Landlord-Tenant Law Topics

Evictions

An unlawful detainer is the legal procedure by which a landlord can attempt to evict a tenant. A tenant has many defenses to fight an improper eviction. In San Francisco, if your rental unit is covered by the eviction protections in the San Francisco Rent Ordinance you may only be evicted from your home for one of fifteen (15) “just causes” under Ordinance Section 37.9(a). However, if a tenant lives in the same rental unit as the landlord, the landlord may evict the tenant without a just cause. Similarly, if a “master tenant” follows very strict procedures prior to the commencement of a sub-tenancy, the master tenant may also be able to evict the sub-tenant without a just cause.

The fifteen (15) just causes under the San Francisco Rent Ordinance are:

  • Failure to pay rent;
  • Breach of lease;
  • Nuisance;
  • Using the rental unit for an illegal purpose;
  • Refusing to sign a new lease that is materially the same as previous lease;
  • Refusing landlord access to the rental unit after reasonable notice;
  • Unauthorized sub-letter retaining possession of the rental unit after expiration of the lawful tenancy;
  • Owner Move-In;
  • Condominium conversion;
  • Landlord seeks to demolish unit;
  • Temporary capital improvements eviction;
  • Temporary substantial rehabilitation eviction;
  • Landlord seeks to withdraw unit from rental market (Ellis Act);
  • Temporary lead remediation eviction;
  • Landlord seeks to create new city-approved affordable or mixed-use housing.

Just Causes Nos. 1-7 are commonly known as “fault” evictions – the tenant is accused of acting inappropriately and therefore the tenant’s behavior forms a justification for eviction. In other words it’s the tenant’s own “fault” that he was evicted.

Just Causes Nos. 8-15 are commonly known as “no-fault” evictions – the tenant did nothing wrong and is only being evicted because the landlord has either chosen or been forced to exercise her right to evict the tenant.

Repair Issues

General Overview

Under California state law, all renters have the basic right to live in a safe and sanitary home. This is generally known as the “warranty of habitability.” It is an automatic component of every residential tenancy and can never be waived or ignored. In addition, housing is also considered “substandard” if it endangers the life, limb, health, property, safety or welfare of either the public or its occupants. Under state law, a home is considered “uninhabitable” or “substandard” for many reasons, including, but not limited to:

  • Inadequate heat
  • Faulty weather protection
  • Broken windows or doors
  • Unsanitary bathrooms
  • Structural hazards such as deteriorated foundation or buckled walls
  • Inadequate plumbing and gas
  • Lack of hot and cold water under the control of the tenant
  • Rodent or vermin infestations
  • Lack of natural ventilation and light
  • Unsafe or inadequate electricity
  • Unsanitary premises containing debris, filth and garbage.
  • Improper trash receptacles
  • Lack of necessary maintenance
  • Floors, stairways and railings not in good working order

In addition to state law, almost all cities and counties have local building codes and health regulations. By their very nature, these local rules vary from city to city. For example, state law remains relatively vague regarding what constitutes “adequate heat.” By contrast, the San Francisco Housing Code explicitly requires a temperature of “68 degrees Fahrenheit in all habitable rooms, excluding bathrooms and hallways.” Moreover, this level of heat must be provided a minimum of 13 hours a day, from 5 AM to 11 AM and also from 3 PM to 10 PM.

What to do if you need repairs

-Inform your Landlord in Writing

If you have any repair issue in your rented home, it is critical that you inform your landlord of the issue in writing. The form of the written communication does not matter. Indeed, often text messages and emails are “better” than US Mail because it is harder for a landlord to claim she never received the electronic communication. This can even be true of certified mail, since dishonest landlords often simply refuse to go to the post office to receive the letter. Ideally, a tenant would use multiple forms of communication – texts, emails, letters and phone calls – to inform a landlord of any habitability issue.

Letting your landlord know about repair issues is critical because a landlord is not required to repair problems of which he is unaware. Moreover, a landlord is not allowed to conduct “inspections” of your unit without your permission. A landlord simply does not have the right to “routine inspections” under the law. Because of this, a landlord can often establish that she had no knowledge of any habitability issues unless a tenant repeatedly informs her in writing.

