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My Master Tenant’s Fallen In Love, Am I Screwed?

My Master Tenant’s Fallen In Love, Am I Screwed?

My Master Tenant’s Fallen In Love, Am I Screwed?

Renters wait for hours to apply for a Tenderloin studio apartment priced at $2500.00 per month.

Master tenant in love

So in the midst of Rentpocalypse 2012, I managed to score a nice room in a spacious flat at a reasonable rate. I know, right? It’s been a good year. Concurrently, however, the master tenant has fallen a little head-over-heels for someone and has increasingly been spending time at their place. As in enough time that even her cat spends more nights over there than in the apartment lately.

I’m thinking there’s a non-zero possibility that she could be moving out, and possibly soon. Not to push my already good luck, but I was wondering: As a subtenant, what are my rights if she gives notice? Would I have to negotiate a new lease entirely? Would I inherit any rent protections? The only interaction I’ve had with the landlord, in writing or otherwise, was a check written out to him personally for August rent, which he cashed.

Master tenant in love? Welcome to Rentpocalypse 2012! Have a seat, but don’t stay too long.

As you might guess, this is a common scenario, but at least you are in the position to gather information and make some plans.

You don’t mention how rent the landlord is receiving for the flat. If your roommate has leased the unit for fifteen years and the rent is $2,000 per month below market, the landlord will have plenty of incentive to increase the rent if your roommate departs. On the other hand, your roommate will have plenty of incentive to keep the place until she is absolutely certain she wants to move.

You need to speak to your roommate and ask her if she has any future plans to move. Point out that it is important to understand her plans because it’s likely that you will either have to pay increased rent or move as well. Read last week’s column to understand why.

Essentially you are a subsequent occupant as defined by Rent Board Rule & Regulations §6.14(c). Your landlord will be entitled to increase the rent when you vacate.

I don’t put too much stock in the argument that because the landlord cashed a couple of your checks, you’ve established a new tenancy. The Costa Hawkins Rent Housing Act (which should be repealed) in Civil Code §1954.53(d)(4) states:

“Acceptance of rent by the owner shall not operate as a waiver or otherwise prevent enforcement of a covenant prohibiting sublease or assignment or as a waiver of an owner’s rights to establish the initial rental rate unless the owner has received written notice from the tenant that is party to the agreement and thereafter accepted rent.”

You should keep paying the rent to the landlord because the longer that goes, the stronger the argument that you are a party to the agreement. But you should not have any illusion that you can keep renting the flat at the current rate simply because you paid rent directly to the landlord.

Go to the San Francisco Tenants Union to more fully discuss your potential issue.

More importantly, talk to your roommate. Hopefully, she doesn’t have any immediate plans to move. Knock on wood. Maybe you can ride out Rentpocalypse.

Call the Tenant Lawyers now for a free consultation.
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If Our Roommate Moves Out, Can Our Landlord Jack Up Our Rent?

If Our Roommate Moves Out, Can Our Landlord Jack Up Our Rent?

If Our Roommate Moves Out, Can Our Landlord Jack Up Our Rent?

My home is a duplex with my landlord living in the apartment above. It was built before 1979.

The original tenants moved in two and a half years ago. We will call them Dan, Josh and Ted. Ted moved out after the first year and my boyfriend moved in and signed a year lease with Dan and Josh.

After a year Dan moved out and I moved in but I did not sign a lease, my boyfriend and Josh signed a six month lease.

The six month lease is nearly up and my boyfriend and I would like to renew with a year lease without our third roommate Josh. My landlord wants to raise our rent claiming “the original tenant is moving out.”

My boyfriend has now been on two leases (one for a year and the other for 6 months) in this apartment, is he not considered an original tenant at this point? Is my landlord allowed to raise the rent any amount they wish? We have always paid on time and have never complained nor been complained about in this apartment and I am worried we will be taken advantage of if we don’t familiarize ourselves with the SF laws.

