This article was posted on Wednesday, May 01, 2013

Question 1: I bought a house in San Francisco so my son could live there. My son invited his friend to live there and help with the rent. No formal rental agreements were signed with the tenant who moved in late 2010. Our son has moved but his friend stayed in the house. I informed the tenant that he needed to move out so that my wife and I could move in.   He agreed to move out, but I was told I should do it in writing and with legal help. Do you think this is necessary? And does the same situation apply if we want to sell the house?

Answer 1. If you and your wife want to live in the house which is currently occupied by a tenant, then you should comply with the San Francisco rent and eviction control law, which not only requires a formal written 60 day notice, but also requires that any tenant who has been a tenant for over a year be given a relocation payment of about $5,100.00, plus an additional payment (about $3,500) if the tenant is elderly or disabled, or has a minor child in the house. There are other possible issues regarding what are known as ‘protected tenants’ which can complicate even an otherwise ‘simple’ owner-move-in case.

If the tenant is actually a friend, he may agree to vacate without the necessity of a formal notice and relocation payment, but that route has some risks, including the possibility that the ‘friend’ could change his mind and not move, or, worse, perhaps, move on the oral notice you gave and later sue for ‘wrongful eviction.’ And if your son’s friend has sublet to another person, this person would have his own legal rights that must be respected.

If you are only selling the house, and do not plan to live in it the next three years (which is the requirement under the rent ordinance to terminate a tenancy based on ‘owner move in’), then you have no legal basis to terminate the tenancy. However, you can still have a discussion with the tenant about the tenant leaving voluntarily, either as a favor to your son and without any money exchanging hands, or in exchange for a ‘buy out’ amount that is sometimes related to the increase in sale value the home experiences when it is marketed vacant as opposed to marketed with a  tenant inside. However, as with an informal ‘owner-move-in’ effort, such informal discussions can backfire on the landlord, which is why seeking professional legal assistance is recommended.

Question 2: What are considered normal business hours in terms of when my agent could hold open houses (i.e. Saturday, Sunday)?

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Answer 2:  Normal “business days” are all days except ‘holidays,’  which includes Sunday and Saturday and specified holidays such as Christmas etc. “Normal business hours” is not defined by statute or case law, though it is generally considered to be between the hours of 9:00 a.m. to 5:00.p.m. As a result, there is no specific provision that permits the landlord to compel entry to the tenant’s unit other than Monday to Friday between 9:00 and 5:00. The tenant would likely have to consent to a Saturday or Sunday open house, though your rental agreements may have a provision included which provides such consent in advance, though still subject to the requirement of advance notice to the tenant pursuant to Civil Code Section 1954 (which is referred to in another Answer in this column.

Question 3: DoesCalifornia allow me as a private property owner to issue parking citations imposing monetary fines to the owners of vehicles parked on their property?

Answer 3: According to the California Attorney General (AG), which was called upon to consider what measures are available to private property owners who want to enforce parking regulations on their property, no you may not.  Nothing in the California Vehicle Code authorizes private property owners to issue parking citations imposing monetary sanctions to the owners of vehicles parked on their property, either by means of a privately-issued citation,  or by issuing written warnings or posting signage informing drivers of the intended penalties.  The California Attorney General learned  that in some private parking lots held open to the public, owners were attempting to impose monetary sanctions  on drivers either in lieu of or in addition to having the drivers’ cars towed. Typically in such cases, the demand for a monetary sanction is contained in a document that is affixed to the driver’s car, similar to a municipal parking ticket. Unlike booting, this practice does not involve vehicle tampering. The AG nonetheless concluded that the practice is not authorized by law, and therefore is not available to private property owners. The AG had earlier concluded that a private security firm hired by the owner of a private parking lot could not legally immobilize an improperly parked vehicle by affixing a “boot” device to it.  A private parking lot owner can, by posting proper notice, have illegally parked vehicles towed, however.

Question 4: I am managing a property which was foreclosed on (client/owner is a bank). The home is a single family home that had tenants in place. The bank signed a new lease with the tenants of the home. Two weeks after the new lease was signed, the former owner contacted me indicating he lives in the downstairs of the home. The area in question is an unfinished basement with no kitchen, no heat bathing or cooking facilities. No bed, no seating and is generally uninhabitable. The former owner has no mail delivered there and is not paying any utilities. There are belongings that appear to be stored (tools, doors, other various fixtures and some boxes). To me this meets the standards of a requiring an 18 day notice to remove belongings. Is there any standard by which an eviction would be required?

Answer 4: This can be a pretty tricky area, for several reasons, but mostly having to do with the nature of the area the former owner occupies. It sounds like the tenants in the main unit are ‘fine’ in terms of the bank has accepted them as continuing tenants, and entered into a new lease that would settle any issues about whether they were ‘bona fide’ tenants or not.

As for the former owner, the typical rule is that a former owner of a foreclosed property may be evicted after expiration of a three day notice to vacate is delivered to him or her. That would be pretty straightforward. However, if he claims to now be a subtenant of the tenants, for example, that would require a different analysis.

So, if he is not claiming any legal relationship with the tenants, but only claiming to be living downstairs, I think it would be a fairly straightforward post-foreclosure eviction of a former owner. This is a process which begins with proper service of a properly worded Three Day Notice, followed by the unlawful detainer lawsuit if the former owner does not vacate in response to the three day notice.

Question 5: I have a tenant who is on Section 8 renting a unit in my Oakland duplex. She has three kids, and  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 5: Most Section 8 evictions for ‘cause’ (such as nuisance, as appears to be your situation) only 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 Housing Assistance Program (HAP) contract and the lease. Both those documents should be reviewed very carefully for such requirements. There is also the requirement that the Notice comply with Oakland’s eviction control ordinance Measure EE, which may require an additional ‘pre-notice’, and which also includes some specific language in the Three Day Notice To Quit. Once you’ve complied with those notice requirements, 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.  However, it needs to be of sufficient weight to justify a judge or jury concluding that the tenant’s actions justify an eviction.

Question 6: My bank appraiser needs to get in the apartment to inspect each unit. The appraiser wants to do each of my four units in the building at the same time. I am going to give my tenants a 24 hours notice by email. If a tenant is not available by that time, does the landlord have a right to get in his unit with the appraiser to do the job?

Answer 6: Set forth below is the applicable text of Civil Code Section 1954, the statute governing the landlord’s right to enter a tenant’s rental unit. The statute does not provide for notice of entry by email, unless the tenant has agreed to receive notice in that fashion (which would be evidenced by the tenant’s replied acceptance of your emailed request for approval of such notice). Otherwise, you should provide notice as required below. There  is no prohibition on providing notice to all four units of an intent to enter for purposes of an appraisal. If the tenant is not present, has not notified you of a demand or request that you not enter in the tenant’s absence, and you have key access, and of course assuming you provided proper notice, then entry is permitted. Also, you may note subsection (d)(2) of 1954 allows an owner who has notified the tenant that the property will be shown to prospective purchasers has an option to provide oral notice if the tenant has been notified previously that “the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above.” In such notice cases, 24 hours advance notice is presumed reasonable.

Civil Code Section 1954. Entry of dwelling by landlord; conditions; oral agreement between tenant and landlord

(d)(1) Except as provided in subdivision (e), or as provided in paragraph (2) or (3), the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.

(e) No notice of entry is required under this section:

(1) To respond to an emergency.
(2) If the tenant is present and consents to the entry at the time of entry.
(3) After the tenant has abandoned or surrendered the unit.

(d)(2) If the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.

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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