-Document Everything

Although obvious, it is exceptionally important to document all repair issues you have in your unit and all communications you have with your landlord. Photos and videos are great. Also make sure to save all text messages, emails and voicemail messages from your landlord. Finally, if any friends or neighbors also witnessed the problems make sure you have their current contact information.

How to enforce your rights

If you have thoroughly documented your repair issues and have given written notice to you landlord, but he still refuses to make the repair, you have a few options:

-Department of Building Inspection (DBI)

All major cities have Departments of Building Inspection (DBI) that enforce local building regulations. Anyone can anonymously contact DBI and request an inspection of a residential property. After a request for inspection is received, DBI will schedule a time for an inspector to meet with the “complainant” and inspect the property. Tenants should make sure that they are present when the inspector arrives, indicate to the inspector every repair and habitability issue in the home, and get the inspector’s name.

Assuming the inspector finds code violations during the inspection, DBI will issue a Notice of Violation to the landlord that orders the landlord to correct the problems. Generally, DBI will give a landlord 30 days to correct any issues. If the landlord has not corrected all the violations within 35 days of the citation, the landlord may be prohibited from demanding rent, collecting rent, attempting to increase rent, or evicting for non-payment.

WARNING: Be very, VERY cautious calling DBI if you suspect you might live in an illegal unit.
Under current law, “illegal units” are, by definition, illegal. If a DBI inspector is called to an illegal unit, the inspector may “red-tag” the entire unit and require that the landlord remove the unit from the rental market or make it legal. This means that the tenant may be evicted. Because of this, it is almost never a good idea for a tenant living in an illegal unit to call DBI. It should be noted however, that at least in San Francisco, this could be changing. Given the acute housing shortage, both the Mayor and the Board of Supervisors support “legalizing” illegal units.

-Rent Board Petition

Tenants residing in rent control jurisdictions can file a petition with their local Rent Board claiming a “Decrease In Services.” Such a petition demands that a tenant’s monthly rent be decreased to compensate for the reduced habitability of the rental unit. Rent Boards can also help compel a landlord to make repairs by ordering additional rent reductions to continue into the future until the landlord makes the requisite repairs.

Note: Unlike with DBI, rent boards generally do not care if you live in an illegal unit and will not “report” that fact to DBI. Because of this, if you live in an illegal unit in a rent-controlled jurisdiction, petitioning the Rent Board is a safe option. This is also the best option if you have relatively minor repair issues that are not sufficiently egregious to be cited by DBI or if your landlord has unilaterally removed or failed to replace “housing services” such as laundry facilities, parking or elevators.

-Repair and Deduct

A tenant can make repairs herself (or hire someone else to do the repair) and deduct the cost from the rent. A tenant can never deduct more that one month’s rent, and can never “repair and deduct” more than twice within any twelve-month period.

Despite the legal right to repair and deduct, it is almost never the best option. As long as a tenant pays rent in full and on-time, she has a number of legal rights. This is especially true in a rent-controlled jurisdiction such as San Francisco, Oakland, or Berkeley. As soon as a tenant fails to pay her rent in full, a landlord can attempt to evict for non-payment. While the “repair and deduct” constitutes a valid defense, it is still incumbent upon the tenant to demonstrate the need for the repair, the knowledge of the landlord, and the landlord’s repeated refusal to make the repair. For all these reasons, repair and deduct should only be attempted after everything else has failed and only after a tenant has gathered thorough and unquestionable documentation.

Breaking a Lease

Generally when a tenant breaks a lease, the landlord is entitled to all lost rent for the remainder of the lease term. However, landlords must mitigate their monetary damages by making a good-faith effort to re-rent the unit at a similar rental rate. As soon as the unit is re-rented, the tenant is no longer liable to pay future monthly rent. In other words, a landlord is not allowed to “double-dip” – being paid by both you and the new tenant for the same apartment.

