Surveillance Camera Pointed at My Door, What Can I Do?

Surveillance Camera Pointed at My Door, What Can I Do?

Surveillance Camera Pointed at My Door, What Can I Do?

I’m a 14-year rent controlled tenant in the TenderNob. Two years ago my landlord surreptitiously trained a surveillance camera well-disguised as a smoke detector at my unit door—and only at my unit door. In fact, it’s the only camera in the entire building, a building with a long history of mail package thefts in its lobby.

The camera was ostensibly placed in front of my door in anticipation of an eviction filing to come the following calendar year, to collect evidence for said filing in other words. The rather flimsy nuisance eviction attempt never came close to trial, though exactly one deposition was taken and the stress of the whole thing totally dominated by 2017. But the camera, for the most part, flopped as an evidence collection tool, on this occasion at least.

But now the camera-cloaked-as-faux-smoke-detector remains fixed in place directly aimed at my unit door and the landlord has refused to move it after multiple requests every few months. I am not allowed to access the camera, or understand how it works, or how the footage of me and all my guests is collected or stored. The hidden camera isn’t going anywhere. But this feels like such a long-term invasion and completely makes toxic my relationship with my landlord as long as it records all my comings and goings and those of all of my guests.

To be clear, the camera is placed on the common hallways ceiling (8.5-9’ high) and is about 8 feet in front of my unit door. Based on the still frames that were discovered in last year’s aborted eviction, the camera only captures my door, no others, and only records individuals who enter and exit my unit. And the camera can see inside my unit, but only just about 4-5 feet into my entryway/hallway area. The camera ostensibly never stops recording my unit door and has been doing so since summer 2016.

The party line among the various legal counsel to whom I have spoken about this, is that such tactics are per se legal, even under our comparatively tenant-friendly SF Rent Ordinance, because landlords can always place cameras in their common areas and that litigating such tactics would be a total waste of time for any tenant in my position.

After almost 2 full years of non-stop, targeted surveillance, these security camera bromides are getting harder and harder for me to swallow. Don’t such targeted surveillance cameras violate at least the spirit and intent of our Rent Ordinance by applying undue pressure on specific tenants like me to give up their longstanding, well-below-market rental units with the apparent intent of tenant turnover and increasing the yearly value of such a unit two or threefold?

Is there really nothing that can be done under the Rent Ordinance or at the Rent Board to challenge such heavy-handed landlord tactics? Doesn’t the now long-term nature of the surveillance targeted at me at least make it more egregious and potentially more actionable? What if this lasts for another 15 years? When, if ever, does targeted 24/7 unit surveillance cross over the line into landlord harassment? Please examine this from all the angles, as I know I am not alone and this problem is sure to only get worse as such technology becomes more mainstream and affordable.

The “bromides” to which you refer, reflect a common apathy about the use of surveillance cameras everywhere—the slowly boiling frog approach to an “inevitable” societal slide into a police state. As long as we accept, without question, a surveillance state, the short answer to your question is: no, there isn’t much that can be done.

The rationale for the use of surveillance cameras.

Any policy adopted to diminish the right to privacy, finally recognized as a constitutional guarantee in Griswald v, Connecticut (1965) 381 U.S. 479, will be based upon an urgent need that trumps that right, e.g. national security, crime prevention, etc. Landlords often justify a decision to install surveillance cameras outside and in the common areas of a building as bid to to provide a safe, secure residential environment. Landlords will point out that they have a duty to their tenants to do so.

The landlord’s duty.

I read several California cases that define a landlord’s duty to provide security for tenants:

“Out of the generic obligations owed by landowners to maintain property in a reasonably safe condition, the law of negligence in the landlord-tenant context has evolved to impose a duty of reasonable care on the owner of an apartment building to protect its tenants from foreseeable third party criminal assaults. Thus, the question of a landlord’s duty is not whether a duty exists at all, but rather what is the scope of the landlord’s duty given the particular facts of the case?” —Vasquez v. Residential Investments (2004)118 Cal.App.4th 269


“The scope of a landowner’s duty to provide protection from foreseeable third party criminal acts is determined in part by balancing the foreseeability of the harm against the burden of the duty to be imposed. In cases where the burden of preventing future harm is great, a high degree of foreseeability may be required. On the other hand, in cases where there are strong policy reasons for preventing the harm, or the harm can be prevented by simple means, a lesser degree of foreseeability may be required. Duty in such circumstances is determined by a balancing of ‘foreseeability’ of the criminal acts against the ‘burdensomeness, vagueness, and efficacy’ of the proposed security measures.” —Yu Fang Tan v. Arnel Management (2009) 170 Cal.App.4th 1087.

Generally, intervening criminal acts will negate a landlord’s duty to a tenant if the criminal act was unforeseeable. For example, if a tenant is mugged outside of his or her building by an unknown assailant, usually the landlord will not be held liable. The law can impose landlord liability for criminal acts when the building is located in a high crime area and/or the landlord is informed of a specific threat and does nothing to prevent it. California cases have found a landlord liable for refusing to repair security gates, ignoring repeated requests by tenants to repair, for a subsequent rape in the building. A landlord breached his duty when he  received prior written notice that a tenant in the building had brandished a shotgun at another tenant and a visitor in an angry and threatening manner.  A landlord had duty to replace missing glass on apartment door murderer used to obtain entry

Foreseeability as a crucial factor in determining the existence of duty. A duty to take affirmative action to control the wrongful acts of a third party will be imposed only where such conduct can be reasonably anticipated. Ann M. v. Pacific Plaza Shopping Center (1999) 6 Cal.4th 666.

All of the cases I read imposed liability upon a landlord who failed to act given the specific foreseeability of the given act. None of the cases imposed a duty to provide security guards in in a building because the court assessed that providing such guard would impose an undue burden upon the landlord despite foreseeability. I could not find any cases that established a landlord’s duty provide camera surveillance in a building.

Your landlord may justify the installation of the camera for safety and security of the building, but as far as I can tell, he does not have the duty to provide it, nor would he be able to prove its efficacy to provide safety or security, nor would he be liable for unforeseen criminal liability, despite the surveillance.

Surveillance does not prevent crime.

