This article was posted on Wednesday, Jun 13, 2012

Q & A’s

by Richard Beckman, Attorney

Question 1: I have a question about rent control in San Francisco.  My son wants to buy a house in the city and probably rent it for a few years to help with payment at the beginning.  We read about the eviction regulations and found this on “Tenants who are evicted for one of the “no-fault” causes (Capital Improvements, Demolition, Owner Move In, Ellis, or Substantial Rehabilitation) get relocation benefits of (from 3/1/11-2/28/12) $5,101 per tenant up to a maximum of $15,304 per household and $3,401 additional for tenants who are senior, disabled or have children.””

Is it legally possible for the contract with the tenants to be written in a way so that they agree to occupy only for x number of years (in which case my son then can move in afterwards and avoid the above relocation fees).

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Answer 1: The short answer is ˜no.’ The San Francisco rent ordinance, officially known as the San Francisco Rent Stabilization and Arbitration Ordinance, contains a provision that states that the protections provided to the tenants against evictions or improper rent increases can not be waived by the tenant. In other words, even if the tenant agreed with your son at the beginning of the tenancy to move out after x years, and not require a ˜just cause’ notice or, if applicable, relocation expenses, that agreement would not be enforceable against them. It should be noted that the same rule applies for each of the local eviction control cities of Oakland and Berkeley.

Question 2: My tenant signed a lease for one year, but told me she had to leave the area after only being in the unit for a month. Do I have to return her deposit or can I withhold it for the rent and expenses such as advertising for a new tenant?

Answer 2: As regular readers of this column will know by now, the state law that governs security deposits in residential tenancies is Civil Code Section 1950.4 (which I regularly recommend that landlords read so they know the details of that law). In this case, the statute allows the landlord to withhold from the deposit the amount of unpaid rent up to the 21st day after the tenant vacates (along with, as in all cases, amounts necessary to restore the premises to the condition they were rented in, normal wear and tear excepted, and to clean them to the condition they were provided to the tenant).

For example, let’s say the tenant who had a two month security deposit gave notice on May 1 that she was leaving June 1, even though she still had six months left on her lease. She paid rent for May, and moved May 31. She would legally be responsible for the rent for the rest of the lease term, minus any amount the landlord can recover from re-renting the unit during the rest of the lease term. For purposes of deduction from her security deposit however, the landlord would be limited to deducting from the deposit the amount of the unpaid rent only as far as June 21, and must return the balance of the deposit to the tenant with a written explanation of the amount withheld (this assumes no damage to the unit and it was acceptably clean). The statute does not allow the landlord to apply the security deposit to future damages or other expenses associated with a lease breach, such as advertising or commission. Those costs, along with any rent due for the rest of the lease term that was not recovered by a re-rental of the unit, could only be claimed in a separate lawsuit) against the tenant (whether in small claims or ˜regular’ court.

Question 3: What is the procedure for an owner selling or foreclosing a property occupied by a tenant currently in a one-year lease with several months left on the lease? Can the tenants be asked to leave or do they have the right to stay there through the rest of the lease?

Answer 3: If the property is sold by the owner, a tenant who has time left on a written lease is entitled to remain in possession through the remainder of the lease term (unless both sides agree otherwise). In a foreclosure sale before 2009, a foreclosure sale would ˜wipe out’ any leases that were entered into after the loan being foreclosed on, along with most other ˜junior’ interests in the property. After such a sale, the tenancy could be terminated on 30 days’ notice.  However, in March 2009, a federal law was passed “ the Protecting Tenants at Foreclosure Act of 2009 “ that changed the rule, and allowed tenants in such circumstances to stay for the rest of the lease term.

There are exceptions to the federal law, including the requirement that the lease or tenancy is bona fide, A lease or tenancy is bona fide if the tenant is not the mortgagor (the borrower) or the parent, spouse, or child of the mortgagor; the lease or tenancy is the result of an arms-length transaction; and the lease or tenancy requires rent that is not substantially lower than fair market rent or is reduced or subsidized due to a federal, state, or local subsidy. Secondly, the lease can be terminated on 90 days notice if the unit is sold to a purchaser who will occupy the property.

Also, this law only applies to the immediate successor in interest at foreclosure (i.e., the person who purchases at the foreclosure sale, whether it is the lender or a third party buyer).

Question 4: My tenant notified me he is leaving and that he does not want some of the items in his unit. He said I can have whatever I want and throw the rest away. What if I don’t want any of his stuff, but he’s already gone?

Answer 4: When a tenant vacates a unit, either voluntarily or as a result of being evicted, and leaves personal property behind, there is a statutory procedure the landlord is required to follow to have the items disposed of. Basically, the landlord must provide a written notice to the former tenant at the last known address of the tenant that identifies the items left behind, and that the tenant has 18 days to recover the items, or they will be disposed of. If the tenant was evicted, the Sheriff’s notice to the evicted tenant will include this notice. If the tenant fails to recover the items, the landlord may throw them out, or keep them or give them away, only if the collective value of the abandoned items is reasonably estimated to be less than $300.00. If the value is higher than that, the landlord must auction the items off after proper notice has been given in a local newspaper for three weeks (if you find yourself in such a situation, it is recommended that you seek legal assistance to insure that you comply with this statutory process correctly, as failure to do so could result in liability for the wrongful disposition of the tenant’s property).

However, despite the above, you and the tenant may agree (preferably in writing) that the tenant is in fact abandoning his property and the landlord may dispose of it in any way the landlord chooses.

Question 5: I have a tenant who is disliked by several of her neighbors in my five-unit building. The tenant has accused one of her neighbors of stealing from her, and she filed a formal police report of that claim. The other tenants have made it clear they want her out, and that I should evict her. Personally, I find her aggravating, as she is always somehow in the middle of the few problems that arise in the building. Can I evict her?

Answer 5: This question requires a very close analysis of several issues, before an answer to your question can reasonably be provided. First, probably, is whether the property is subject to any of the local eviction control laws that require ˜just cause’ to terminate a tenancy. If so, the most likely ground for an eviction would be the ˜nuisance’ provision that each such law includes as a ˜just cause.’ But annoying neighbors may not qualify as a legal nuisance, and so that would be a close call requiring a serious weighing of the evidence before proceeding.

If the tenancy is not subject to such eviction restrictions, ordinarily a month to month tenancy can be terminated for no reason upon proper notice. However, in your case, the tenant’s complaint to her local police department regarding a theft in the building could complicate the effort to terminate her tenancy, as she could claim she is being retaliated against for exercising her rights under the law. If she had accused the landlord of the theft, it would be difficult to seek to terminate her tenancy without being accused of retaliation, which is a defense to the effort to evict. As she only accused her neighbor, however, it would be more difficult for her to allege that the landlord is retaliating against her for her reporting of a crime, unless she could show some reason why the landlord would be motivated to ˜punish’ her for such an action. In general, an annoying tenant can often portray themselves as simply insisting on their legitimate tenancy rights, and the landlord’s effort to terminate the tenancy is in response to those legitimate efforts, and should be considered illegal retaliation. It is often a fine line that must be drawn between the two, and typically requires a close evaluation of all the background factors.

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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