This article was posted on Monday, Apr 01, 2013

Question 1: I am a landlord of a six unit apartment building in San Francisco.  I have a tenant with a long-term tenancy (over 20 years) who is a senior citizen.  She says she can no longer get into the claw foot tub (21″ high) and would like to remodel the bathroom with a standard (15″) tub.  Am I obligated to do this remodel? Thank you.

Answer 1. You are not obligated to do (or pay for) the remodel, but you are probably obligated to allow your tenant to do it. Your question falls under the legal issue known as making a ‘reasonable accommodation’ to a tenant who is disabled and who needs the landlord to accommodate the tenant’s disability so the tenant can maintain his or her use of the premises. According to the California Department of Fair Employment and Housing, the agency tasked with public enforcement of disability access laws, this law “Requires housing providers to make reasonable accommodation in rules and practices to permit persons with disabilities to use and enjoy a dwelling and to allow persons with disabilities to make reasonable modifications of the premises.” A reasonable accommodation includes allowing the disabled person, at that person’s expense, to make reasonable modifications of existing premises occupied or to be occupied by the disabled person, if the modifications may be necessary to afford the disabled person full enjoyment of the premises, except that, in the case of a rental, the landlord may, where it is reasonable to do so, condition permission for a modification on the renter’s agreeing to restore the interior of the premises to the condition that existed before the modification (other than for reasonable wear and tear).

Is Hayward, California a rent controlled area?

Are there any special rules for serving a rent increase?

While some cases have found that the landlord has a duty to incur a nominal expense if necessary to accommodate a disabled tenant’s reasonable request, I don’t think the cases have gone so far as to require the swapping out of an otherwise serviceable bathtub. However, according to the express requirement of the law, you would likely have to permit the tenant to make that change if the tenant agreed to pay all costs associated with it, and return the unit to its original condition when the tenancy ended.

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Question 2:     I discovered a 10 foot scratch in the wood floor after the tenants had vacated the property. (I have it documented that when they moved in the scratch was not present. They are not denying it.) When I returned their security deposit within 21 days as required by law, I included three estimates for the floor repair. I deducted $366 (50% of the least expensive floor repair) from the security deposit.  My question to you:

Does the “actual repair” have to be completed by the company that provided the estimate if the tenants are requesting the proof of work was completed?

Answer 2:  If you have the work done by someone either than the person who provided the estimate, or if you did it yourself, you still have to provide the former tenant with the documentary evidence of the cost of repair within 14 days of completion of the work.

Civil Code 1950.5 provides that “if a repair to be done by the landlord or the landlord’s employee cannot reasonably be completed within 21 calendar days after the tenant has vacated the premises, or if the documents from a person or entity providing services, materials, or supplies are not in the landlord’s possession within 21 calendar days after the tenant has vacated the premises, the landlord may deduct the amount of a good faith estimate of the charges that will be incurred and provide that estimate with the itemized statement. Within 14 calendar days of completing the repair or receiving the documentation, the landlord shall complete the requirements in paragraphs (1) and (2) in the manner specified.” If the landlord or landlord’s employee did the work, the itemized statement shall reasonably describe the work performed. The itemized statement shall include the time spent and the reasonable hourly rate charged. For a complete review of the rules governing return of security deposit, you can find Civil Code Section 1950.5 online.

Question 3:  My San Francisco rental had rotating tenants in 2011 (two moved out and two new ones moved in). The terms and conditions of the original lease have been ongoing, and extended to the new tenants as they revolve in since they signed the lease when they moved in. Can I still use the banked rent increase in this case?

Answer 3: Without knowing the rent increase history, it is hard to say whether you have any banked increases available or not. Also, without more information, it is unknown what effect the rotating tenants might have on that issue (for example, if you signed a new lease with the new tenants, that might constitute the terms of your agreement with them, including the amount of rent for the period of the lease). However, the basic rule under the typical rent ordinance is that the landlord can increase the rent once a year, in the amount provided by the rent board (each February in San Francisco’s case). The rent increase can not be any sooner than the first anniversary date, but after that, it can be anytime, as long as a prior increase was not given in the preceding 365 days. However, a rent increase that does not fall on the original anniversary date creates a new anniversary date for future rent increases. For example, tenant A, B and C move in Nov 1, 2010. The landlord may raise the rent on that tenancy effective Nov 1, 2011 (the anniversary date), up to the amount allowed by the rent board in its publication on rent increase percentage issued each February for the following year. That information is available from the rent board’s website. The rent can then be increased each following year effective on the anniversary date. If you miss a year, you can add that percentage to the next year, under the concept of a ‘banked’ rent increase. If tenant A moves out and is replaced, there is no effect on the rent increase rules. Only if all the ‘original’ tenants move out can the rent be raised to market rate (unless you waived that right under certain circumstances too complex to discuss here).

