Question 1: My tenant has rented my house for over six months and has not notified me of any issues but is now withholding rent. She said I did not provide her with lead information, and I realized that my new lease agreement did not contain a lead disclosure or pamphlet. I am getting one to her now. There is no lead in house as it has been remodeled within the last 20 years, but can she withhold rent for that issue? Can I be sued for not having provided the disclosure information with the lease agreement?
Answer 1: The issue of the non-lead disclosure is particularly complex, as the federal statute seems to make it clear that the disclosure must be provided if the house is built before 1978, regardless of remodeling since then. The penalty for failing to do so, in terms of both the tenant’s right to claim damages and the state or federal housing agency’s right or interest in bringing an enforcement acton, is difficult to predict. Whether a tenant can withhold rent in response to the failure to provide the disclosure has not, to my research or personal knowledge, ever been established by a court decision. However, the actual existence of lead-based paint, particularly where it is in poor (e.g. flaking or peeling) condition, will undoubtedly provide the tenant with significant claims against the landlord, particulaly where there are small children in the home.
Below is an excerpt from a legal publication that discusses the federal government (HUD)’s position. From this analysis,one result is that late disclosure is better than no disclosure.
‘In January 1998, the EPA issued the Real Estate Notification and Disclosure Rule Interim Final Enforcement Response Policy, which provides that the penalty in an enforcement action for first time violations depends on whether the violation is characterized as egregious or nonegregious. An egregious violation involves the failure to comply with the Disclosure Rule for a housing unit occupied by a young child or a pregnant woman. A violation is nonegregious when no child or pregnant woman occupies the housing unit.
The EPA will bring civil penalty actions for egregious violations, and issue notices of noncompliance or warning letters for nonegregious violations. Moreover, anyone who leased or purchased a home covered by the Disclosure Rule can bring a civil action against the seller, landlord or agent for failing to disclose the required information for treble damages. 42 U.S.C. § 4852d(b)(3). Since the EPA began enforcement of the Disclosure Rule in 1997, it has brought four civil penalty actions, and issued numerous warning letters to real estate agents, landlords, brokers, sellers, and agents for failing to disclose lead-based paint information. So far, the civil penalties sought by the EPA have totaled over $400,000.
Owners should also be aware of a new rule recently finalized by the EPA regarding lead-based paint hazards. This new rule generally requires renovators of pre-1978 housing to provide the owners and occupants of that housing with information on lead hazards.’
Question 2: The apartment is in Santa Cruz County and the rental agreement is month-to-month. If a guest is staying over 14 days cumulative or longer during any 12 month period, without the owner’s written consent (AOA month-to-month Rental Agreement Form 101), and the guest is a girlfriend/boyfriend of a tenant (but they are not married or registered domestic partners), would the landlord be required to accept the girlfriend/boyfriend as a new tenant if she/he does not meet all the screening criteria?
If the tenant wants the girlfriend/boyfriend to be added to the rental agreement can the landlord require the new applicant meet all the screening requirements that other prospective applicants must meet? If the girlfriend/boyfriend has a dog and we do not allow dogs can we deny adding this applicant to the rental agreement because of the dog (provided it is not a companion animal or assistance animal)?
Answer 2: The landlord can enforce the rental agreement provision regarding guests and subletting, and you can give the tenant a choice between complying with the lease terms (i.e. either stop exceeding the overnight guest limit, or submitting the boyfriend/girlfriend as an applicant to become a co-tenant or subtenant) or terminating the tenancy. Should the tenant prefer the sublet-co-tenant route, you can then review the applicant essentially the same as you would a new tenant applicant.
And if you do not accept pets, you can maintain that position here, unless, as you suggest, the pet is a necessary companion animal to a disabled person (evidence of which can be required from the applicant or tenant before approval of the animal is given).
Question 3: Are we required to give 60 Days or can we give a 30 Day Notice to Move Out in the following situation: Three original tenants in our non-rent control building signed the month-to-month rental agreement (AOA form 101) which was effective 9/21/2015. One of the original tenants gave her notice to move out effective 12/31/2016 and moved out. We accepted an application and approved a new tenant to move in with the original two remaining tenants. We had everyone (the departing, remaining and new tenant) sign the Room-Mate Addendum to Lease/Rental Agreement (AOA form 124) to add the new tenant on 12/29/2016. On this form under item 2 it states “incoming tenant recognizes that he/she is entering into an agreement which is retroactive to the original date of the agreement.” We used this form instead of having everyone sign a new rental agreement because we (the landlord) never received possession of the apartment. The tenants’ personal property was still in the apartment and it would have been difficult to determine if there should be deductions from the security deposit due to damage or cleaning with their possessions in the apartment.
If we are required to give 60 days’ notice, is there another way we could have handled this so that we would only be required to give 30 days?
Answer 3: Any tenant in possession over one year is entitled to a 60 day notice, so that would apply in your case. Not sure how you could have structured it to avoid that, other than, perhaps, terminating the original agreement entirely, and entering into a new rental agreement with the remaining tenants and specifying that only 30 days’ notice would be required to terminate from that point until the new one year period passed. There is a statute (Civil Code 1946) that allows the parties at the time the lease is created to reduce the amount of notice of termination to 7 days, but I have never seen it used. Civil Code 1946 – “It shall be competent for the parties to provide by an agreement at the time the tenancy is created that a notice of the intention to terminate the same may be given at any time not less than seven days before the expiration of the term thereof.” However, the key is that the agreement regarding the length of notice required be entered into when the lease is entered into. In your case, it would be a matter of interpretation by a court whether a new lease was entered into when the first departing tenant was replaced. If the remaining tenants and you entered into an agreement that the tenancy was a new tenancy with a new lease, then a court would likely accept that as compliance with Section 1946.
