This article was posted on Monday, Oct 15, 2012

Question 1: I need my tenant to vacate his rental unit for a few days so my contractor can do some repairs to the unit. The tenant wants me to pay him the cost of a motel for the time he is out of the unit, and I agreed as long as the cost did not exceed the amount of the rent. He insists I have to pay the actual amount of a reasonable motel room. Who is right?
Answer 1: Once the tenant pays the rent for the unit for the following month, you and the tenant have a contract. Part of the contract includes the ˜covenant of quiet enjoyment,’ which means, in part, that the landlord will not do anything to disturb the tenant’s right to occupy the unit without interference. Requiring the tenant to move, even for a good reason like repairs, is a breach of that covenant (unless the tenant caused the damage needing repairs), and entitles the tenant to compensation that will make the tenant ˜whole.’ Generally, that is the amount necessary to put the tenant in the same situation he would have been in absent the breach. One could argue it would allow the tenant to rent an ˜identical’ unit for the necessary amount of time he is required to vacate the rental unit, and charge the landlord for any difference in rental costs, and any reasonable costs associated with the relocation such as moving costs if the move requires furniture and belongings to be removed from the unit being repaired, or rental of furniture for the temporary residence.

In such cases, it might be useful for the landlord to put themselves in the tenant’s shoes, and try to determine what would be a reasonable amount of compensation for the relocation. It is almost always much less costly for both parties to work out a reasonable compromise than to resort to a legal action of some kind or other. For example, if the rent is $75 a day for the rental unit, it is unlikely the tenant can rent a similar place for a short term for that amount. A $75 a night motel or hotel would not, generally, provide the same level of comfort and amenities as an entire rental unit. In that case, simply discounting the rent during the period of absence would not adequately compensate the tenant. In order to avoid the kind of hard feelings these types of issues can often generate, you might offer to let the tenant know he can relocate to a decent motel/hotel, and you will pay the difference between the daily rental value of the unit and the motel/hotel, and add a certain amount to compensate for the typical increase in living expense associated with motel living, such as the need to eat out, rather than being able to cook in the rental unit. The exact amount of such additional compensation can be worked out if both sides approach it reasonably.
It should be noted that in certain locations, such as San Francisco, the applicable ˜rent control law’ requires that the landlord serve the tenant a notice of temporary termination of the tenancy, and pay the tenant a specified relocation payment of over $5,000.00 per tenant (up to three total). Thus, having a tenant willing to relocate in exchange for a small motel bill can sometimes be seen as a windfall for the landlord.

Question 2: I have a rental applicant whose stated income is less than three times the rental amount, and whose credit history is not strong.  She has offered to have her parents co-sign the lease, or guarantee it, and their income and credit history is fine.  It is not my policy to have co-signers or guarantors, but I want to know if I have some obligation to accept one if the prospective tenant does not qualify on her own.
Answer 2: There are very limited reasons why a rental applicant can be rejected without raising an inference of discrimination against the applicant based on some characteristic of the applicant (e.g. race, sex, appearance etc). However, the applicant’s financial situation (income and credit history) is one such permitted basis to reject an applicant (unless the rejection is based on the tenant’s ˜source of income,’ such as unemployment insurance or government assistance payments). There is traditionally no law that requires a landlord to accept a financially unqualified applicant solely because the applicant offers to provide a credit worthy co-signor or guarantor. So, generally, you would be legally permitted to enforce reasonable financial requirements for applicants. However, if the reason the tenant is not financially strong is closely related to a disability suffered by the applicant, that would change the situation. One federal court has held that if the applicant is disabled and disability is the reason his financial situation is poor (due to the inability to work), federal disability law requires the landlord to relax its standard co-signor policy if doing so would constitute a ˜reasonable accommodation’ which would afford the applicant the same opportunity to rent the dwelling as a non-disabled applicant. In other words, if accepting a co-signor or guarantor would not unduly disrupt the landlord’s business, and would allow the disabled applicant to successfully rent the unit, the landlord has a legal duty to accept an applicant’s offer to provide an otherwise qualified co-signor or guarantor.