It’s not completely clear to me if the leases your boyfriend signed were subleases or leases also signed by the landlord. I’m going to assume that when your boyfriend originally moved in, he and Dan and Josh all signed a new lease with the landlord. I’m also assuming that your boyfriend and Josh signed the six-month lease with the landlord.

As you are probably aware, if your boyfriend only signed a sublease with the original tenants, your landlord may be able to increase the rent.

This is why a lawyer may ask questions to which the answers seem obvious. When you stated that your boyfriend “moved in and signed a year lease with Dan and Josh,” I thought he may have signed a sublease. The rest of the facts, however, indicate to me that the leases were negotiated with the landlord. Of course, the distinction is crucial to determining if your boyfriend is a co-occupant or a subsequent occupant.

Given my assumption, your boyfriend is clearly a “co-occupant” for purposes of the Rent Ordinance Rules & Regulations §6.14(a)(3): “‘Co-occupant’ for purposes of this Section 6.14 only, is a subsequent occupant who has a rental agreement directly with the owner.”

Rules & Regulations §6.14(c), the section applicable to your boyfriend, states: “When all original occupant(s) no longer permanently reside in a rental unit, and the last of the original occupants vacated on or after April 25, 2000, the landlord may establish a new base rent of any subsequent occupant(s) who is not a co-occupant and who commenced occupancy of the unit on or after January 1, 1996 without regard to the limitations set forth in Section 37.3(a) of the Rent Ordinance…”

Note that your boyfriend is not an original occupant within the meaning of §6.14 (a)(1): “Original occupant(s)” means one or more individuals who took possession of a unit with the express consent of the landlord at the time that the base rent for the unit was first established with respect to the vacant unit.

That brings up another issue. If the landlord increased the rent more than the Rent Ordinance annual allowable increase in one or both of the subsequent leases, you may be able to petition the Rent Board for an illegal rent increase.

Between you and me, when I read your question I thought, “WTF, the guy’s named on the lease. This landlord is out of his frickin’ mind!” But when I reread §6.14, which as usual, has the effect of a combination of Seconal and Wild Turkey, I understood your landlord’s confusion. Your boyfriend is not an original tenant/occupant, but the landlord still cannot increase the rent.

Rules & Regs §6.14 issues are always complex and one should always discuss them with someone trained in the nuance of the Rent Ordinance. Where can you find such a person? At the San Francisco Tenants Union! You can go over the facts with a counselor there and fashion a letter stating the applicable law, informing the landlord that he can’t increase the rent over the allowable limit.

Call the Tenant Lawyers now for a free consultation.
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I Think My Landlord Is Crazy, Do I Need To Move Out?

I Think My Landlord Is Crazy, Do I Need To Move Out?

I Think My Landlord Is Crazy, Do I Need To Move Out?

The landlord is crazy.

So here’s the deal. I just moved to Lafayette to a unit sight unseen from across the country. Gotta do what you gotta do, right?

I offered to do all the paperwork necessary weeks before I moved, but the landlord declined, saying I could just move into the unit when I got here. Risky, but I went for it, and moved in June of this year.

The rental is basically half of a house, bordered from the rest of the house with a door in the kitchen. There are two mini-fridges, tiny stove and a bar sink to serve as a kitchen. I’m glad i don’t need a hot plate.

The landlord is a retired military (navy) man and is a Romney supporter, I know this’ not through conversations, but because we share a mailbox. He has a tenuous grasp of reality. He will leave me these nasty notes on the door, telling me to move my moving truck, or sign a rental application (threatening eviction), the latest is that he wanted $25 to do a credit check, and he held a delivery of mine, insinuating that I couldn’t have my package until I got him a credit report.

It’s month to month rental, and a fairly boilerplate lease (more of a form). So I’m just wondering what I should do. It’s obviously not bad enough to warrant moving out, but it is annoying and illegal.

Additionally, I have zero property history here besides this tenancy. Finding another place will be difficult without a good local reference, so I don’t want to burn this particular bridge.