In some cases it can be argued that a tenant was forced-out of their unit due to a lack of habitability, a landlord’s refusal to make necessary repairs, a landlord’s refusal to quiet a noisy neighbor, or because of landlord harassment. Being forced to vacate under such circumstances is considered a “constructive eviction.” Determining when a failure to repair is sufficiently egregious that it constitutes a constructive eviction is a complicated issue. There are also a number of steps a tenant should take before he actually breaks a lease. Given this, you should probably consult with an attorney regarding the specifics of your situation.

Security Deposits

A Security Deposit is money that is collected by a landlord to compensate for any damage a tenant does to a rental unit. A security deposit for an unfurnished unit cannot exceed two months rent and the security deposit for a furnished unit cannot exceed three months rent. (Civil Code section 1950.5(c)). No part of the security deposit can be “non-refundable.” (Civil Code section 1950.5(m)).

In addition to a security deposit, a landlord can also charge an “application screening fee” to any potential tenant. (Civil Code section 1950.6). This application fee cannot exceed the landlord’s actual out-of-pocket costs. (Civil Code section 1950.6(b)).

It is important to note that, other than an application fee, a landlord cannot charge a new tenant any other “fees” over and above the security deposit limit. This is true regardless of what the landlord “calls” the fee. In other words the name of the fee or deposit is irrelevant. Only the total amount required matters.

For example: if a landlord offers to rent an unfurnished apartment for $1,000 per month, she can require a reasonable application fee and a security deposit of $2,000. In the alternative, she could also require a reasonable application fee, a security deposit of $1500, a “pet fee” of $350 dollars, and a “cleaning fee” of $150. However, she cannot require a security deposit of $2,000 AND any additional fees other than an application fee. And again, no part of any security deposit can ever be “non-refundable.” (Civil Code section 1950.5(m)).

Tenant Buyouts

When a landlord cannot evict a tenant, or does not want to risk losing an eviction attempt, a landlord may offer a tenant a buyout. In a buyout, the tenant agrees to vacate the unit in exchange for a lump sum payment. Buyouts are always voluntary.

In San Francisco, tenant buyouts are regulated by Section 37.9E of the Rent Ordinance. There are penalties for a landlord if the landlord enters into a buyout agreement without complying with the new regulations.

Prior to initiating buyout discussions, a landlord must file with the Rent Board a notice of intent to negotiate a buyout and must provide the tenant with a notice detailing the tenant’s rights relating to the buyout. The landlord must file the buyout agreement with the Rent Board and must redact the tenant’s name. A tenant has the right to rescind a buyout agreement within 45 days after it is executed.

The buyout agreement will be recorded at the Rent Board and may restrict the landlord’s ability to convert the building to condominiums. These restrictions would apply to subsequent owners as well.

There are penalties if a landlord fails to comply with the new buyout regulations, including civil fines. Additionally, a tenant may sue a landlord if she is damaged by the landlord’s failure to comply with the buyout regulations.

Sale of Building

A tenant often has a great deal of anxiety when a landlord attempts to sell the building in which the tenant resides. Generally speaking, a tenant has the same rights and privileges with any future landlord that the tenant had with any previous landlord – a new landlord simply “steps into the shoes” of the previous landlord.

Landlord Entry into Unit

Although many landlords are often ignorant of the law or simply choose to ignore it, a landlord’s right to enter a rented unit is extremely limited. Once a landlord has rented a property to a tenant, the landlord has given-up the “right to possession” and can only legally regain possession with either a) the tenant’s permission, or b) a court order. Thus, since legally the landlord no longer “possesses” the rented property, his rights to enter that property are exceptionally curtailed.

Under state law, a landlord may only enter a rented unit in essentially seven cases:

  • In case of emergency
  • To make necessary or agreed upon repairs;
  • To supply necessary or agreed upon services;
  • To exhibit the unit to prospective or actual purchasers;
  • To make a return of security deposit inspection;
  • When the tenant has abandoned the premises; or
  • Pursuant to a court order.

This means that, by law, a landlord cannot enter a tenant’s home simply to “check on something,” “look around,” or conduct a routine inspection.