After the Boston Marathon bombing a great deal of attention and praise was lavished on surveillance systems, public and private, aiding in the apprehension of the bombers, but the surveillance did not prevent the bombing.

“An increasing number of American cities and towns are currently investing millions of taxpayer dollars in surveillance camera systems. But few are closely examining the costs and benefits of those investments, or creating mechanisms for measuring those costs and benefits over time. There is extensive academic literature on the subject—studies carried out over many years—and that research strongly indicates that video surveillance has no statistically significant effect on crime rates.” —ACLU Expert Findings on Surveillance Cameras.

The ACLU report cites serval studies done in Great Britain and the United States.

There may be some small impact on property crime. Think the TV commercials that show the would be thief about ready to grab your Christmas gifts from the front porch when he notices the camera and decides to pick another house.

Cameras installed in an LA housing project may have played a role in preventing a substantial escalation of crime relative to surrounding areas, since the housing project was the site of a gang war during the period of the study. Yet, “meta-analyses from the UK, along with preliminary findings from the US, indicate strongly that video surveillance has little to no positive impact on crime.”

The true aim of surveillance—compiling dossiers and exerting control.

“We are not safer from terrorism with security cameras in our cities. Particularly terrorists who are willing to die, security cameras do not control their behavior. They would not stop them from planning to pull off an attack. Cameras don’t just watch criminals, but they watch everybody. Someone visits their psychiatrist every Monday at two in the afternoon, traveling through public spaces. Where they’re going is known to nobody, but a network of cameras could pull that out of obscurity. That info is known to government officials.” —Jim Harper, Director of Information Policy Studies at the Cato Institute.

I suspect that ubiquitous surveillance in this country will be used to more and more to compile dossiers and to eventually disrupt (or worse) dissidents, troublemakers who would wrest control from the privileged few, like landlords.

In my experience landlords only spy on a specific tenant for two reasons: 1) to determine if a tenant principally resides in his or her rent controlled unit, and 2) to make a tenant uncomfortable in his or her home. Despite the fact that the landlord tried to evict you for an alleged nuisance does not justify the surveillance and, as you pointed out, the surveillance evidence flopped and was likely inadmissible at trial. But the cameras keep rolling and you’re not ready for your closeup.

Your landlord has gone full Dick Cheney on you and his continued surveillance demonstrates my earlier point that he is compiling whatever evidence he can and, yes, harassing you in the process.

Can you call the cops for this type of landlord surveillance?

The disguised camera is only pointing at your doorway, which indicates that the landlord has singled you out, but California law only punishes those who attempt to procure confidential communications or who want to snoop for more salacious purposes.

California Penal Code § 632(a)  provides: “A person who, intentionally and without the consent of all parties to a confidential communication, uses an electronic amplifying or recording device to eavesdrop upon or record the confidential communication, whether the communication is carried on among the parties in the presence of one another or by means of a telegraph, telephone, or other device, except a radio, shall be punished by a fine not exceeding two thousand five hundred dollars ($2,500) per violation, or imprisonment in a county jail not exceeding one year, or in the state prison, or by both that fine and imprisonment.”

The case law interpreting Penal Code § 632(a) construes the statute rather narrowly. It’s unlikely you could prove that the landlord, by installing the camera intended to eavesdrop in this manner…maybe yes, maybe no.

California Penal Code § 647(j)(3)(A) states: “A person who uses a concealed camcorder, motion picture camera, or photographic camera of any type, to secretly videotape, film, photograph, or record by electronic means, another, identifiable person who may be in a state of full or partial undress, for the purpose of viewing the body of, or the undergarments worn by, that other person, without the consent or knowledge of that other person, in the interior of a bedroom, bathroom, changing room, fitting room, dressing room, or tanning booth, or the interior of any other area in which that other person has a reasonable expectation of privacy, with the intent to invade the privacy of that other person..”

On the other hand it would also be difficult to prove, despite the fact that there is something wrong with him, that the landlord is a peeping Tom. So calling the cops probably isn’t the answer.

Finally, Rent Ordinance § 37.10B(a)(13), does provide: “No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith: Interfere with a tenant’s right to privacy.” While it seems like you might be able to prove a case for harassment under the Rent Ordinance, without direct reference to surveillance like you have described in the Ordinance, a court would likely apply the more restrictive California law. Winning a case based upon your particular facts would be very difficult.

Here’s my bromide: If it looks like harassment, feels like harassment and smells like harassment, but it’s not explicitly defined as harassment, surveillance will not be considered to be harassment of tenants or anyone else until the lackadaisical public attitude changes toward widespread surveillance.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Should I Sign a New Lease To Guarantee Services?

Should I Sign a New Lease To Guarantee Services?

Should I Sign a New Lease To Guarantee Services?

Our building was sold to the notorious Lembi Group back in the day and they tried to evict all rent-controlled tenants under Costa Hawkins.  We hired a lawyer and went to the rent board who determined that we were indeed tenants and that Costa Hawkins didn’t apply.

As part of that case, the lawyer from the Lembi Group (CitiApartments) informed us that the previous landlord didn’t have a lease on file for us.  We were never given a copy of the lease either, as the apartment’s original tenant moved away and subsequent tenancies were handled verbally with the landlord.

It’s a 4-bedroom apartment with a fairly consistent group of roommates – in the past, when a roommate left, the new roommate was approved verbally by the landlord.  No 6.14 notices were ever presented.

When CitiApartments went under, our building was sold again.  The new owners pressured me to sign a new lease, but the Tenants’ Union said I shouldn’t sign one – they said a lease is essentially just a list of reasons for the landlord to be able to evict you.  After my experience with CitiApartments, I was suspicious of all landlords and I didn’t want to sign anything that might give them an excuse to evict us, so I never signed a new lease.

I have now been living under the new management for about 4 years with no written lease.  Several months ago our washing machine broke.  This is a washing machine that was provided by the original landlord years ago, along with the other appliances.  When I contacted the management company about it, they said they weren’t responsible for it since I didn’t have a written lease stating that they provided it.  They said they would take responsibility for it if I would sign a new lease that included the washing machine and other appliances.

They were using the situation as leverage to force me to sign a lease, so we chose to pay for the repairs ourselves. They have done other repairs without pressuring me – plumbing issues, water damage – but the washing machine is the only appliance we’ve had issues with so far.