Welcome to California. As a new resident of our lovely state you need to understand that you have very few rights as a tenant despite the fact that we are considered to be one of the more progressive states in the field. If you have to drive though a tunnel to get to San Francisco, the chances are about 100 to 1 that you don’t have local rent control to strengthen your tenant rights.

It’s usually a bad idea to live in the same building as your landlord, much less the same unit. Why? Because most landlords think they own you. They think they can control “Every breath you take; And every move you make; Every bond you break, every step you take; I’ll be watching you.” Like in the song by the Police, some landlords can be conflicted about the control they want to exert. They want the drama, the interaction, and they just really want you to love them. It’s, like, stalker fucked up. Sound familiar?

Your landlord cannot demand a credit check now because you already live in the unit. The purpose of a credit check is to determine if you are eligible to rent. So you can tell the Admiral to go to hell on that one.

Tampering with the mail is a federal offense. You can let Captain Queeg know that you will report him to a postal inspector if he continues to do so.

Finally, it is likely that you are living in an illegal unit. I’ll bet any amount of dough that the landlord did not get building permits to divide the house in half.

So what would be bad enough to warrant moving out? Does the landlord have to demand that you swab the the poop deck at four bells every day to get you to consider getting out.

Here’s what I would do. First I would call the City of Lafayette Code Enforcement Department and ask for an inspection to determine if the construction dividing the house is illegal. Then I’d give thirty days notice to vacate. Finally, I’d get all my evidence together to sue the landlord when he refuses to return the security deposit (if you have one.)

The bridge you don’t want to burn is a bridge to nowhere. You were never going to get a good reference from Captain Ahab anyway. Time to find some metaphorical gasoline.

Call the Tenant Lawyers now for a free consultation.
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Can My Landlord Hang On To My Deposit For Utility Bills?

Can My Landlord Hang On To My Deposit For Utility Bills?

Can My Landlord Hang On To My Deposit For Utility Bills?

My husband and I vacated an apartment in the Marina district in May.  We paid rent for 6 days more than we stayed in the apartment We have not received our deposit back even though California law states the landlord has 21 days.  

When I followed up with the landlord he said he is working on tallying up the bills for the past 15 months to deduct from our deposit and he just received some of the last month of bills.  Our rental agreement states we would pay 2/3’s of certain bills (water, garbage, electricity for the garage, cable) because he lived in the unit above by himself and there were 2 of us.

We were disappointed he did not give these bills to us monthly and is now deducting from our deposit. We had requested these bills multiple times while living in the unit and he always said he would work on putting a spreadsheet together showing what we owe and never did.  Unfortunately, we do not have any of these requests in writing.  

I am guessing he is legally allowed to deduct these from our deposit, but would appreciate confirmation.  Additionally, does the 21 day rule not apply since he was waiting to receive a utility bill?

I don’t think Civil Code § 1950.5, the statute dealing with the collection and refund of security deposits, is applicable to collect utility bills.

California Civil Code § 1950.5(b)(1-4) allows the landlord to deduct from the  tenant’s security deposit for four purposes: (1) For unpaid rent; (2) For cleaning the rental unit when the tenant moves out, but only to make the unit as clean as it was when the tenant first moved in; (3) For repair of damages, other than normal wear and tear, caused by the tenant or the tenant’s guests; and (4) If the lease or rental agreement allows it, for the cost of restoring or replacing furniture, furnishings, or other items of personal property (including keys), other than because of normal wear and tear.

In other words, there is no provision in the code to deduct utility bills from a security deposit.

The short answer to your question is that the 21-day period does apply. You can send a demand letter to the landlord requesting the return of your security deposit in, say, five days, and remind him if he fails to pay, you’ll sue him in small claims court for the deposit plus twice the amount of the deposit as statutory damages.

A more complex analysis will, however, recognize that the landlord will be able to file a cross-complaint for the utility bills if you sue him for the deposit.

I think you should send the landlord a demand letter if only to get him off his ass. If he provides the bills, they are accurate and you do owe the landlord, make an arrangement to settle the whole thing.

