Tenants, Don’t Hire a Landlord Lawyer!

Tenants, Don’t Hire a Landlord Lawyer!

Tenants, Don’t Hire a Landlord Lawyer!

Let’s say you need a lawyer to represent you in a dispute with your landlord. Maybe you have a referral from a friend or you’re calling around to find an attorney. When you call, the first question you should ask your prospective lawyer is:  Do you represent landlords against tenants? If the answer is yes, that should be the last thing you ask. Why? Because you’re speaking to a landlord lawyer.

There are many lawyers out there who represent both tenants and landlords. You need a tenant lawyer! Think about it. That aggressive bulldog you hired to defend your rights could just as easily be representing your landlord. Imagine how he would be treating you if you hadn’t hired him first. Would you hire a lawyer to represent you who says this? “Even if the master tenant has some form of statutory right to move in a replacement roommate or family member, you should not approve such persons to be roommates or subtenants. If the master tenant has a contractual right to request approval, you should still deny it.” Would you hire a lawyer who advocates this?

The last time I checked, both of these attorneys and/or their firms represent landlords and tenants. “So what?” you say. “Why the hell do I care if my attorney represents landlords as long as she gets the job done?” My answer:  “If you don’t give a rat’s ass about other tenants or your future tenant rights, you shouldn’t care that your lawyer represents landlords.”

Here are a few reasons why you should care:

Tenant lawyers are committed to expanding tenants rights.

I know many San Francisco tenant lawyers. Many of them make substantial donations to the San Francisco Tenants Union, Tenants Together, the Housing Rights CommitteeJust Cause and other Bay Area tenants rights organizations. They are volunteer counselors at those organizations. But most of all, they believe in tenants rights and commit their resources to defending tenants and rent control every day.

Tenant lawyers share their experiences and discuss tenant law with one another.

I am a member of a group of tenant lawyers in San Francisco. We promise to one another that we will only represent tenants in residential cases. We will not represent master tenants seeking to evict their subtenants. We have a listserv in which we discuss the latest law and best practices to fight for our clients. We will not allow attorneys who represent both landlords and tenants to join this group. Why? Because we don’t want our strategies to be available to landlords. Any lawyer will tell you that one of the most important parts of her job is to be able to anticipate the other side’s strategy. It’s a misnomer to think that an attorney has to represent both sides to be able to effectively represent her client. As tenant lawyers we have seen every trick in the book. We have a network to discuss landlord strategies and methods to counter them.

Tenant lawyers are more empathetic. Many of them are tenants themselves.

The simple point of this is: Why would you hire landlord lawyer who is, at best, ambivalent about your rights? Why would you spend your money on a landlord lawyer who probably won’t recycle it back into the tenant community? If you’re a tenant and you need a lawyer, join the Tenants Union, get their list and hire a tenant lawyer!

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

SF Tenants: Jack Tarred and Feathered

SF Tenants: Jack Tarred and Feathered

SF Tenants: Jack Tarred and Feathered

“The Jack Tar is a symbol of things to come, and presumably the day is not far distant when the storied hills of Baghdad-by-the-Bay will be covered with lively replicas of its Southlandish bravado.”   –Herb Caen, The Crack in the Bay Window, The San Francisco Chronicle, April 12, 1960.

Herb Caen famously criticized the Jack Tar Hotel once located at Geary and Van Ness. Why? Not only because it was butt-ugly, but that it did not represent the character of the City that he had grown to love. “In San Francisco one has to look back to find the key, at least architecturally. The question before the house is simply this: is San Francisco to become a sort of unlikely parking lot for concrete blockhouses and balconied bath houses, traversed by the freeways they in some ways resemble, or will some attempt be made to preserve the character of the last “different” city in the country? Or, to put it another way: which sings the song of San Francisco more strongly — the cable car, literally rooted to the heart of the city, or the Jack Tar Hotel?”

Herb Caen sang the song of the City, his Baghdad-by-the-Bay, when beatnik writers like Kerouac and Ginsberg could live here and write without two nickels rubbing together in their pockets; when Richard Diebenkorn was a student at the California School of Fine Arts beginning to develop his aeronautic landscapes; when Jefferson Airplane and the Grateful Dead played free concerts for hippies who could still find a way to pay the rent; and even when a newcomer like me could scrape up enough dough to pay rent and hang out at the Mab and vote for Jello Biafra for mayor in 1979.