It’s been several years now and this management group seems to be pretty good.  They’ve done some long-needed repairs on the building and appear to be a decent company.  So now I’m wondering if I should sign a lease.  I don’t want to have to pay for all repairs to appliances myself, but I don’t want to put myself in a position to be evicted.

Do I need a written lease? If so, what tricks/clauses/loopholes should I watch out for?

I’m glad you mentioned your past experience with the Lembi Group and Citiapartments. It may seem like the distant past now, but as the US Congress for the Rich continues to push for more banking deregulation, we could easily see more real estate investment financed by junk bonds, credit default swaps abetted by derivatives. And once again tenants and regular working people will be required to bail out the institutions that aided and abetted the landlords who harassed and evicted them. For a great take on the Lembis and real estate investment circa 2009,  take a look at “War of Values,” by my friend Danelle Morton.

I tend to agree with the Tenants Union on this one. Why? Because you’ll be presented with a 20+ page lease, like the San Francisco Apartment Association lease, in which several clauses come close to being void as against public policy along with others may weaken your rights under the San Francisco Rent Ordinance.

Right now, your oral agreement does not contain any terms that you could could breach, subjecting you to a potential unlawful detainer (eviction) lawsuit. The oral agreement doesn’t contain any clauses limiting subletting. Not that such a clause would present as much of a problem as it did in the old days. An oral agreement cannot be enforced to collect any late fees, which must be stated in a written agreement, but there are arguments that late fees cannot collected or when they can be collected, they can only be based upon the California legal interest rate of 10%. About the only way the landlords could evict you with cause would be for nonpayment of rent.

Generally, I only recommend that tenants sign new leases that may modestly increase the rent for single family dwellings, houses or condominiums.

“Most landlords who rent single family houses in San Francisco don’t have any incentive to require tenants to sign a longer term lease because they can increase the rent to whatever the market will bear. Remember, your tenancy is not covered by the price controls in the Rent Ordinance because you live in a house. Thank your state legislators for the Costa Hawkins Rental Housing Act which fucked over thousands of tenants in California. Because Democrat legislators don’t have the guts to repeal Costa Hawkins, like herpes, it’s a gift that keeps on giving.”

So let me get this straight. You’re thinking of signing a new lease because you want the landlord to repair the washing machine?

When you seek a decrease in services at the Rent Board to require that the landlord reduce your rent for the period of time the washing machine was unusable, you state that your oral agreement provided the use of the washing machine. This would be especially true if the washer is located in your unit. How are the new landlords going to deny that? They weren’t around at the time the agreement was made.

Is this argument foolproof? Maybe not, but it’s worth a shot and the advantages far outweigh signing a brand new lease. That is, unless the lease contained only two clauses: 1) The rent is due on the first; and 2) The washing machine is a housing service provided in the tenancy.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Is The Rule Of Seven Really A Thing?

Is The Rule Of Seven Really A Thing?

Is The Rule Of Seven Really A Thing?

Is there some type of seven-year rule that benefits landlords if they do not raise the rent for seven years and then increase it all at once?

I ask this because when I moved into my flat in 2010 the landlord said that generally he wouldn’t raise the rent unless someone stayed for seven years, at which point he would raise it by about 7%.

Then, about two weeks ago I was out with some friends who live my neighborhood and their landlord had just raised their rent by about 10% after they had been living in their flat for seven years.

Then just last night I ran into a neighbor across the street who told me that she has to move after having lived in her building for seven years because the landlord had raised the rent. We all live in buildings that are covered by rent control.

What is going on?

By 1978 the residential real estate market in San Francisco had changed forever. Gone were the days when an investor bought an apartment building based on a conservative projection of its future income and strictly evaluated the building based on its net operating income. A new breed of rapacious real estate brokers–many of them followers of Werner Erhard’s EST (a quintessential me-generation, greed-is-good psuedoreligion popular in the 70s)–realized that San Francisco real estate could be sold without regard to old, stuffy “market value” considerations, despite climbing interest rates of 11% and 12%.

A new breed of buyers agreed. Doctors and dentists began to invest in large downtown apartment buildings. They didn’t care about cash flow as long as they could write off the substantial debt service. They chanted the mantra “Location, location, location.”

Of course the big vipers, like Angelo Sangiacomo and Gunther Kaussen knew they could have their cake and eat it too. Sangiacomo is known as the Father of Rent Control because he steadfastly refused to cease doubling, tripling and even quadrupling rents for his 1,700 units. Kaussen, described by Der Spiegel as “the world’s biggest slumlord” (or one of many German articles) with 2000 units in the Tenderloin, crushed his tenants with similar practices.

Later that year, rumor grew of a shadow in the East, whispers of a nameless fear, and Rent Control now perceived. Its time had now come–in Berkeley and Davis and Cotati kingdom.

In 1979 the interest rates hit 13% and landlords’ lairs echoed with this refrain: “What news from the South, oh sighing wind, do you bring to me at eve? Where now is Santa Monica? Tenants vote and I grieve.” After Santa Monica voters passed a tough Rent Control Ordinance that included vacancy control in April, 1979, the San Francisco Board of Supervisors rushed to enact the anemic Rent Ordinance we have now.

Landlords were frightened, scared witless. Many of them lacked the ability (or the literacy) to analyze and interpret the new Rent Ordinance. (While I sympathize to a degree, one can often rely on plain meaning to get by.) Some landlords were just too cheap to hire lawyers and their realtor advisors, hampered by the maximum IQ licensing requirement, were no help either.

We all know that ignorance and fear can lead to an unhealthy reliance on superstition.

After a long night of cocaine and disco binging at Henry Africa’s, a group of disgruntled landlords, lamenting the enactment of rent control, careened over to Anton LaVey’s place, where they and assorted Satanic worshipers conducted a voodoo ritual/seance designed to purge the City of all tenants. Upon hung-over reflection the next day, the landlords, realizing that driving tenants from the City might disrupt their income streams, decided instead to use their newfound occult skills to understand the Rent Ordinance and thwart its supporters.

Thus, the Small Property Owners Occult Knowledge Society (SPOOKS) was born.