Check in with San Francisco Tenants Union to get advice about what to include in your demand letter.

Call the Tenant Lawyers now for a free consultation.
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Is It Too Late For Me To Sue To Get My Security Deposit Back?

Is It Too Late For Me To Sue To Get My Security Deposit Back?

Is It Too Late For Me To Sue To Get My Security Deposit Back?

by  | Jun 13, 2012 | Tenant Troubles Classics

I moved out almost 2 years ago. It will be 2 years on this June 1, 2012. Is it too late? I never received my deposit or, any of it. How do I represent myself to the judge. I’ve seen judges before. They throw out cases because the plaintiff did not have their stuff together. What do I say? Do I quote CA laws? Is it just as simple as walking in and saying here’s my typed, signed apartment lease? I did send letters about the deposit and made copies and calls…

I just don’t understand why some tenants wait so long to sue for security deposits. It seems to me that you’re either going to invest the time and energy to go after a landlord who stole your security deposit or not. Landlords steal security deposits because they can. They bank on the fact that many tenants will simply walk away. Remember the scene in the movie, Fight Club, when “Jack” (played by Edward Norton) describes his occupation to a fellow passenger on a plane?

On a long enough time line, the survival rate for everyone drops to zero. I’m a recall coordinator. My job is to apply the formula. A new car built by my company leaves somewhere traveling at 60 miles per hour. The rear differential locks up. The car crashes and burns with everyone trapped inside. Now, do we initiate a recall? Take the number of vehicles in the field, (A), and multiply it by the probable rate of failure, (B), then multiply the result by the average out-of-court settlement, (C). A times B times C equals X. If X is less than the cost of a recall, we don’t do one.

Landlords calculate their risk in a similar fashion. Take the total amount of the security deposits you hold (A), and multiply it by the probable rate of tenants asserting their rights, (B), then multiply the average judgment in small claims court, (C). A time B times C equals X. If X is less that the total amount of security deposits you hold, you don’t bother to refund any of them. Of course, that practice could change if the rate of tenants asserting their rights increased. Or if the amount of statutory damages awarded by courts increased. But tenants can’t count on the courts to fight their battles. I’m glad you’re finally going to do something about recovering your deposit. I answered a similar question to yours almost three years ago in Tenant Troubles: Sue For Security Deposit Or SOL? You may still have time to sue the landlord:

Security deposits in California are governed by Civil Code §1950.5. The statute of limitations begins to run when the claim “accrues.” In security deposit cases, the claim accrues on the 22nd day after you move out because the landlord has 21 days to refund. There is a two-year statute of limitation on claims for the breach of an oral contract. If you do not have a lease or written agreement with your roommate or landlord, your claim may already be going down the drain. Speak to a lawyer immediately and/or file it! Generally, one has three years to sue for a liability created by statute which could include security deposit actions since they are governed by specific statute like Civil Code §1950.5. It is unlikely that a court would find that this could apply to an oral lease because any action on the lease would be barred after two years. On the other hand, the statute of limitation for a written lease is four years.

A judge will throw your case out if you don’t have your shit together. One way to avoid this is to prepare a brief outlining the facts of the case and the applicable laws to present to the judge with your evidence when he or she hears the case. Brief means brief–no more than a couple of pages. No, you don’t just bring in a copy of your lease. Think about it. What will that prove? Will it prove that you didn’t spray paint FUCK YOU! all over the walls of the unit before you left? You may hear an allegation like that from the landlord. “The place was a pig sty.” “The tenant owed rent.”… etc. Read my blog post, Grand Theft Security Deposit. Get a copy of Everybody’s Guide to Small Claims Court in California, from Nolo Press. Go to the San Francisco Tenants Union to discuss your case and how to present it.

Call the Tenant Lawyers now for a free consultation.
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My Landlord’s Selling My Building, And Now I Have To Fill Out A Bunch Of Forms?

My Landlord’s Selling My Building, And Now I Have To Fill Out A Bunch Of Forms?