You didn’t have to be rich and famous to live here. You certainly didn’t have to be rich and famous to have fun here…But I digress.

In 1960, Mr. Caen reminded us that some of San Francisco’s magic lies in its “continuity with a past that was as colorful and memorable as that of any city 10 times its age.” Herb Caen didn’t write as much about life “South of the Slot”–the vast, now mostly residential, neighborhoods south of Market, like the Mission. I live in the Mission and we sing the song of the City in our art and our work as loud and as proud as they do in North Beach.

And now it is our turn to become a “parking lot for concrete blockhouses.” Southlandlish developers make no attempt to preserve the character of our part of this “different” city. To make matters worse these monstrosities springing up in the Mission masquerade as “housing.” Because they are new buildings and built as condominiums, the units are not covered by the Rent Ordinance and never will be (unless the hideous Costa-Hawkins Act is repealed), so they can be rented at “market rate.” (Of course the only way to justify calling the rental business a “market” is to assume that land is a commodity that can be manufactured, bought and sold. But as all tenants know, land isn’t Doritos–you can’t eat all you want because they can’t make more.) Yet manufacturing housing seems to be the justification for building these ugly, unsustainable, expensive monuments to greed. Of course, as all rent-controlled tenants understand, one has to be rich to live in one of these shit boxes. I walked around the neighborhood a couple of days ago. I found three buildings within a few blocks of my apartment that prove Herb Caen’s prescience.

Not built for tenants

1515 15th Street at South Van Ness

This one may have well as been designed by former San Quentin inmates to serve as a visual aid to remind them that they never want to live in prison again. The only element missing is a machine gun turret. Hey, there’s a unit in the building coming up for rent! It’s only $5,200.00 per month with a $13,800.00 move-in cost!

Not built for tenants

2208 Mission Street at 18th Street

This building seems to embrace the suedo-Queen Anne Victorian style–that’s right, suedo, as in a 1972 BarcaLounger complete with grandpa’s little dribbles–with rounded bay windows. Perhaps the designers were paying homage to Herb Caen when they designed the bays: “Irreplaceable (if sometimes horrible) Victorian examples of an era that gave birth to the very image of San Francisco are disappearing daily; one by one, the bay windows are being smashed — the windows that formed the shining, unique face of a city.” I watched this building being constructed in fits and starts over about a two-year period. The construction stopped for quite some time leaving framing exposed to the weather, molding away. They did remove the contaminated material when they restarted the construction, but they still painted the building a mildewy, baby shit beige.

Not built for tenants

2558 Mission between 21st and 22nd Streets

I like to call this one No Giant Value. Shiny, yes, but what’s with the post-liquefaction style accentuated by clown colors? A 725 square foot one-bedroom purportedly sold in this building for $1,087,000.00. To be fair, none of these buildings replaced any affordable rental housing. The problem is that they did not create any affordable rental housing either.

Tenants, need any more reasons to vote Yes on Proposition I? I don’t.

$250,000 per year for each lost tenant household Here’s where the feathering comes in. If it isn’t enough to flaunt the lack of affordable, rent-controlled units, by building oversized, ugly, million dollar-a-condo projects, landlords have stepped up their campaigns to oust tenants from rent-controlled units so that they rent them as hotels with Airbnb and other similar agents.

In the last year, I’ve seen a huge uptick in calls from tenants complaining about landlord tactics to legally or illegally oust them from their in-law units, as well as any unit located in a two-unit building. The San Francisco League of Pissed of Voters tweeted this message to Airbnb in response to a series of loathsome ads it placed around town to admonish the City to use Airbnb taxes to create bike lanes, feed expired parking meters and to keep the library open later. Indeed the asterisk refers to a report by the San Francisco Controller, which states in part on page 8:

•  If short-term renting results in the withdrawal of a housing unit from the residential market, then the reduced supply would lead to higher housing costs.

•  The citywide economic harms associated with higher housing costs are fairly severe. According to the REMI model (Regional Economic Models, Inc.), removing a single housing unit from the market would have a total economic impact on the city’s economy of approximately -$250,000 to -$300,000 per year. This exceeds the annual total economic benefit from visitor spending, host income, and hotel tax, given prevailing short-term rental rates.

