Question 1:  We have a no-smoking clause in our apartment leases in Campbell. One tenant has smoked for years, and we have not enforced the clause. We have had discussions with him a number of times about his smoking, and asked him to not smoke on the premises. He continues to disregard the clause and our requests. We used the AOA rental agreement form, with clause 23 regarding NO WAIVER: Question, can we enforce this clause at this time? His smoking habits are impacting the rest of the building. Thank you.Answer 1:  You can send him a final warning that the no smoking clause will be enforced, despite your prior history of essentially not enforcing it. The ‘no waiver’ clause is usually pretty reliable in terms of courts upholding it, but I would send him a new and clear warning letter that the provision will be enforced beginning on a specific date. If he violates it, you will then be in good shape to take action. If the unit were in a rent controlled city, such as Oakland or Berkeley, the situation might be less clear. A tenant who was allowed to smoke, even in violation of a lease provision, would likely claim that right as a ‘housing service’, which might require a rent reduction if terminated. It is not really clear how a rent board might handle such an issue, and I would be happy to hear from any reader who has experienced that situation.

Question 2:  My tenant did not pay rent this month and I believe she has abandoned the apartment. For the “Notice of Belief of Abandonment”, what date can I use for termination of the agreement. And for the “Notice of Right to Reclaim Abandoned Property”, what would be the proper date for me to fill on the form for disposal of the possessions?
Answer 2:  The Notice of Belief of Abandonment can be served with the Notice of Right to Reclaim Abandoned Property, so they run together. However, without knowing what is left in the unit, you would not be able to fill out the form that requires a description of the property. One suggestion is to deliver a Notice of Intent to Enter, for the purpose of insuring the tenant is not inside the apartment incapacitated (there is no exact category for an entry for this purpose, other than ‘emergency,’ but you could also combine it with the permitted right to enter to check the smoke and CO2 alarms). From that entry, you can get a general sense of the unit’s condition and what has been left behind. Then you can serve both notices, and if the tenant does not respond in the 18 day period, you would be permitted to retake possession and also to dispose of any remaining property pursuant to the rules governing abandoned property (garbage if reasonably believed to be worth less than $700, or the  auction process if worth over that amount).

Question 3:  I own a duplex in Modesto and am getting a loan on the property. On Monday I gave the tenants a 24 hour notice to enter (4 days ahead) for the appraiser to look inside the property.
When he arrived no one was at home. I made another appointment with the appraiser for Monday next week. What are my options to enter the property?
Answer 3:  If you served the tenant with a proper Notice of Intent to Enter, for proper grounds (such as showing the unit to your appraiser to help him or her prepare the loan information), then you are allowed to enter the unit if the tenant is not there, as long as you have a key, and have not been told by the tenant not to enter in the tenant’s absence. If that occurs, you will need to adjust your approach and either work it out with the tenant, or initiate legal process that will compel the tenant to allow you access.

Question 4:  I am the owner of a 4-plex in San Jose, California. Tenants of one unit (U1) have been feuding with another Unit (U2).  Recently, there’ve been a few incidents where tenants of U1 accused U2 of causing noise disturbance at night. In one incident U2 said their disabled kid screamed at night, but U1 said the loud noises were from adults quarrelling. In another incident U2 flatly denied that they’re causing any noise disturbance. In both incidences, no police reports have been presented to me. I have talked to U2 and the neighboring tenants. The other upstairs units did not support any claim of noise disturbance. I’ve sent U2 a reminder to avoid making loud noises at night, for both occasions.

  1. For such events, I’ve always told U1 to call Police and have them write up a report, which they can send me later. I reckon if the report verifies the noise disturbance, there’s no dispute and I can send out reminders or warning notice. Most of the time, the Police only reports what is told to them by the accusing party. The dispute still stays. Is there a better way to handle this?
  2. U1 said they have some evidence from their camera or recording device. I asked them to send them to me but they didn’t but told me to come and listen to them. I hesitate to come by their Unit and listen because I need the audio/video files as evidence if I have to charge the accused party and they denied.  Is this reasonable?

I feel that I have done more than a reasonable job to provide a quiet and peaceful environment for the tenants.  What more could a landlord do and what actually are the landlord’s obligations in such a situation?
Answer 4:  Generally, your duty is to take appropriate action when you have reasonable grounds to believe a tenant is disturbing the quiet enjoyment of another tenant. Evidence can be complaints, police reports, photos, recordings, witnesses etc. (as you’ve noted). But as long as you are responsive, and reasonable, as you appear to be acting, that’s about the best you can do when confronted with such facts. Whether you have a duty to visit the tenants who could electronically send you their evidence is unclear. You may need specific legal advise at that point from a competent landlord-tenant attorney.

Question 5:  What’s the allowable rental rate increase on a month-to-month lease agreement for my San Jose rental unit?Answer 5:  It depends on your specific situation, under the San Jose rent ordinance. You should be familiar with that set of rules, and you might consider calling the local rent board for guidance as the rules vary depending on the type of unit being rented, and the law is currently being revised. You should also review their website for specific information regarding your unit. See http://www.sanjoseca.gov/index.aspx?NID=1355. Please contact staff at (408) 975-4480 if you have questions or to confirm the status of a particular property.

Question 6:  Is there a form for the release of liability if you let a tenant into the premises after a fire? For example, for possible asbestos exposure, is there a form for the tenant to sign saying they abandon their contents, after a fire? Once they have been let in to retrieve what is salvageable?
Answer 6:  A tenant who is forced out by a fire is in a somewhat ‘gray’ zone from the usual rules of landlord tenant law, and it may depend on your local laws as to what you need to do to be in compliance with the tenant’s rights. Generally, the tenant has a right to retrieve what he can of his possessions, though of course the condition of the unit can affect that process greatly.