My Landlord’s Selling My Building, And Now I Have To Fill Out A Bunch Of Forms?

We got two forms from our landlord, who is in the process of selling the 3-unit Victorian in which we live.  We two, 53 & 64, have lived in our unit since August 1990.  We were wondering if we are legally required to fill out these forms.  They are both from the SF Association of Realtors.

The first is a request for information under Sections 37.9(i) and (j), about protected class status.  The second is a general form asking about the lease (we are month-to-month), such as deposits, current monthly rent, date of last rent increase, amount of increase, etc.

Your question is a common one. The sale of a building, especially a smaller building, justifiably creates anxiety for tenants. The other shoe is going to drop and you don’t know how or when.

Your question also indicates to me that your landlord did not serve you a “Disclosure of Rights to Tenants Before and After Sale of Rental Units Subject to Section 37.9” as required by Rent Ordinance §37.9(k). The mere service of the required disclosure could alleviate some anxiety for tenants, but what self respecting landlord or real estate agent would want to do that?

The forms you described are legally characterized as “estoppel certificates.” Estoppel is the fancy legal term for preventing a person from asserting a fact or a claim inconsistent with a position they previously maintained. They are meant to “estop” (prevent) a new buyer from claiming he  or she didn’t know about agreements made to modify an existing lease. More importantly,  your statements in an estoppel form could be used against you if you make later inconsistent claims.

The short answer to your question is no, not unless your lease requires you to fill out the forms. Leases written in 1990 usually do not contain terms stating that a refusal to sign an estoppel form constitutes a breach of the lease.

Rent Ordinance §37.9(k) (E) is clear that the disclosure must contain:

“A statement that tenants are not required to complete or sign any estoppel certificates or estoppel agreements, except as required by law or by that tenant’s rental agreement.  The statement shall further inform tenants that tenant rights may be affected by an estoppel certificate or agreement and that the tenants should seek legal advice before completing or signing an estoppel certificate or agreement.”

Regarding the first form, there is no harm in filling that out. Why? Because the new buyer should understand that you are protected tenants for the purpose of an owner move in eviction under Rent Ordinance §37.9(i)–one of you is over 60 years of age and you’ve lived in the unit for 22 years. I think it is a good idea to disclose any disabilities as well.

Regarding the second form requesting general information,  at the San Francisco Tenants Union, we recommend that you should think about disclosing information to a new buyer and put that information in a letter rather than limiting yourself to the form.

After 22 years it is likely that your use of the unit has changed since you signed the original lease. For example, if you receive verbal permission from the landlord to have pets even though the lease prohibits pets, you should disclose this to a prospective buyer.

My general advice is to think about how your tenancy has expanded over the years. Do you now use a storage space? Are you allowed to use the roof deck or back yard? All of this should be disclosed in a letter to the prospective buyer.

Of course, if you have an oral agreement, it is likely that the terms only include an amount of rent and a date to pay. In that case, your letter should point out that you have an unrestricted right to sublet and that your pet rhinoceros is allowed to graze in the backyard.

It is a good idea to drop by the San Francisco Tenants Union to speak with a counselor about how to construct your response to the landlord’s request for information.

Call the Tenant Lawyers now for a free consultation.
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Can Our Landlord Kick Us Out When Our Roommate Moves?

Can Our Landlord Kick Us Out When Our Roommate Moves?

Can Our Landlord Kick Us Out When Our Roommate Moves?

I’ve lived at my home for over 2 years, my girl friend and I replaced two roommates who were on the original lease. The house was built in the 1940s and monthly rent has been $2400 the entire duration of lease. The original roommate still left on the original lease is moving out on the first. We would love to stay at the home and replace his room with a good roommate.

The landlord has contacted us stating that he needs us to fill out an application for a new lease – as well as pay a security deposit for the home. To make a long story short, the house has been in terrible shape since we moved in due to the prior roommates who were kicked out- holes in walls, filthy pet damaged carpets, plumbing leaks, paint peeling inside and outside, possible roof leaks/mold, leaking/moldy basement, large gashes in a few walls, broken doors throughout home and the front door frame is extremely damaged and not secure from a safety standpoint.