• On a net basis, then, a housing unit withdrawn from the market to be used for short-term rentals produces a negative economic impact on the city, even if the unit generates host income, visitor spending, and hotel tax every day of the year. Unless the Airbnb visitors are being housed in the Jack Tars springing up all over town, they must necessarily stay in residential units removed from the market, period.

The League of Pissed Off Voters conservatively used an estimate of 1,000 units removed from the market, when the number of units rented in this manner could be as high as 10,000. Certainly the number of units removed in San Francisco could reach that number if the current, unenforceable law remains in place. In other words short-term landlord greed could cost the City $2.5 billion per year, not to mention the cost in community and culture rooted to the heart of the City. I get a kick out the fear tactics used by Airbnb’s TV and print advertising in opposition to Proposition F, particularly the one about neighbors spying upon one another. Any tenant who has experienced this, and many have, know that landlords spy on them all the time when they install “security” cameras in commons areas of a building, pointed right at a suspected tenant’s door. If you haven’t experienced this directly ask around, you’ll find someone who has. With respect to reporting illegal Airbnb rentals, just as I have an obligation to report a public nuisance to the appropriate agency, I have an obligation to report this nuisance that so severely will affect the City. Another easy issue to disregard is the enhanced reporting /licensing requirements in Proposition F. Evidently, only about 6% of hosts have currently registered their units and there’s little enforcement to make them do so.

You don’t have to read the law to understand how to vote on these issues.

That may sound strange coming from a lawyer. I actually did read the law, but I didn’t have to, because I’ve learned a few things since I moved to the City in 1979. I’m sick and tired of rich assholes hijacking representative democracy.

One way they do that is to flood the media with fear campaigns about a given proposition. They tell you you’ll lose your job, in this case you won’t, but you’ll have to commute from Modesto to do it. They tell you that your neighbors will be spying on you. Certainly in the “community” that Airbnb envisions–a transient community, in which nobody knows or cares about their neighbors–this could be a problem. This self-fulfilling prophesy can only be realized by destroying existing communities comprised of long-term rent-controlled tenants.

This is the capitalists’ wet dream–to destroy communities and replace them with transients who would spend their money for awhile and move on, rather than fight for their long-established friends and neighbors. What do I do to determine how I will cast my vote on any given proposition? I follow the money. I simply vote contrary to a given campaign that spent the most money on a given issue. In this case Airbnb rich assholes have spent far more to oppose Proposition F than their opponents, so I would vote yes even if I didn’t have time to review the law. Swear to god, it works every time. Another reason tenants should vote yes on Proposition F? For now, we outnumber the greedy landlords, developers and sharing economy shitheads. How long will that last?

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

Why On Earth Would I Have To Pay My Building A $200 Move-Out Fee?

Why On Earth Would I Have To Pay My Building A $200 Move-Out Fee?

Why On Earth Would I Have To Pay My Building A $200 Move-Out Fee?

I’m a 31-year-old female who has been living in the same apartment since August 2011. My apartment was a 2 bed/2 bath unit in a 100+ unit condo building constructed around 2006 so I know I’m not covered under the rent ordinance. My roommate is the master tenant and has been on the lease since March 2010. I have been paying my fair portion of the rent to her and she pays the landlord. The only times I’ve ever communicated with the landlord was when I emailed him my original application with the information to run a credit check (after she agreed to let me move in) and to let him know when I was moving out. He has never responded to any email from me and communicates directly with the master tenant.

When I moved out from my apartment, I arrived at my building with a UHaul moving truck to move my bed frame, mattress, and a few larger items. Upon arriving with the moving truck, I was informed by the condo building’s front desk that there was a $200 non-refundable moving fee. Without me even asking, the woman at the front desk padded the elevators even though I had already made several trips moving boxes with my car that morning without any issues. I finished moving in less than an hour and the front desk confirmed that there was no damage made on any of the common elements while moving and the master tenant has refunded me my full security deposit.

The condo association keeps emailing me for a $200 check for the move-out fee. Since I was never informed either by the landlord or the master tenant about the fee, am I obligated to pay it? When I first applied for the apartment, I never signed any sub-tenancy agreement with either the master tenant or the landlord, despite my requests to do so. The landlord just never sent me any paperwork. Can they take me to small claims court for the move-out fee or is this something the owner has to settle with the condo association?