Furthermore, except in cases of emergency, tenant consent, or when the tenant has abandoned the premises, entry may only be made during normal business hours. The law also explicitly prohibits a landlord from abusing the right of access or requesting access simply to harass the tenant.

Again, except in the case of emergency, consent or abandonment, a landlord must provide the tenant with written notice of the intent to enter. The notice shall include the date, approximate time, and purpose of the entry. The notice may simply be posted on the unit’s front door but it must be left in a reasonable amount of time prior to the intended entry. Twenty-four hours notice is presumed reasonable. It should be noted that reasonable oral notice is allowable if the landlord is attempting to exhibit the unit to a potential buyer and gives the tenant a written 120-day notice – 120 days after that written notice is given, a landlord or her agent can then give only oral notice. However, the same reasonableness and lack of harassment rules still apply.

There is often confusion among tenants regarding the written notice requirement and the 24-hour presumption. There is absolutely no rule that requires a landlord to give 24-hour notice prior to entry. Technically, the law only requires landlords to give “reasonable” notice. Under most circumstances, 24-hours is considered reasonable. However, in an emergency, (such as a burst water pipe or fire), no notice is needed at all. On the other hand, 24-hour notice may not be legally sufficient if, for example, a landlord knows that a tenant is out of town and the reason for the entry could easily be postponed.

It is also important to note that this area of law is quite vague and open to multiple interpretations. Terms like “reasonable,” “necessary repairs,” and “normal business hours” are not self-defining. For example, tenant-rights advocates used to argue that realtors could not force tenants to allow entry into their units during weekend “open houses” since weekends were not “normal business hours.” An appellate court recently explicitly held that weekend open houses were permissible under the law, meaning that, under certain circumstances, Saturdays and Sundays now constitute days of “normal business.”

Given all of this, tenants should be careful when refusing entry to a landlord who has given written notice 24-hours before the desired entry. This is especially true in rent-controlled jurisdictions where failure to allow landlord entry may be a just cause for eviction
. Unless the landlord is acting in bad faith, being exceptionally unreasonable, or actively harassing a tenant, it is generally advisable to allow entry. As the old saying goes: “pick your battles.”

Rent Board Petitions

All rent control jurisdictions allow tenants and landlords to file petitions to enforce rental rights. The petitions generally involve either the determination of proper rent, a request for a rent adjustment based on a decrease in services, or a determination of a tenant’s occupancy status.

Landlord Harassment

It is illegal under both state and local law for a landlord to harass a tenant. Landlord harassment can take many forms, but the most common usually involve refusal to make necessary repairs, coercing a tenant into vacating a unit, and refusing to deposit rent checks.

New San Francisco Condo-Conversion Rules

As of 2013, San Francisco passed news laws concerning converting apartment buildings into condominiums. The new rules do not affect buildings with fewer than three units. However, buildings containing five or more units are now permanently barred from ever being converted into condos. Tenants in buildings with three or four units have a number of new protections and rights.

Wrongful Eviction

When a landlord endeavors to evict a tenant in violation of a local rent ordinance or state law. This can be done for a variety of reasons but usually it is purely a financial decision on the part of the landlord.

San Francisco Rent Ordinance

The San Francisco Rent Ordinances limits rent increases on certain units and regulates the reasons for which a landlord can evict a tenant.

The first step in understanding your rights as a tenant is to determine if your unit is covered by the San Francisco Rent Ordinance. Units built before June 13, 1979 are covered under the Rent Ordinance. However, single family homes and condos — even if built before June 13, 1979 — are exempt from the Rent Ordinance’s limits on rent increases. Units built after June 13, 1979 are not covered by the Rent Ordinance, meaning there are no eviction protections (except those provided by state law) and there is no limit on rent increases.

The Rent Ordinance limits rent increases to 60% of the CPI for the Bay Area. For rent increases that go into effect between March 1, 2014 and February 28, 2015, the maximum allowable rent increase is 1.0%. However, if a landlord does not impose a rent increase in a given year, the landlord is permitted to “bank” that rent increase and impose it in subsequent years.