Question 3: My tenant is complaining that the tree that overhangs the back yard drops sap and leaves on her patio furniture, and she wants me to have the limbs above the patio removed. The tree is partly on my land and partly on my neighbor’s land. Any thoughts?
Answer 3: A tree growing on a property line is considered by law a “line tree.” Civil Code section 834 provides: “Trees whose trunks stand partly on the land of two or more coterminous owners, belong to them in common.” As such, neither owner “is at liberty to cut the tree without the consent of the other, nor to cut away the part which extends into his land, if he thereby injures the common property in the tree.” (Somewhat surprisingly, if the tree trunk were located entirely on the neighbor’s land, you would be legally permitted to cut off any limbs that encroach onto your property, unless doing so would cause the tree to die. In such case, a court might find the otherwise legal remedy – cutting off encroaching branches – was an unreasonable response to the actual injury caused by the overhanging limbs.) However, assuming you can trim the overhanging branches without ˜injuring the common property in the tree’ (which is not clear but likely means causing the death of the tree or cutting on the other owner’s side), there remains the issue of whether you are obligated to do so based on your tenant’s request.
In the case of your tenant complaining about the impact of the tree on her use of the backyard, your rights and responsibilities are less clear. As in the preceding question and answer, a tenant is entitled to the right of quiet enjoyment, and also a right to habitable premises. It is doubtful the issues described by the tenant fall under either category. On the other hand, if the tree limbs constituted a hazard to the tenant, they should be removed. Your description of the complaint would indicate more of a ˜nuisance’ than a hazard to the tenant’s safety. This scenario may come under the concept of ˜disclosure’ “ which is the requirement that the landlord disclose to the tenant any facts the landlord knows of that might materially impact the desirability or value of the premises (such as, for example, an obnoxious neighbor who has habitually disturbed prior occupants of the rental unit). If, for example, prior tenants had complained about the same problem, you would likely have a duty to notify incoming tenants of the problem, so they could decide for themselves whether to take the unit with the limb problems or not. If the obvious possible solutions such as asking the tenant to cover the patio furniture or move it out from under the limbs do not work, I would probably recommend an attempt to prune the limbs enough to solve the problem. If the pruning would require a significant impact on the tree, such as a removal of a large portion of the overhanging canopy, and you and the tenant can not agree, I would recommend getting a detailed legal opinion on your situation, as such issues can often flare from a minor issue into something more serious (and also possible expose you to liability to the neighbor co-owner of the tree).
And as discussed above, for future reference, disclosing to a tenant the existence of the tree limbs and their tendency to drop sap and leaves onto the patio would probably eliminate any duty on your part to accommodate a tenant’s request that you later modify the tree to suit the tenant’s outdoor lifestyle.

Question 4: I have a two-unit rental building in which the main unit’s electrical service provides the outdoor lights for the property, including the common back yard and the garage area. The tenant feels he should get some sort of rental discount, even though I told him when he rented that his utility bill would include lighting some common areas. He says he had to be notified in writing, or I am responsible for the added electrical cost, which he estimates to be $25.00 a month. Do I have to refund his electrical costs?
Answer 4: Your tenant is correct. Even though you notified him of the situation prior to the tenancy beginning, he was entitled to get that notice in writing for it to be effective. According to Civil Code Section 1940.9(a), If the landlord does not provide separate gas and electric meters for each tenant’s dwelling unit so that each tenant’s meter measures only the electric or gas service to that tenant’s dwelling unit and the landlord or his or her agent has knowledge that gas or electric service provided through a tenant’s meter serves an area outside the tenant’s dwelling unit, the landlord, prior to the inception of the tenancy or upon discovery, shall explicitly disclose that condition to the tenant and shall do either of the following:

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1.  Execute a mutual written agreement with the tenant for payment by the tenant of the cost of the gas or electric service provided through the tenant’s meter to serve areas outside the tenant’s dwelling unit.
2.  Make other arrangements, as are mutually agreed in writing, for payment for the gas or electric service provided through the tenant’s meter to serve areas outside the tenant’s dwelling unit. These arrangements may include, but are not limited to, the landlord becoming the customer of record for the tenant’s meter, or the landlord separately metering and becoming the customer of record for the area outside the tenant’s dwelling unit.

As for the tenant’s remedies, the section adds (b) If a landlord fails to comply with subdivision (a), the aggrieved tenant may bring an action in a court of competent jurisdiction. The remedies the court may order shall include, but are not limited to, the following:

1.   Requiring the landlord to be made the customer of record with the utility for the tenant’s meter.
2.    Ordering the landlord to reimburse the tenant for payments made by the tenant to the u utility for service to areas outside of the tenant’s dwelling unit. Payments to be  reimbursed pursuant to this paragraph shall commence from the date the obligation to disclose arose under subdivision (a).

In other words, from the inception of the tenancy until you complete the requirement of getting an agreement in writing with the tenant, the tenant is entitled to be reimbursed the extra electrical cost (though figuring out what it actually is each month might be difficult). If the tenant refuses to sign an amendment to the rental agreement, you may be obligated to simply reimburse the amount until the rental agreement ends, at which point you can enter into a new lease that sets out the tenant’s obligation to pay the specified common area electrical costs.

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 415-495-8500; email [email protected] or by visiting the website

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