As my momma would say, “Jesus H. Christ!” (I don’t know what the “H” stands for, but I like to imagine that it’s more profane than my favorite middle name for Jesus a couple letters up the alphabet.)

Jesus H. Christ! This is a new one for my column and it illustrates just how far greedy weasel-landlords will go. Think extortion-racket-style, Toon Patrol Weasels in Who Framed Roger Rabbit?

You don’t have a lease (contract) with the landlord so there is no term you can breach. You cannot be compelled by contract to pay any move-out fee. You should point that out (loud and clear) to the bozos who are emailing you trying to collect it. You should also tell them if they attempt to send you to collections over this issue, you will sue them for defamation of character.

If they attempt to justify the charge as some sort of service they provided, remind them that their rationale is weak because they didn’t charge you to move in. Besides, how much can it cost to pay an employee (who is on duty anyway) to hang pads in the elevator?If they try to invoke a clause in the original lease providing for a move-out fee, tell them to take that up with your former roommate.

If, down the line, they try to withhold the fee from your roommate’s security deposit, they won’t be able to get away with that either. Civil Code §1950.5(m) states: “No lease or rental agreement may contain a provision characterizing any security as ‘nonrefundable.'” Any deduction for the move-out fee could be seen as a bad faith deduction resulting in the assessment of the statutory penalty of twice the security deposit.  (Civil Code Civil Code §1950.5(k)(1).) Do your roommate a favor and remind them of that as well.

Who knows if the owner is somehow liable to the homeowners association. It simply isn’t your (or your roommate’s) problem.

Unfortunately anyone who proposes a “move-out fee” with a straight face won’t have a sense of humor. There’s no way you can make him laugh and, like the Toon Patrol weasels, make him fly away and disappear. That’s why you’ll have to tell the homeowners association to try pull their scam on someone less gullible; someone who didn’t just get off the train (and bus) from Bakersfield.

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

Can My New Landlord “Bank” My Rent Increases?

Can My New Landlord “Bank” My Rent Increases?

Can My New Landlord “Bank” My Rent Increases?

Can the new landlord bank rent increases?

I live in a house in San Francisco with 3 apartments built before 1979. I’ve lived in my apartment for 10 years, I am 44 and my rent is $1350 plus $150 to park in the garage. I moved in in 2004 and in 2006 the house was sold and bought by a single woman. This is her only property. She lived in the house until 2011 when she moved out of state.  

We’re friendly and over the years I became the de facto property manager as my schedule is flexible, I am the longest running tenant in the house, and know a lot of its history from the previous owner, who I am also friendly with. I’m not compensated for this role.

My rent has never been raised until this year. We had a phone conversation as the landlord didn’t want me to first learn of this increase via official notice. I haven’t received this letter as of yet. The increase will start in June.

My question is: my rent is being increased by 14%. Not a big deal, but I’ve added up the past allowable increases and it seems like my rent is being increased for 10 years of allowable increases (tho slightly under as it adds up to 14.4% or 15.4% if you include 2014-2015).  

Is she allowed to increase my rent by a percentage that includes a time when she didn’t own the house? Or is there a different formula for an increase percentage when the rent has never been raised?

Before I answer your question, a little historical context is in order. After rent control measures were passed in Berkeley (1972, later voided by the Supreme Court and passed in its current form in 1980), Santa Monica (1979) San Francisco (1979), landlords filed many lawsuits questioning the ordinances’ constitutionality. They argued that the statutes violated due process; that they overstepped the municipalities’ police power thereby constituting a “taking ” of landlords’ properties (think eminent domain); and that the limitations on rent increases so interfered with landlords’ return on investment that the increases were unconstitutionally confiscatory.

After the dust settled, the courts generally found that municipalities were within their rights to control rent based upon necessary action to deal with emergency housing shortages. Of course, that emergency has continued to this day.

In one of the earliest cases dealing with rent control, Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129, the California Supreme Court voided the first Berkeley rent control ordinance (1972) because it sought to roll rents back to 1971 levels and prohibited any adjustments in maximum rents except under a unit-by-unit procedure. Essentially the court found that the process to increase rents would be procedural nightmare, creating an undue burden on the landlords. The court did not decide if regulating rent increases could have a “confiscatory” effect on landlords’ return on investment because the ordinance had been enjoined from the outset, making the assertion speculative. But they did make it clear that return on investment had to be considered when adopting a rent control ordinance.