S.P.O.O.K.S. Board of Directors, 1980

S.P.O.O.K.S. Board of Directors, 1980

In its heyday in 1980-83, SPOOKS attracted a membership of between 50 and 200 landlords and their supporters. In some circles SPOOKS was more popular than EST. Their monthly meetings at Trader Vic’s were notorious because members never removed their masks and the only nourishment one could take was through a straw.  Evidently the meetings were conducted in hushed whispers punctuated by slurping and demented cackling–truly occult.

Not much is known about the SPOOKS philosophy or the Society’s impact on the landlord community at large. There aren’t many records left and, like EST, no one will admit to former membership in the organization.

But you have stumbled upon a persistent SPOOKS holdover from the past–The Rule of Seven.

We will never know whether The Rule of Seven was devised as a tenant intimidation technique or it was an occult interpretation (misunderstanding) of the method of banking rent increases. Landlords were not allowed to bank, that is save up increases to impose them all at once, until 1982.  From 1982 to 1984, the annual allowable increase that could be imposed was 7% (Hear the theremin in the background?) per year. Rent Ordinance §37.3(a)(2) now provides:

Banking. A landlord who refrains from imposing an annual rent increase or any portion thereof may accumulate said increase and impose that amount on the tenant’s subsequent rent increase anniversary dates. A landlord who, between April 1, 1982 and February 29, 1984, has banked an annual 7% rent increase (or rent increases) or any portion thereof may impose the accumulated increase on the tenant’s subsequent rent increase anniversary dates.

After 1984 a “seven-year wait and bank” strategy may have been effective because a landlord could increase the rent by 28%. But think about it, the strategy would assume a tenant would live in a unit for seven years, an assumption that is not corroborated by statistics. If the initial rent was $1,000.00 in 1984, the landlord would also lose $10,779.40 in accumulated income over seven years.

These days, the rent increases are formulated based on 60% of the annual local Consumer Price Index. Let’s say you moved into your unit in 2007 and the landlord never increased the rent. Now, he could only bank an increase total of 9.6%. Again, the landlord loses the accumulated income along the way.

Therefore, waiting seven years to increase the rent is a strategy of “Cut your nose off to spite your face.” It’s a stupid, vindictive and financially unsound practice that could only be justified by ignorant superstition, evidence that some landlords have SPOOKS in their brains.

Try to identify your landlord in the photos. Then read more about the history of San Francisco rent control in 1980-1991: Rent Control Wars, by Randy Shaw, and from the landlords’ perspective, The Birth of Rent Control in San Francisco, by Jim Forbes & Matthew C. Sheridan.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Can My Landlord Make Me Remove My Satellite Dish?

Can My Landlord Make Me Remove My Satellite Dish?

Can My Landlord Make Me Remove My Satellite Dish?

Can a landlord, out of the blue, demand the removal of a direct tv satellite dish?

Facts about the rental:
1. Single Family Unit. Tenants have rented downstairs since 1996.
2. Landlord filed an OMI in 2015 on the upstairs tenant but lives in Canada.
3. Direct TV was installed in the back deck in January 2010. Landlord made “improvements” to the back deck prior to renting upstairs to the daughter of downstairs tenant in 2015.
4. Nothing in the lease prohibiting installation of dish.
5. Landlord verbally abusive over the phone to tenants and direct tv representatives when making repairs.
6. Second wife moved in upstairs before Christmas of 2017.
7. Landlord did not return security deposit of upstairs tenant claiming repairs needed after moving in for a short period of time. Gone back to Canada before Christmas of 2015.
8. All utilities are under landlord’s name except for direct tv. Landlord doesn’t have cable or landline.

I’m going to try to unpack this as best as I can, but this question is illustrative of many inquiries we receive by email—not enough information about your tenancy and, interesting, but irrelevant to your question, information about the former tenants.

If you’re asking me if your landlord’s a shitbag, I’d say yes, given the facts as you have presented them. He thinks he’s the end-all, be-all lord of the manner. It also looks like he wrongfully evicted the tenants upstairs and, adding insult to injury, refused to refund their security deposit. You should contact the former tenants soon to let them know that the landlord never moved in because there may be a statute of limitations problem to sue for wrongful eviction, depending upon the notice and what they knew when they moved out.

You call the the unit a “single family unit” but because you mention an upstairs and a downstairs, I’ll assume that it’s a two-unit building. I’m also going to assume that you live in San Francisco and that the building was built before 1979, and therefore rent-controlled.

Finally, the fact that the landlord pays all of the utilities may indicate that your unit is illegal, which could be relevant to your situation if the landlord is trying to force you out to avoid complying with planning code regulations that may require him to legalize your unit. I owe my readers an in-depth article about the new requirements, so I won’t open that can of worms here.

Can your landlord make you remove the satellite dish?

You state that the lease does not prohibit the installation of the disk, but that may not end the inquiry. Many form leases contain a prohibition against alterations without the landlord’s written consent. Here’s a more or less standard clause:

MAINTENANCE and ALTERATIONS: RESIDENT shall not paint, wallpaper, alter or redecorate, change or install locks, install external antennas, satellite dishes or other equipment, screws, fastening devices, excessively large nails, or adhesive materials, place signs, displays, or other exhibits, on or in any portion of the premises without the written consent of OWNER, except as may be permitted by law. RESIDENT may not install fixtures or devices without prior, written consent from OWNER, and subject to OWNER’S reasonable installation and maintenance guidelines to be provided upon request for consent.

If you never sought or received written permission to install the satellite dish, the landlord can argue that he has the right to require that you get rid of it. That’s why it’s important for tenants to read their leases carefully. If your lease requires the landlord’s written permission to sublease or make an alteration, you must get written permission from the landlord. You can’t rely on his verbal acceptance or his implied knowledge, because he’ll lie about it later. As I’ve said before: More lies are told in court, under oath, than any other place except church.

If you don’t have a provision in your lease governing alterations, and the dish has been installed professionally, you may be okay. At lease the landlord cannot evict for for breaching your lease. You may be able to make an agreement with the landlord to to move the satellite dish form the deck.

Did the landlord waive his right to make you remove the satellite dish?

Waiver is legally defined as knowingly relinquishing or abandoning a known right, claim, or privilege. Without an agreement it’s very difficult to prove that the landlord intended to allow you to install the satellite dish.