We spoke to the landlord for the first time today and he wants to meet us to discuss the application and what will happen after he conducts a walk thru with the old roommate to figure out how much security they will get back. After being told about the security deposit and need to show the room to potential roommates.

We asked if/when he would do things like paint and replace carpets and make fixes to the home because of the extreme shape the home was in and he gave us the impression that he wasn’t planning to fix anything and it was up to him to decide if we can even stay here and if he will fix anything while requiring a security deposit.

I’ve done some research and saw that we might qualify for a novation from our roommate who is moving out, which would then make us responsible for paying him any security deposit that would be due back. I do not know if this would be a option for us?

We are just worried that the landlord will either kick us out after we fill out a application, require a huge security deposit without making any fixes to the home or raise rent to an extreme amount. We are in great standing with our old roommate so I’m sure he would be ok with a novation or another option I don’t know about.

What are our options at this point? We are PT students with FT jobs, so a rent raise, having to suddenly move or huge deposit requirement would be too much for us at this point. I would appreciate any advice you could send me- thank you for your time spent on my questions.

I worked at the Homeless Advocacy Project while I was attending law school. In the first year of law school one usually studies contracts. In my case the class was two semesters. I came across the concept of “novation” one day and I asked my boss, a former California Supreme Court clerk, to clarify the meaning.  She looked at me, wryly smiled and said, “You know, Dave, it’s been a long time since I was in law school, but I think novation occurs when the sun goes supernova.”

I still get a laugh when I think of that moment and I have come to understand the irony of her comment–discussing the legal concept of novation in an office full of people desperately trying to survive a bit like rearranging deck chairs on the Titanic.

A novation is the substitution of all new parties in an existing contract. For example, if you stay in the house under the old lease, the landlord is essentially allowing the old roommate to assign the lease to you. By offering you a brand new lease, the landlord is offering a novation. Signing a new document with your roommate, depending on the terms of the existing lease, is usually a waste of time.

Back to my original point, you’ve got bigger fish to fry.

Remember, because you live in a house, a single-family dwelling, you are only protected by the “just cause” provisions of the Rent Ordinance, not the price controls. The landlord can increase the rent as much he wants unless:

1) The dwelling or unit has been cited in an inspection report by the appropriate governmental agency as containing serious health, safety, fire, or building code violations, as defined by Section 17920.3 of the Health and Safety Code, excluding any violation caused by a disaster.
(2) The citation was issued at least 60 days prior to the date of the vacancy.
(3) The cited violation had not been abated when the prior tenant vacated and had remained unabated for 60 days or for a longer period of time. However, the 60-day time period may be extended by the appropriate governmental agency that issued the citation. (California Civil Code §1954.53(f))

However, because you may be approved subtenants, despite the landlord’s request for new applications, it is unlikely he has just cause to evict you, unless he wants to hold you and your roommates responsible for the damage caused by the former roommates (waste).

I think you’re doing everything you can to try to convince the landlord you can be good tenants. I understand that the rental market is tough out there, but why would you want to continue to rent from a slumlord who won’t spend the money to fix a leaky rook? Believe me, from your description, the roof leaks. Why should you have to spend the time and money to repair deferred maintenance? I do believe that you should repair damage caused by you or the other tenants, but that’s it.

Finally, let’s say the landlord does make an agreement with you. You lease the house and sign a one-year lease. Let say you fix up the place and make it cozy. That will certainly give the landlord incentive to increase the rent to whatever the market will bear next year.

If you really want to try to make a deal with the landlord, take your photos and documents to the San Francisco Tenants Union to develop a strategy, which may include calling a housing inspector.

My personal opinion is that you shouldn’t waste your time and energy on this joint. You should be looking for another place to live. You know, bigger fish to fry.

Call the Tenant Lawyers now for a free consultation.
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