The provisions are within the police power if they are reasonably calculated to eliminate excessive rents and at the same time provide landlords with a just and reasonable return on their property. However, if it is apparent from the face of the provisions that their effect will necessarily be to lower rents more than could reasonably be considered to be required for the measure’s stated purpose, they are unconstitutionally confiscatory. Birkenfeld v. Berkeley at page 165.

Why is this relevant to your question? Going forward, those who administer various rent ordinances (the San Francisco Rent Board in this case) have always been careful to consider the question of return on investment when they establish guidelines to deal with rent increases.

So the short answer to your question is that any landlord may bank the rent increases on a unit if the increases are within allowable annual limits. It doesn’t matter if the landlord owned the building during the entire increase period, because the increases could have been levied annually by any landlord. This is a method to ensure the allowable return on investment.

See the Rent Board’s annual allowable increase chart to see how much a new landlord can increase your rent. Just add the increases from one year after the inception of your tenancy or last rent increase to understand how much a landlord can “bank.”

But the increase cannot take place in June!

California Civil Code §827 is very clear that a rent increase over 10% requires a 60-day notice. You wrote me in early May and you hadn’t yet received notice. There’s no way that the increase could be effective today.

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

Legal My Landlord To Change The Terms Of My Lease After 12 Years?

Legal My Landlord To Change The Terms Of My Lease After 12 Years?

Legal My Landlord To Change The Terms Of My Lease After 12 Years?

Readers: This is a question I received last night with a plea for a quick response, as the reader has to answer his landlord in the next few days. While this reader got lucky, I rarely can answer your questions here in a time sensitive manner. If you have a problem that requires an immediate or near-immediate response, go to the San Francisco Tenants Union and buy a membership, it’s the best 45 bucks you’ll ever spend. Be sure to bring all of your relevant documents.

I live in San Francisco CA in a rent controlled apartment.

My lease renewal contains a provision that requires me to pay 2000 dollars as a fine for an early termination of the lease. The original lease, I’ve lived in the apartment for 12 years, states 300 dollars as a penalty for early termination. Can the landlord make this change in the penalty amount? The agent representing the owner asked me for documentation if in indeed the law stipulates he cannot. Can you help find it?

Another provision added to the new lease is a requirement of rental insurance. I feel it’s a good thing and I don’t a problem getting one. I wonder however if the landlord can indeed add new provisions and requirement to a renewal of a yearly lease agreement first signed 12 years ago. I’d greatly appreciate it if you can answer these questions for me for I feel at loss when looking at my lease renewal as I don’t know whether I should sign it or not.

I tried to talk it over with the agent representing my landlord but his words were “that is not negotiable”.

In my column, A Just Cause Eviction Does Not Mean “Just ‘Cause Your Landlord Said So,” I point out that tenants who live in rent-controlled tenancies do not have to move unless they are evicted with just cause.

If you reread Tenant Troubles: Can I Refuse to Sign A Lease, you will see that there is an argument that you can, ostensibly, be evicted for refusing to sign a new lease with the new early termination fee. Rent Ordinance §37.9(a)(5) provides that a tenant can be evicted if

The tenant, who had an oral or written agreement with the landlord which has terminated, has refused after written request or demand by the landlord to execute a written extension or renewal thereof for a further term of like duration and under such terms which are materially the same as in the previous agreement; provided, that such terms do not conflict with any of the provisions of this Chapter.

However, Rent Board Rules and Regulations §12.20 states:

Notwithstanding any change in the terms of a tenancy pursuant to Civil Code Section 827, a tenant may not be evicted for violation of a covenant or obligation that was not included in the tenant’s rental agreement at the inception of the tenancy unless: (1) the change in the terms of the tenancy is authorized by the Rent Ordinance or required by federal, state or local law; or (2) the change in the terms of the tenancy was accepted in writing by the tenant after receipt of written notice from the landlord that the tenant need not accept such new term as part of the rental agreement.

So you have to look at the new early termination fee clause and ask yourself, 1) Is this a material change? and 2) Can the landlord evict me if I don’t pay the new fee?