Question 4: What is the Berkeley Rental Housing Safety Program (RHSP)?
Answer 4: The RHSP is a provision of the Berkeley Municipal Code that requires owners of rental housing to conduct an annual inspection to insure the building or unit meets certain housing standards, the details of which are set out on a checklist of housing components and services. Section BMC 12.48.050 states as follows:
A. All owners of single family residences, duplexes, apartment houses, and hotels not otherwise exempt pursuant to subdivision C of this section shall annually certify that their rental units(s) meet housing safety standards established by the City or seek an inspection by the City pursuant to subdivision B of this section. Self-certification shall be made in the manner set forth below:
1. Owners shall inspect each rental unit owned using the housing safety standards checklist form required by the City.
2. Owners shall provide a copy of the completed Rental Housing Safety Program Certification Checklist to each tenant whose rental unit has been inspected. If the owner is unable to certify compliance with all applicable provisions of the checklist, including by reason of refusal of entry by the tenant, in addition to providing the completed form to the tenant, the owner shall submit a copy of the completed checklist to the City by mail or personal delivery. Owners shall provide the copy of the checklist to the tenant and, if applicable, a copy to the City within five days of completing the inspection and no later than July 1st of each year beginning with July 1, 2004.
Question 5: I have a San Francisco rental unit in which the tenants have lived since 2013 without a rent increase. What is the cumulative rent increase that may be imposed? There has also been no payment of interest on the security deposit. What is the cumulative interest due?
Answer 5: You are referring to the concept known as ‘rent banking.’ A landlord is permitted to impose an annual allowable increase each year. The amount of the annual allowable increase is set by the Rent Board and changes on March 1st each year. When a landlord imposes the annual allowable increase, the effective date of the increase is known as the tenant’s “anniversary date.” If the landlord does not impose the allowable increase each year on the tenant’s anniversary date, the landlord can “bank” the unimposed increase and impose it at a later date, provided that the landlord follows the banking rules. Simply stated, the banking rules provide that a skipped annual increase is “banked” when it has been at least 24 full months since the last annual increase was imposed. Any rent increase notice that includes a banked amount must explain which portions of the increase are attributable to banking and the dates upon which said banking is based.
The SF rent board’s website at the address below provides a rent increase sheet for all years, and the security deposit interest rates for all past years, from which you can calculate the banked increase available and the deposit interest due the tenant.
As for the security deposit interest, Chapter 49 of the San Francisco Administrative Code requires landlords to pay interest annually on deposits held on residential property. Landlords are required to pay interest on all monies held over one year, regardless of what the deposit is called. Interest payments apply to all residential rental units in San Francisco, including those exempt from the Rent Ordinance, with one exception: where the rent for the unit is assisted or subsidized by a government agency, the interest payment requirement does not apply.
Interest must be paid every year on the tenant’s “annual due date.” For tenancies beginning after September 1, 1983, the annual due date is the same day and month the landlord received the deposit from the tenant. (If the tenant moved in and paid a deposit before September 1, 1983, interest was due on September 1, 1984 and every September 1st thereafter.)
See the following Rent Board website link for more information, and a sheet stating all prior interest rates.
Question 6: We own a condo that we rent in Oakland under Measure EE. I know I can increase the rent using their version of the CPI. But can I increase it even more as I need to partially recover the 10K special assessment this year for water damage and a new roof? I know I can do some things under Measure EE, but finding the answer on their web site is like pulling teeth, everything you don’t need to know and nothing you need to know.
Answer 6: Since the unit is a ‘condo,’ it is likely exempt from rent control (by state law, subject to a few exceptions). There is an argument that you have to submit a petition to the rent board to get a declaration of exemption, but that might be too strict a reading of the ordinance and regulations. You can contact the rent board to make sure the unit is exempt or if they believe seeking an exemption is required. Determining the exemption really is your first inquiry, since if exempt, you don’t need to worry about the CPI or pass-through restrictions.
Question 7: Is it legal to rent to non-residents (illegal) with a foreign passport as the only identification?
Answer 7: It is not against California law to rent to someone who only has a foreign passport as identification. In fact, you may not even inquire as to the applicant’s immigration status. Pursuant to Civil Code Section 1940.3, (b) No landlord or any agent of the landlord shall do any of the following: (1) Make any inquiry regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property.
Question 8: Our long-time tenant got very sick, and her son called to say she would be moving out in the next few weeks. He then called to say they would need more time to get moved out (another week or two). We have heard nothing from them since, and since they have not paid rent we posted on the front door a 3-Day Notice and also sent one in the mail. What are our rights at this point?
Answer 8: Assuming the three day notice is properly worded and was properly served, you can proceed on the three day notice if the tenant will not communicate. But I would make more effort to have the tenant actually communicate their intentions before incurring the expense of initiating an unlawful detainer. But if they refuse to communicate, you may have no choice but to proceed to evict the tenant via the unlawful detainer process.
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.