Question 4:  Our tenant has not paid rent since December.  We personally handed the tenant a 3 Day Pay Rent or Quit on February 5. We have heard nothing since. Do we still have to do 30/60 day notice?
Answer 4:  If the tenant is not paying rent, then a 3 Day Notice to Pay or Quit is the appropriate notice, which if not complied with permits you to file the eviction action. That is your likely best option if the tenant is not paying the rent and ignoring you.

Question 5: The tenant notified us on the 1st he was moving out on the 7th. He left without paying any rent for February. We are more than likely going to take him to small claims court to recover unpaid rent. Are we only allowed to collect rent up to the 7th (the day he moved) or can we pursue rent for the entire month of February?

Answer 5:  If the lease or rental agreement was month to month, then the tenant is liable for the 30 day period from the end of the month for which he or she last paid rent. In your case, that would be the thirty days from February 1 to March 3. If the lease was for more than month to month, then the tenant is liable for the future rent (until the end of the lease) minus the amount a court will decide you could have avoided (mitigation of damages) by re-renting the unit, based on testimony of the parties.

Question 6: Can I increase rent to a tenant that’s been renting for two years with just a 30 day notice or does it have to be a 60 day notice?
Answer 6:  Only the amount of the increase, not the length of tenancy, is a factor for the amount of notice required for a rent increase. If the increase is more than 10%, then 60 days’ notice is required. And if the notice is served by mail, rather than personally, you add five more days for mailing, for a total of 65 days’ notice before the increase takes effect.

Question 7:     Is Hayward, California a rent controlled area? Are there any special rules for serving a rent increase?

Answer 7:  Yes, it is, and yes, there are. If you own five units or more in Hayward, the Hayward Rent Ordinance applies. If your tenants are in a controlled unit, your rent increase notice must provide the following information, set forth below in Section 4(b), along with the general information required to be given the tenant in Section 4(a). It is a fairly demanding amount of information that must be provided.

(1)               The amount of the rent increase both in dollars and as a percentage of existing rent and either:

(i)                 A statement that the landlord considers the rent increase consistent with the five percent (5%) increase limitation set forth in Section 3(a) of this ordinance; or

(ii)               Documentation supporting the level of increase desired, including at a minimum:  the rental history of the unit if the landlord considers Section 3(c) or (d) as providing authorization for the rent increase; or a summary of the unavoidable increases in maintenance and operating expenses, a statement of the cost, nature, amortization, and allocation among rental units of any substantial rehabilitation or capital improvement, or a summary of the increased cost of the landlord’s debt service and the date and nature of the sale or refinancing transaction, or other relevant information that supports the level of rent increase desired.

 (2)                 The identity of all other affected tenants and the units which they rent;

(3)                 The address and telephone number of the Rent Review Officer and the fact that the tenant is encouraged to contact the Officer for an explanation of the provisions of this ordinance;

(4)                 The name, address, and telephone number of the person whom the tenant must attempt to contact within ten (10) days of receipt of the notice to satisfy the provisions of Section 5(b) of this ordinance and the best time(s) to attempt that contact (section 5(b) contact reference is the landlord or the person designated by the landlord at the time and place shown on the notice provided by the landlord to discuss the rent increase) and

(5)                 A copy of the petition form prepared by the Rent Review Officer which initiates the process established by this ordinance.

(a)              The landlord and tenant shall execute a single document stating that the information, documents, or notices required by this section have been received by the tenant.  The original of the document acknowledging receipt of information, documents, or notices required by this section shall be retained by the landlord and a copy thereof provided to the tenant.  In the event a tenant fails or refuses to execute the document required herein within ten (10) days after the landlord’s request that the tenant do so, the landlord shall prepare a declaration under penalty of perjury stating that the information, documents, or notices required by this section have been delivered to the tenant, the date the landlord requested the tenant to sign the joint document acknowledging receipt, and the date the declaration was executed.

(b)       A landlord failing to provide a tenant the information, documents, or notices required by this section shall not be entitled to collect any rent increase otherwise authorized by this ordinance from that tenant nor to any rent increase that might otherwise be awarded by a mediator or arbitrator and such failure by the landlord shall be a defense in any action brought by the landlord to recover possession of a rental unit or to collect any rent increase from the tenant.  A landlord may cure the failure to serve any notice or the obligation to provide information to a tenant which is required under this ordinance by giving such notice or information before initiating an action for possession of the unit or collecting any rent increase otherwise authorized hereunder.

Question 8: I have a tenant on ‘Section 8’ renting a unit in my duplex. She has three kids now she is renting out two of the rooms to some people who are on drugs and are making lots of noise and problems in the area. What kind of evidence do I need to evict them and what kind of notices should I use?

Answer 8: Most Section 8 evictions for ‘cause’ require the same three day notice as a ‘regular’ eviction notice. However, there are often additional notice requirements, usually having to do with notifying the housing authority, and including specific language required by the HAP contract or lease. Both those documents should be reviewed very carefully for such requirements. Once you’ve done that, and have reasonable evidence of the activity you describe, you would likely be on solid ground in an eviction action. The evidence can be complaints from neighbors, your own observations, police reports etc.

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 19 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



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