Rent Ordinance § 37.2(g) provides the definition of housing services:

“Services provided by the landlord connected with the use or occupancy of a rental unit including, but not limited to: quiet enjoyment of the premises, without harassment by the landlord as provided in Section 37.10B; repairs; replacement; maintenance; painting; light; heat; water; elevator service; laundry facilities and privileges; janitor service; refuse removal; furnishings; telephone; parking; rights permitted the tenant by agreement…and any other benefits, privileges or facilities.”

Usually the landlord provides services to the inception of the lease and if they are included in the lease or if provided by a later agreement agreement, they become included in the lease. Once again, unless you can prove that he agreed (intended) to let you install the satellite dish, either by actual written agreement or perhaps a string of emails or texts, or witnesses to his agreement, it will be hard to prove that the landlord intentionally waived his right to make you take it down.

Is the landlord estopped by his conduct from making you remove the satellite dish?

Estoppel is a legal concept that prevents a party from asserting a a fact or claim inconsistent with a position that the party previously took either by conduct or words, especially where that representation has been relied upon or acted upon by others.

You may have a defense to an unlawful detainer (eviction) action because the satellite dish has been installed on the deck for eight years and the landlord has known about it for at least three years and didn’t say anything.

My advice.

Even if you voluntarily remove the satellite dish, given the facts you presented, I don’t think you would have much of a case for a reduction of rent at the Rent Board based upon a substantial decrease in housing services because the landlord did not provide the service in the first place. “Landlords may defend a decrease in services petition by proving that the item was not a housing service provided, promised or reasonably expected at the commencement of the tenancy.”

If the landlord threatens to evict you for breach of the lease (Rent Ordinance § 37.9(2)), or nuisance (Rent Ordinance § 37.9(3), I would advise you to remove the satellite dish. Why? Because you don’t want to be defendant in an unlawful detainer (eviction) lawsuit, even if the landlord’s claims are bullshit.

Remember your rights don’t mean squat unless you have the means to assert them. More and more in this country rights are for the rich.

Evictions are very expensive to defend and landlords know this. Landlords bet that they can outspend a tenant in legal fees and they’re usually right, so it doesn’t matter what lies they tell or what asinine legal theories they assert. It would be worth it to your landlord to spend $100,000.00 to evict you. If you have lived in rent-controlled apartment since 1996 he will likely increase the value of his building by a million bucks!

That’s why all San Francisco tenants should not only vote for but work hard to pass Measure F that would provide for legal representation for all San Francisco tenants who are faced with legal proceedings to evict them from their residence.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Can Tenants Get in Trouble for Breaking a Lease?

Can Tenants Get in Trouble for Breaking a Lease?

Can Tenants Get in Trouble for Breaking a Lease?

I’m finding myself in the position of looking for an apt for the first time in a long time. I thought I ought to check some things out with you.

What’s the deal with lease terms? If you sign a 12-month lease and you end up breaking it, can the LL really enforce? Have you heard of tenants actually getting in trouble for a breaking a lease? Also, is there any actual advantage for a tenant in signing a long term, fixed lease under rent control? They can’t legally evict or increase your rent whether you’ve signed a lease or not, no?

Thanks for your help and any other insight or pitfalls I should look out for.

What’s the deal with with lease terms? As an attorney, I will tell you that the terms of the lease comprise the contract you have with the landlord to live in or use a given apartment, house or business space. They define your duties and obligations to the landlord, but in residential situations they rarely set out the landlord’s duties and obligations to you. That’s why the courts have developed various doctrines like the implied warranty of habitability and the implied covenant of quiet enjoyment.

In most cases, especially in cities, the competition for apartments is so keen that most tenants, when they find a suitable deal, will sign a lease based solely upon the amenities of the unit and the price of the rent they will paying. If a tenant is uncomfortable with other terms buried in a a lease, he or she will usually acquiesce to them because the amenities are acceptable and the price is right—like clicking the button agreeing to terms when one buys something online or accepting new Facebook terms. In other words, as in the law, leases heavily favor the landlord in the landlord/tenant relationship, based upon medieval practice from over 1000 years ago.

Do tenants actually get in trouble for breaking a lease?

If you sign a year lease and you want to, or have to move early, you will be breaking the lease, legally speaking, breaching the lease, because you promised to stay for a year and you want to break that promise.

As with any contract, the breaching party may be liable for damages to the “injured” party.  To calculate the damages for breach the courts will apply a formula: A tenant will be liable for every month left in the lease that the landlord cannot rent the unit. Most landlords stop right there in the analysis. But under Civil Code § 1951.2(c)(2) the lessor (landlord) must “proves that in reletting the property he acted reasonably and in a good-faith effort to mitigate the damages.”  To mitigate (lessen) his damages, a landlord must diligently attempt to re-rent the unit as quickly as possible after the tenant vacates at a rent that is as close to the same amount for which the tenant contracted.

Yes, tenants can get into legal trouble for breaking a lease, if the landlord sues for damages. If you signed a year lease and you want to move after six months, the landlord has an expectation that he would receive the same rent as you pay for the next six months. These are called “expectation damages.” He must mitigate those damages by renting the unit for the same amount as you were paying, not more. If the landlord can only rent the place for $100.00 less than you paid, he would incur $600.00 in expectation damages and you would be liable for those damages. The landlord might also incur costs to re-rent the unit, like advertising, or reasonable payment to a rental agent or expenses incurred in re-keying a unit, etc. You may be liable for those costs, if the landlord can prove he spent the dough.

Often a landlord, to his financial detriment, will attempt to re-rent a unit for a much higher price or refuse to attempt to re-rent a unit at all, basically refusing to mitigate his damages. Or the landlord will attempt to make the tenant responsible for re-renting the unit, demanding that the tenant continue to pay rent until he or she finds an acceptable new tenant.

If you are simply breaking the lease because you want to move, you should simply give the landlord a 30-day notice to terminate the tenancy. If you want to obtain evidence that the landlord failed to mitigate his damages, you may want to advertise the unit on craigslist or another popular site for rentals and refer the applicants to the landlord to “help him out.”