The clause certainly seems material. After all, it increases the original fee from $300 to $2000. But the landlord can’t evict you because, presumably, you’ve either given notice to vacate or you’ve already moved out. The key here is to look at the clause and determine when the payment would be due. If that has changed in the new lease, meaning if there is some new requirement to pay the fee before you move, you can comfortably tell the landlord, through his barely competent agent, to stick that clause in his orifice most closely evolved to receive it.

If the language for payment is the same as the original lease, consider that this may not be a battle worth fighting now, because if and when the landlord sues you for the fee later on down the line, you can use Rule §12.20 to bolster your argument in small claims court that you don’t have to pay it. You can also make the argument that the fee isn’t warranted as a “liquidated damages” fee.

If you apply this analysis to the new requirement to buy insurance, you can use the same logic as did the court in NIVO 1 LLC v. Antunez (2013) 217 Cal.App.4th Supp. 1, 159 when it found: 1) Rent stabilization ordinance prohibited change of terms to deem any breach a material breach, and 2) Evidence was sufficient to support finding that failure to maintain insurance as an immaterial or trivial breach.

It is clear and supported by case law that the insurance requirement can be defeated in court. I suggest you print out the case and roll it up nice and tight.

Landlords think they’re so clever when they design new tenancy requirements to harass their long-term rent-controlled tenants. You know the real reason the landlord is fucking with you. He wants to get rid of you so he can charge $12,000.00 a month for your one-bedroom apartment. Don’t let him do it.

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

Why Is My Landlord Demanding A $150 Late Fee?

Why Is My Landlord Demanding A $150 Late Fee?

Why Is My Landlord Demanding A $150 Late Fee?

I am a 25 year old woman who has been living in a rent-controlled apartment in a six unit building for about 1.5 years.  My apartment is three bedroom, two bath and I share it with two other roommates.

I mailed my rent check in the mailbox on the day it was due, but since it was on a weekend it didn’t get postmarked until that Tuesday (the 4th) and received on the 6th.  My landlord is now trying to invoke the late fee clause of our lease, which is $150 fee, to be included in next months rent.

He claims that I can just mail my check two days before the 1st to have it arrive on time. But this is just not possible for us since my roommates and I receive our paychecks at the end of the month.  My roommates write checks to me (well, we use Venmo) and I send in one master check. They need their paycheck to pay me, and I can’t cover their rent alone without potentially bouncing a check.  Therefore, we really can’t put our check in the mail before the last of the month.  I have requested in the past to allow us to pay our rent electronically but he has ignored this request.

My first question is, are late fees legal if they are included in the lease and, if they are, is $150 considered a legal amount or egregious for this time frame and a $3820/rent?  Bonus question: is there any way I can force him to accept electronic payments?  I would like to not stress about this happening again and save money on stamps and envelopes.

In the past several months I’ve received many more calls from tenants about late fees and rent payment methods, leading me to believe that some landlord “working group” decided to focus on this method of tenant harassment. S.P.O.O.K.S.?

As usual, they got it wrong. If the landlord only provides one option to deliver the rent, and that is mailing it, your payment is “conclusively presumed” to be accepted on the date of mailing.

If the address provided by the owner does not allow for personal delivery, then it shall be conclusively presumed that upon the mailing of any rent or notice to the owner by the tenant to the name and address provided, the notice or rent is deemed receivable by the owner on the date posted, if the tenant can show proof of mailing to the name and address provided by the owner.

(I am not a fan of bank-generated checks that are supposed to arrive on a given date. I have consulted with quite a few tenants whose landlords genuinely claimed that they weren’t receiving the rent on time despite that fact that the tenant had scheduled automatic payment a few days before the first.)

Ken Carlson, tenant lawyer, and proprietor of the website, California Tenant Law, has an interesting take on late fees. Mr. Carlson makes a convincing argument that late fees are simply illegal.

Late fees are liquidated damages, damages that the landlord in this case, suffers because the rent is paid late. Because they are 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 late fee is void.

Many leases, however, have such language. Then you move to the second part of Mr. Carlson’s argument–that late payment damages are not impracticable or extremely difficult to fix.

Civil Code §3302 defines money payable with interest:

The detriment caused by the breach of an obligation to pay money only, is deemed to be the amount due by the terms of the obligation, with interest thereon.

