants have minor grandchildren who come to visit. Is the owner of the home required to install a fence around the pool with a locking gate even though the yard itself is fenced? Or is it required that the owners install an alarm on the door leading to the backyard where the pool is located?
Answer 6: I would direct that question to the homeowner’s insurance agent, since if there is an incident or tragic accident, it will be the insurance company that will likely pay the costs, and so it has a vested interest in making sure the homeowner is compliant with whatever building codes apply to in-ground pools in Red Bluff. As for state law, the owner has a duty to comply with  Health and Safety Code 115922, which provides a detailed outline of the seven drowning prevention safety features the pool must be equipped with at least one of when built, or whenever a permit to remodel an existing pool is sought. You can also get additional information from the Department of Health Services’ Web site, which includes approved pool safety information available for consumers to download.

Question 7: Are we legally required to provide air conditioning to our tenants if it is not required in the month to month current lease.
Answer 7: Maybe in Phoenix. But unless there is a local law to that effect (which I have never heard of), you have no such obligation in California.

Question 8: We own a duplex in SF, in which both units are rented and the tenants have lived there for many years. One of the tenants is often late paying rent, and the last 4-5 months she has post-dated her check to the middle of the month and sometimes includes the late fee. The rent check for this month was returned ‘Account Closed’. What are the steps to evict her? What hoops must we jump through and what pitfalls should we look out for?
Answer 8:  If the tenant has failed to pay the rent, a non payment of rent eviction is one of the least complicated for San Francisco evictions. You start with a proper 3 Day Notice to Pay or Quit, but need to make sure you comply with state and local law on the language of the notice and method of service. If the tenant fails to cure a proper notice by the third day, an unlawful detainer can be filed and served, and the case then set for trial once the tenant responds. If the tenant does not respond, you will win by default, and the sheriff will evict a short time later.

Question 9: According to the lease agreement, the stove/oven was made an ‘as-is’ appliance and states the owner may or may not fix it if it quits working. The City came in and noticed the oven door isn’t closing properly and now wants the owner to fix it. Does the owner have to fix the appliance or may they opt not to?
Answer 9: If the city has ordered a repair, then a repair must be made. A working stove/oven is generally considered a basic amenity of a rental, though it is not necessarily a habitability requirement under Civil Code Section 1941.1 (which requires the unit to have a list of items in working condition but which does not mention a stove or oven. The closest is probably subsection (2), which requires “Plumbing or gas facilities that conformed to applicable law in effect at the time of installation, maintained in good working order.”

However, in San Francisco, and other rent controlled cities, the amenities provided at the beginning of the tenancy are considered required elements of the tenancy so long as the tenant resides there, regardless of a lease provision to the contrary. Failure to restore the service will entitle the tenant to a rent reduction commensurate with the value of the service.

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