You should not continue to reside in the unit after the thirty days have expired, as many landlords will demand, simply because the landlord refuses to get off of his ass to attempt to re-rent the place. Landlords may think they own you, but last time I looked, the 13th Amendment to the constitution was still (if only barely) in effect.

What about lease termination fees in a lease?

If the lease contains an early termination fee—a fee (often amounting to two months rent or more) to reimburse the landlord for breach damages—you can attempt to negotiate the fee down, pointing out that it will not take the landlord two months (or whatever the fee amount equals in rental weeks/months) to re-rent the unit. Also remind the landlord that that if you pay the fee and he re-rents immediately, he could be unjustly enriched. You may also want to include the fact that your security deposit should cover the damages.

If you don’t want the added hassle of a landlord’s potential lawsuit to collect the the fee, sometimes it’s just better to pay it and move on—more unfair, unearned income for landlords.

By the way, if you move early, the landlord will never, ever refund your security deposit, despite the fact that you left the place in pristine condition, which you should always do, if you’re gearing for a fight later on.

If you’re adventurous and you think you may have to sue the landlord for the security deposit anyway, here’s a theory that early termination fees may be illegal. Don’t use this unless you’ve consulted with an attorney!

Early termination fees are liquidated damages, damages that the landlord in this case, suffers because you terminated the lease before it expired. Liquidated damages are legally defined as “difficult to quantify.” The landlord and tenant can agree to an amount that will compensate the landlord for his damages ahead of time. When the fee is paid, the damages are liquidated (concluded, finished, paid.)

Civil Code §1671 deals with with the validity of liquidates damages provision in a contract. Section 1671(c)(2) provides:

The validity of a liquidated damages provision shall be determined under subdivision (d) and not under subdivision (b) where the liquidated damages are sought to be recovered from […] [a] party to a lease of real property for use as a dwelling by the party or those dependent upon the party for support.

Section 1671(d):

In the cases described in subdivision (c), a provision in a contract liquidating damages for the breach of the contract is void except that the parties to such a contract may agree therein upon an amount which shall be presumed to be the amount of damage sustained by a breach thereof, when, from the nature of the case, it would be impracticable or extremely difficult to fix the actual damage.

Check your lease, if there is no provision in which you agree that “the amount which shall be presumed to be the amount of damage sustained by a breach thereof” or similar language, then the early termination fee clause could be void.

Many leases, however, have such language. However, damages for breach can be easily determined using the calculation above. If the landlord mitigates his damages by, for example, renting the unit for $100.00 less, there’s no way to justify a two month early termination fee.

As I said before, don’t try this without running it by a lawyer with your specific circumstances!

Is there any actual advantage for a tenant in signing a long term, fixed lease under rent control?

Yes, there may be an advantage to signing a long-term lease, a lease for more than a year, even in a rent-controlled jurisdiction. A term lease, for whatever the term, protects you from rent increases and other just cause evictions like the Ellis Act. Remember, all “no-fault” evictions in either state law or rent-controlled jurisdictions like San Francisco or Santa Monica or Los Angeles apply to month-to-month tenancies. Why, because a landlord will be in breach of a term lease if he attempts to change the terms, increase the rent or evict you for something other that your breach of the lease—no owner move-in, no Ellis Act, without the landlord risking heavy liability.

For further reading on this take a look at  my article, “My Neighborhood’s Too Dangerous, Can I Break My Lease?” and “Breaking Your Lease,” by Ken Carlson.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

How Can I Fight an OMI Eviction?

How Can I Fight an OMI Eviction?

How Can I Fight an OMI Eviction?

First the essentials:

* My building was built before 1979
* Six units in my S.F. building, three are rent controlled including mine, the last 2-bedroom
* I am 52 and have an asthma disability. LL has agreed to pay the $4188 disability payout
* I’ve lived here almost 14 years, and the rent is $1130
* The building sold last May, and the new LL has not even given me a new lease! Clearly a predatory LL, as he could have moved into either of the two 2-bedroom units when he bought the building. He is gunning for my unit.

Apart from making the claim I have “protected status” with my asthma condition (including a letter from a leading asthma dr. in S.F.), and that he appears to be a predatory LandLord, is there any other way to fight an owner move-in?

I’m glad to be back!  Thanks for providing most of the information I need to dissect this.

I see you have a rent controlled two-bedroom unit in San Francisco that rents for $1,130 per month. The predatory landlord (they’re all predatory BTW) wants to evict you, even if he has to live in your apartment for three years, because he can make a shitload more money when he eventually sells the building.

According to several online real estate sites, the average rent for a two-bedroom apartment in San Francisco is approximately $4,500.00 per month, more or less, depending upon location. The rent differential when the landlord sells the building will be approximately $3,370 per month in today’s dollars or $40,440.00 per year. Using a 4% capitalization rate (a standard method to determine the value of a residential income building, explained in detail here) getting rid of you will increase the value of the building by approximately a million bucks, barring a 9.0 earthquake or nuclear blast.

I’m willing to bet that you pay the least amount of rent in the building for a two-bedroom. No wonder the landlord is gunning for you, given the profit he will pocket. Even if you live on the bottom floor and top floor has an unobstructed view of the Golden Gate Bridge, the tenant upstairs will be safe from an OMI eviction if he or she pays more rent. In my opinion, most of these new landlords, these MBA-bean-counting-investors don’t want to “live” here; they want to get rich here.

Making a disability claim does not necessarily confer complete protection from an OMI.

Read Rent Ordinance § 37.9(i)(1)(i) states in part:

“A disabled tenant is defined for purposes of this Section 37.9(i)(1)(B) as a person who is disabled or blind within the meaning of the federal Supplemental Security Income/California State Supplemental Program (SSI/SSP), and who is determined by SSI/SSP to qualify for that program or who satisfies such requirements through any other method of determination as approved by the Rent Board.”

While asthma can be a disability within the meaning of the California Government Code or the Americans with Disabilities Act (ADA), unless you are receiving SSI or SSDI or qualify for either program, you will not be absolutely immune from an OMI eviction.

You also mention that the landlord is willing to recognize your disability and pay you the mandatory relocation payment for a disability in an (OMI) eviction—for 2017! You don’t mention if the landlord has already served you a 60-day notice to evict you for OMI, but if he served it before March 1, 2018, the disability relocation amount would be correct.