Mr. Carlson states:

That interest is the “legal rate” of 10% per year, without compounding, or 1/3650 th of the monthly rent per day. On a $1000 monthly rent, that’s 27 cents per day, or $1.92 per week.  The word “deemed” in this statute is significant. It means that even if the landlord claimed personal injury by furrowing his brow and gnashing his teeth over your late payment, pain and suffering over his deep grief that he would have to cover the mortgage out of his savings, paper and processing costs from having to write you a 3-day notice to pay or quit, the LAW says he’s only suffered and is only due the unpaid amount and the few paltry cents of interest.

In your example, your rent was three days late. Using Mr. Carlson’s example (divide $3,820 by 3650), your late fee would be approximately $1.05 per day or $4.15 for three days.

You may want to send your landlord this article with a check for $4.15 and tell him that you’re genuinely concerned that teeth-gnashing and brow-furrowing may be bad for his health.

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

Can My New Landlord Take Away My Storage Space?

Can My New Landlord Take Away My Storage Space?

Can My New Landlord Take Away My Storage Space?

My building is two units over a garage & storage space. Originally the basement was divided 50/50 between apartments but apparently the landlord didn’t give subsequent tenants in the other unit storage.

My original landlord died and her sister has taken over. She keeps arguing about my storage in the basement. She is now trying to rent the other half to someone.

Four questions:

My landlord claims I have to prove I’m entitled to 50% of the storage space as it’s not detailed in my lease. It’s been understood for over 12 years!  Do I really have to try and find a downstairs tenant from long ago to say its true?

The landlord moved boxes stacked in my space. She claims it’s not my space & the boxes blocked access to the space she’s renting. I think she can’t touch my stuff. Access via my space is still easy but I don’t have to allow access since she can get there via the parking spaces?

Can I change the locks and require 24 hours notice to either me or the downstairs tenant when she wants access?

Is she liable if anything is stolen because she allowed entry to whomever rents the storage? (The prior landlord allowed workmen access who stole.)

For purposes of my response I’m going to assume that you live in a rent controlled building in San Francisco.

Storage is one of the first things the new landlord will remove from a pesky, low-paying, long-term tenant–an obvious ploy to begin to make a rent-controlled tenant uncomfortable, or as in this case, an income boosting device.

Storage space often goes unmentioned in leases and that’s your problem. Yes, it will be incumbent on you to prove that your storage is part of your tenancy. Assuming that the key to which you refer is a key to the storage space, I think that’s fairly convincing proof that the space came with your tenancy. If that is true, you should file a “Report of Alleged Wrongful Eviction” with the Rent Board.

Why can you allege wrongful eviction? Rent Ordinance §37.2(r) states in part:

Garage facilities, parking facilities, driveways, storage spaces, laundry rooms, decks, patios, or gardens on the same lot, or kitchen facilities or lobbies in single room occupancy (SRO) hotels, supplied in connection with the use or occupancy of a unit, may not be severed from the tenancy by the landlord without just cause as required by Section 37.9(a).

When one considers each of the just causes listed in Rent Ordinance §37.2(a), the only applicable just cause is owner move-in (Rent Ordinance §37.2(a)(8). Your landlord could only evict you from your storage space if she lives in the building and needs the space for herself. She can’t evict you simply to rent the space to another person.

Even if you decide not to file a Report of alleged Wrongful Eviction, you should immediately file a petition alleging a substantial decrease in services at the Rent Board.

And yes, you will be required to provide any and all evidence that the storage was included as a service in your initial agreement. You should get declarations from former tenants, find any documents that may mention the storage, etc. The Board may find that the landlord has the power to remove the storage, but if they find that the removal constitutes a decrease in service, they will reduce your rent accordingly. The landlord should be made aware that a reduction in your rent will defeat her purpose in renting the storage space to someone else.

If you have a key to the garage instead of your individual storage space, I don’t recommend that you change the locks. BTW I very rarely recommend that action in any given situation, because it makes a tenant vulnerable to eviction.

I do, however, recommend that you tell the landlord in no uncertain terms, “Don’t touch my stuff!” Tell her that you will call the police if anything comes up missing and that she is responsible for security in the garage/storage space and could be liable for any loss. You should also point out that it might be wise for her to refrain from any attempt to rent the space until after she receives a decision from the Rent Board. In the event she rents the space and the Rent Board finds that it is yours, the landlord could be sued by the new renter for breach of contract.

Don’t argue with your landlord. Just file with the Rent Board to make her reconsider her actions.

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