Under standard landlord tenant law, the landlord has to provide the tenant a Notice of Right to Reclaim Abandoned Propeprty when the tenant vacates and leaves stuff behind. If you are familiar with that process, you might consider providing such notice. But because of the fire aspect, there may be an investigation being conducted by the fire department which may affect yourget guidance from their adjustors and attorneys.

It is unclear whether you can require the tenant to provide a signed release form before allowing them to retrieve their belongings. Having them sign a form that says they are aware of possible risks to enter, but are assuming the risks of such entry, might be ok, though it’s also unclear whether such form would insulate the owner should the tenant in fact get hurt in the unit retrieving their possessions.

Again, it is not a very clear area legally speaking, and so using common sense may be your best defense (that and throwing it into your insurance company’s lap).

Question 7:  I have an owner who hired a “private contractor and he is unlicensed”. This owner wants us to pay the contractor. Do we have any liability when we pay an unlicensed contractor on behalf of someone else? And do we have liability even if we get it in writing from the owner? I assume that we would be required to do a 1099 even if the vendor is unlicensed – correct? Please advise and thanks for your time!
Answer 7: Generally, having an unlicensed contractor provide services to a tenant-occupied property can result in claims against anyone involved in having that work done if the work somehow causes injury to a third person, such as the tenant. There are theories of liability that a clever lawyer can allege that would at least serve to bring a person in your situation into the case, even if the actual result was a complete dismissal of such claims for more valid legal reasons. If you are going to assist in that effort, having the owner provide you indemnification, as your agreement probably already does, would likely protect you. However, indemnity agreements can be challenged as well, leaving you to provide your own defense while that issue gets sorted out. As for the 1099 aspect, that is a tax question, which I avoid at all costs!

Question 8:  We had a tenant who moved out and left his cat – we know because it has a collar with the tenant’s phone number on it. Can we charge a re-homing fee?
Answer 8:  I am not sure what you mean by ‘re-homing fee’. Do you mean charge the tenant the cost to Fed Ex the cat back to its owner? Would you be deducting it from the deposit? If so, I supposed you could argue it comes under the ‘cleaning’ provision, but a small claims court would probably not be amused. In the case of abandoned pets (which apparently does happen, though hard to imagine…), there are state and often local laws that the landlord needs to be aware of before ‘disposing’ of the pet. Perhaps in response to the increased numbers of such events associated with the foreclosure crisis (and all the attendant evictions of former owners) in 2009 the California legislature amended two civil code sections to provide that if a live animal is left behind in any premises or real property that has been vacated upon the termination of a lease or other rental agreement or foreclosure of the property, the property owner must immediately call the local animal control officials to have the animal picked up.  The law makes clear that the caller will not be liable for any civil or criminal penalties for having the animal rescued. (Civil Code sections 1815 and 1816). Any remaining abandoned property would need to be disposed of pursuant to Civil Code Sections 1980-1991 (that provide for notice to the former tenant, a chance to reclaim the property, and an auction of the property if worth more than $700.00).

Question 9:  What is our responsibility to the tenant when we discover there unit may or does contain the following: Mold, Asbestos, and/or other related issue?
Answer 9:  If the premises contain harmful substances, the landlord has a duty to eliminate the problem, by mold abatement, etc. Typically, the landlord will get a professional assessment, either from a private expert on the topic, or a city official’s notice of violation. At such time, the landlord is obligated to act to cure the problem. The Landlord has a duty to provide habitable premises, which can be affected by the tenant’s behavior if the tenant is responsible for the problem (though the San Francisco rent board takes the position that the landlord must cure even tenant-caused defects, and then seek to hold the tenant liable in a separate court action.)

ALERTS AND UPDATES:

The following items were approved or adopted by the Richmond Rent Board at its September 20, 2017, meeting: Adopted Regulation 17-10, rescinding and replacing Regulation 17-04, regarding when notices of rent increases, changes in the terms of tenancy and termination of tenancies must be filed with the Board and requiring the enrollment of Rental Units with the Board.  SUMMARY: Regulation 17-10 requires that landlords file any notice of rent increase, change in terms of tenancy, or termination of tenancy with the Rent Board within two business days after service on the Tenant. A proof of service with time and date of service must be included with the copy of the notice filed with the Rent Board. Landlords are no longer required to file these notices with the Rent Board prior to service on the tenant. Regulation 17-10 also clarifies which types of Rental Units must file notices of rent increase, termination of tenancy, and change in terms of tenancy. Prior to serving any Tenant a notice of rent increase, change in terms of tenancy, or termination of tenancy, the Landlord must have enrolled all Rental Units with the Rent Program. Regulation 17-10 provides that if a Landlord has not enrolled all of the landlord’s rental units and/or has not filed a notice of rent increase, change in terms of tenancy, or termination of tenancy with the Rent Board, the notice of the rent increase and/or the change in their term of a tenancy is null and void and, as to the failure to fine the notice of a termination of tenancy with the Rent Program, a Tenant in an unlawful detainer lawsuit may obtain from Rent Program staff a certification that this requirement has not been fulfilled. Such certification may be used as a defense to an unlawful detainer lawsuit.

 

Richard Beckman, of Beckman Feller & Chang P.C., has been practicing landlord-tenant law for over 26 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 rbeckman@bfc-legal.com or by visiting the website www.bfc-legal.com.