Which begs the question, did the landlord serve you with the correct form of an OMI 60-day notice?

Last year the San Francisco Board of Supervisors made significant changes to the requirements for an OMI eviction and also increased protections for tenants who receive an OMI eviction notice. (Rent Ordinance § 37.9(a)(8)(v).) The Rent Board provided the specific details for the notice requirements in Rent Board Rules & Regulations § 12.14(b):

“(b)       Information to Accompany Notice to Vacate. In addition to general eviction notice requirements, a landlord who endeavors to recover possession under Ordinance Section 37.9(a)(8) shall provide the tenant with the following documents and information in writing on or before service of the notice to vacate and file a copy of same with the Rent Board within 10 days after service of the notice to vacate on the tenant, together with a copy of the notice to vacate and proof of service upon the tenant:

(1)       the identity and percentage of ownership of all persons holding a full or partial percentage ownership in the property;

(2)       the name(s) of the landlord endeavoring to recover possession and, if applicable, the name(s) and relationship of the relative(s) for whom possession is being sought and a description of the current residence of the person(s) for whom possession is being sought;

(3)       the dates the current percentages of ownership were recorded;

(4)       a description of all residential properties owned, in whole or in part, by the landlord and, if applicable, a description of all residential properties owned, in whole or in part, by the landlord’s relative for whom possession is being sought;

(5)       the current rent for the unit and a statement that if the unit is offered for rent during the five-year period following service of the notice to vacate under Section 37.9(a)(8),  the tenant has the right to re-rent the unit at the same rent, as adjusted by Ordinance Section 37.9B(a);

(6)       the contents of Ordinance Section 37.9B, by providing a copy of same;

(7)       the right the tenant(s) may have to relocation costs under Ordinance Section 37.9C, the amount of those relocation costs, and a copy of Section 37.9C;

(8)       a declaration executed by the landlord under penalty of perjury stating:

(i) the reason why the landlord or relative is moving from his/her current residence to the unit for which possession is being sought; (ii) that the landlord seeks to recover possession of the unit in good faith, without ulterior reasons and with honest intent, for use or occupancy as the principal residence of the landlord or the landlord’s relative (identified by name and relation to the landlord), for a period of at least 36 continuous months, as set forth in Ordinance Sections 37.9(a)(8)(i) and (ii); (iii) whether the landlord served a notice to vacate pursuant to Ordinance Section 37.9(a)(8) for a different unit; and, (iv) whether the landlord has recovered possession of other rental units in the City and County of San Francisco for any reason under Ordinance Section 37.9(a) other than nonpayment of rent in which the tenant displaced from such rental unit had resided for at least 36 consecutive months;

(9)       a warning that the tenant must submit a statement to the landlord within 30 days of service of the notice to vacate, with supporting evidence, if the tenant claims to be a member of a protected class under Ordinance Sections 37.9(i) or (j), and that failure to do so shall be deemed an admission that the tenant is not protected by Sections 37.9(i) or (j);

(10)     a form prepared by the Rent Board stating that a tenant’s failure to timely act in response to a notice to vacate may result in a lawsuit by the landlord to evict the tenant, that advice regarding the notice to vacate is available from the Rent Board, and that the tenant may be eligible for affordable housing programs through the Mayor’s Office of Housing and Community Development; and

(11)     a blank change of address form prepared by the Rent Board that the tenant can use to keep the Rent Board apprised of any future change of address.

I am providing the relevant part of the statute here, not to enliven my writing, but to demonstrate some of the comprehensive changes to the OMI statute which became effective this year.

If you have been served an OMI notice to vacate and it does not include each and every one of these items, the landlord cannot evict you based on the notice.

How Can You Fight an OMI Eviction?

When you ask how to fight an OMI, I assume that you want to stay in the apartment and fight (defend) the eviction. Even with the new notice requirements, defending an eviction is still an uphill process.

You (your lawyer) must be able convince at least four members of a jury that the landlord does not intend to live in the unit for three years. Disproving intent is extremely difficult. How do you disprove the landlord’s internal rationale?

When I speak to tenants about this, I tell them that they need a smoking gun. In other words, you need evidence that will convince a reasonable person that the landlord is flat-out lying about his intent to move in.

For example, if you can show that the landlord currently lives in a 35-room mansion in Beverley Hills and works in the film industry, it’s unlikely that he wants to live in your two-bedroom apartment and make it his primary place of residence.

I must warn you that you need to provide evidence almost this convincing to successfully defend an unlawful detainer (eviction)  lawsuit for OMI.

Gather as much information about the landlord as you can.The Supes created the new notice requirements to give you a head start. Evaluate and verify the information provided in the notice. Search for more information on the landlord and his relatives as you can. If landlord’s  18-year-old is moving in and the landlord doesn’t live there, make sure she owns 25% of the building—not that likely in your six-unit building.

Bring all of your documentation to the San Francisco Tenants Union and evaluate your evidence with a tenant counselor.

Your case may have some specific details that may make it worth your while to fight. But generally, when I speak to tenants, I often find that defending an OMI eviction will be an expensive, losing proposition. Think about it, a sophisticated landlord will cover all of his tracks if he has to provide the extensive information now required in an OMI notice to vacate.

So, if you have been served a valid OMI notice, you should also be looking for a new place to live.

Readers: You can find all of the new regulations pertaining to OMI evictions on the San Francisco Rent Board website. Specifically read Rent Ordinance § 37.9(a)(8), Rent Ordinance § 37.9B, Rent Board Rules & Regulations § 12.14 and the information sheets (actually written in English) provided on the site.

I did not address the new 90-day and annual landlord reporting requirements, because they will be more instructive and useful for a tenant who moves out and later wants to sue for wrongful eviction—a topic for another article.

Call the Tenant Lawyers now for a free consultation.
(415) 552-9060

Tenant Troubles Is Back!

Tenant Troubles Is Back!

Tenant Troubles Is Back!

What happened to Tenant Troubles?

Where has Dave Crow been? Probably not a burning question, but I’d like to explain anyway.

