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Can My Landlord Search My Apartment For Pot?

Dave’s at the SF Appeal to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com

So, I just got this letter in the mail from the real estate company who owns the apartment building I’ve live in (about 15 units), and it just seems weird to me:

INSPECTION OF PREMISES – for Unsanitary Living Conditions, Hoarding, Alterations, Pets, and growing, cultivation, sale or use in any form of marijuana.

The owners and management company will notify and issue a 24-hour notice to inspect the units and building for Unsanitary Living Conditions, Hoarding, Alterations, Pets, and growing, cultivation, sale or use in any form of marijuana to protect and secure ALL tenants in the building.

IMPORTANT NOTE
Refusal to allow access is just cause ground for eviction Please do not lock the bedrooms, our owners; contractor and insurance representative would like to see the condition of each room.

Your advance cooperation is greatly appreciated by the Owners and [redacted].

Do no hesitate to contact this office if you have any questions or comments.

(All whacky punctuation is theirs.)

So, first, the obvious: Marijuana growing or any kind of use?? Are they going to check all the ashtrays and garbage cans for roaches and seeds? How much are they allowed to search? And ARE they allowed to search for something like a half smoked joint somewhere on the premises? I realize pot is illegal, and that counts as illegal activity, but do I really have to toss my stash? (Just kidding. Of COURSE I don’t have a stash!)

Second, does 24-hour notice have to come in the form of a phone call? Or can they mail a letter that I might not get until the day of or after the inspection and have that count as 24-hour notice? And do I really not have the right to insist on a different day if I prefer?

Lastly, who decides what counts as “hoarding” anyway? Could they evict a tenant for having too many magazines stacked next to the bed because they deem that as hoarding? I mean seriously, WTF? And even if they were to claim something like that as hoarding, can they evict you then and there, or does a tenant have a legal right to rectify the situation and keep their apartment?

From what I understand of the code about landlord entry and from your earlier column, they can only come in the case on an emergency, to make repairs etc. that we’ve agreed upon, or to show the unit to potential buyers or tenants. I guess the real question is, are they allowed come in for the reasons they are listing?

If they aren’t, then they can’t really evict me for refusing, right? And, if they aren’t allowed to come in for this “inspection,” and were to do it anyway, essentially illegally, then how could they use anything they find as a legal means of eviction?

But seriously. Looking for POT? And hoarding? WTF?!

WTF?! I have always said that successful real estate brokers and sales people are proof that the United States is not a meritocracy. Imagine my disdain for those involved in property management–real estate “industry” groupies who will do anything to rub up against the big money. I’m guessing that the recent real estate conference, “It May Not Be As Easy To Steal, But Sure As Shoot You Can Still Lie!” had a seminar called, “Evict ‘Em Now Before It Becomes Legal.”

This notice comes straight from the CitiApartments playbook.You probably heard the story about how their goon squad illegally entered an apartment, videoed a bong and then threatened the tenant with eviction for illegal drug use. An entry based on this notice or a subsequent notice with a date and time would be just as illegal from my reading of California Civil Code §1954. Reread “Sorry, CitiApartments, Routine Inspections Are Illegal.” Remember any such notice must be in writing, no phone calls.

We live in a cynical era where politicians and demagogues advance their own petty agendas by justifying them in the name of security. We all know that the Fourth Amendment, indeed the entire Constitution, has taken a beating for the last 30 years. It’s not surprising that I have seen an uptick in landlord demands for passports and greencards of visitors and relatives or inspections like this. My take on this (and I may be too idealistic) is that one still has to get a warrant to search for marijuana in this manner. The key exception is emergency or “exigent circumstances” when the court will allow a warrantless search. But this applies to the police.

Landlords still can’t deputize themselves, declare an emergency and demand entry. I hope I’m not being naïve. Because we don’t live in Arizona, I find it hard to believe that the police would act on an emergency call from the management company based on any of the allegations above. That’s not to say the landlord won’t make something else up, however, they would not be able to conduct the inspection in the manner they wish if the cops are searching for roaches and seeds. If you find yourself in the unfortunate position of asking a cop to see the warrant, show him the notices and suggest (as delicately as possible) that he has been duped by the landlord, wasting valuable public resources.

Real hoarding and cluttering, not a stack of magazines next to the bed, is often the symptom of a disability–depression, elderly dementia, obsessive/compulsive disorder. In my experience at the Homeless Advocacy Project where I more or less specialized in the issue, you know hoarding and cluttering when you see it or smell it. There is a real nuisance or fire hazard.

I’ve seen three-bedroom apartments stacked to the ceilings with newspapers, magazines, clothes and trash. I had a client who, literally, picked up every cigarette butt and every shiny object or piece of metal he found on the street and took it home to supply and construct his spaceship.

Often landlords learn of the problem because other tenants report cockroach and mice infestations or unrepaired leaks from above. If a person is threatened with eviction for creating a nuisance by hoarding, they can often request a reasonable accommodation for their disability to get the time and resources to clean up the mess. If you know anyone in your building who may be hoarding and vulnerable to eviction, refer them to the San Francisco Mental Health Association or the Homeless Advocacy Project.

Your final question is the most difficult one because it presents the universal tenant conundrum. How can you enforce your rights if the landlord tries to evict you illegally based on this idiotic notice? Lawyers are expensive. While many tenant lawyers, ourselves included, will take an occasional case to make a point, it doesn’t happen that often. That’s why many advocacy groups may suggest that you allow entry so you won’t jeopardize your tenancy.

It’s a shitty deal. It’s the reason to contact your legislators, the courts and anyone else involved in the program to find out how you can voice your issues to help implement the new law in California guaranteeing low income tenants the right to representation at an unlawful detainer. Call Tenants Together and ask how you can get involved.

In the meantime, put down that joint, hide your stash, toss the magazines and inform the management Nazis, in writing, that you feel secure enough in your building and that their pre-notice is illegal pursuant to Civil Code §1954.

If you receive another notice, try to take it to the San Francisco Tenants Union or a tenant lawyer to develop a strategy for your next response.

Crow & Rose's legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

I do not provide legal advice in the comments section. Please feel free to contact me directly if you have a legal question.

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