I haven’t been focused on my extracurricular writing due to work. You know…the excuse we all use to avoid living our lives—the “excuse” all of us tenants have when we have to pay 30%, 40%, 50% or more of our net income for rent. My job involves a lot of writing anyway. If you think you want to be a lawyer and you don’t want to write, you’re considering the wrong profession. It didn’t make for good TV to portray Perry Mason, Jack McCoy or (insert your your favorite TV lawyer here) spending hours of time writing legal briefs.

My job involves too much writing that, to be honest, pisses me off. For example, last year Solvejg and I spent weeks responding to an appellate case, chipping away at the reasons why Costa Hawkins didn’t preempt the trial court’s ruling in favor of our clients. In their decision, the appellate court essentially agreed with us, but ruled against our clients anyway. That Costa Hawkins should be repealed is simply a no-brainer.

But look where that got us, despite the efforts of organizations like Tenants Together, the San Francisco Tenants Union, the Housing Rights Committee and others. Up close and personal, tenant troubles break my heart. When meeting with clients or prospective clients, the palpable sorrow, the tears and the dismay at being uprooted from community, leave me little to say. “Where will I go?” is an unanswerable question that cannot be adequately assuaged by “you do have some rights.” or “you can sue the landlord later.”

So I stopped writing for awhile. I often incorporated musical references in many of my Tenant Troubles columns in the past—from Elvis to Dusty Springfield to the Butthole Surfers. When my six-year old niece wanted to take guitar lessons several years ago, she and I went together. She lost interest (she plays the sax now) but I kept going. I began to substitute the time I spent writing Tenant Troubles to practice the guitar.

“The effect of rock and roll on young people, is to turn them into devil worshippers; to stimulate self-expression through sex; to provoke lawlessness; impair nervous stability and destroy the sanctity of marriage. It is an evil influence on the youth of our country.” – Minister Albert Carter, 1956.

I’ve always loved electric rock ‘n roll and punk—synapse frying, ear splitting, raging…yes…devil music. So I bought a used Stratocaster and a small amp. Then a vintage 1967 Galanti Grand Prix. Then a larger amp. Yeah, it’s a mania, with which some of you may be familiar. As I revisited the music I love, to learn to play it, I understood the common thread again—not simply generational rage, but a fleeting, clear, unadulterated vision that only young adults can possess.

“You and me we keep walkin’ around and we see All the bullshit around us You try and keep your mind on what’s going down Can’t help but see the rhinoceros around us And you wonder what you can be And you do what you can To get balled and high…” —Jefferson Airplane, The House at Pooneil Corners, Crown of Creation, 1968

When I first heard Crown of Creation, Jefferson Airplane’s post apocalyptic masterpiece, I was too young at the time, to truly understand some of the lyrical themes, but I loved the feedback—that visceral howl—San Francisco beckoning. I devoured San Francisco psychedelic rock, Quicksilver, Big Brother, The Dead, Santana, and Blue Cheer like each was a last meal. Certainly I will never play as well or as weird as Jorma Kaukonen of the Airplane, but I have gained new respect for musicians of any stripe who the courage and the determination to play well, no matter how weird. Better yet, that old useless idealism creeps back into my head like DNA unravelling. I catch myself asking questions like, “What if they gave a war and nobody came?”

“Just when you think tastelessness has reached its nadir, along comes a punk rock group called ‘The Dead Kennedys’, which will play at Mabuhay Gardens on Nov. 22, the 15th anniversary of John F. Kennedy’s assassination.” —Herb Caen, November, 1978

I had arrived in the Bay Area about six weeks earlier, staying with my friend, Tom, in Alameda. November 1978 was shaping up to be a lousy month for the Bay Area. The tragedy in Jonestown had been reported on November 18, but we were determined to go to see this weird, irreverently named group. And that night charted a new course in my musical journey. There it was again, the cutting, guitar screaming, fuck-all-you-all, satire—the roar from those too young to know they may have something to lose.

It’s the American in me that makes me watch TV see on the news, listen what the man said. He said “Ask not what you can do for your country what’s your country been doing to you Ask not what you can do for your country what’s your country been doing to your mind?”
—The Avengers, The American in Me, 1978

In 1979 I had the good sense to vote for Jello Biafra for Mayor of San Francisco largely because one of his campaign planks required businessmen to wear clown suits within the city limits. San Francisco was a vast, post modern circus that needed its clowns. SOMA was an industrial wasteland where one could take in one of Mark Pauline’s Dangerous and Disturbing Mechanical Presentations. One could witness mummified cats, dogs, and raccoons lasered on the Mummy-Go-Round. In that era my list of bands included the DKsJoy Division, Husker Du, Flipper, The Mutants, X, Romeo Void, Suicidal Tendencies, and so many, many more. That music is a little easier for me to play, not that I’m any good. But what about the anarchy? The raw defiance? Is it as easy to embrace now? What if they gave a war and nobody came?

At its best New Wave/punk represents a fundamental and age-old Utopian dream: that if you give people the license to be as outrageous as they want in absolutely any fashion they can dream up, they’ll be creative about it, and do something good besides. —Lester Bangs, Psychotic Reactions and Carburetor Dung, Edited by Greil Marcus, 1987

As you know, San Francisco has revoked that license. Almost all of those people are gone–evicted one way or another. For me, evoking my youthful rebellion and the music that informed it, helps me to refocus and stay pissed off. I know I can’t bring back the past, but I can sure as hell try to head off a inhumane, inhuman sanitized future. I am pleased and proud to bring Tenant Troubles to 48 Hills. I’ve known Tim Redmond for over 30 years. We met when he was a reporter and I sold classified ads at the Bay Guardian. Tim has steadfastly supported our San Francisco community for all that time. In this new iteration of Tenant Troubles I will still give you the law, straight up. I’ll tell you how the law can help you and how the law can hurt you—no punches pulled. When the law is not on your side, and that is often, I’ll also urge you to remember your old music, to let your DNA unravel, to undadulterate, to get pissed off and get political. Try this. Listen to The Clash’s cover of “I Fought the Law.” Then reimagine the lyrics:

Payin’ my rent, hurtin’ no one. I fought the law and the law won. Fightin’ the Ellis Act is no fun. I fought the law and the law won… Etc.


Call the Tenant Lawyers now for a free consultation.
(415) 552-9060