Pigeon Poop Problems

Pigeon Poop Problems

Habitability

Now that the weather is getting warmer, I’d like to open my windows and get some fresh air in my apartment. The problem is that the windows and building are filthy grimy and covered with pigeon poop on the outside. The ledge and the side of the building are too. If I open the window the soot all blows into our apartment and I don’t even want to know what diseases could come from the poop. Are landlords required to wash the facade of a building? What about windows? I can still see out of them, but just barely. And if a landlord is required to do this, how can I get mine to do it? Our landlord does the bare minimum to maintain our building.

My friend, Emma, is two and a half years old. She’s a big girl now and doesn’t need a diaper. But three or four months ago she could fill a diaper as well as any 6’5″ sailor who ate all the beans in the galley. I’m talking arm pits to knees! Where does it all come from? It’s as if small children are packed with adult-sized digestive systems. Same with pigeons; they generate a remarkable volume of poop given their size. Maybe it’s because they will eat anything, including the bodies of their fallen comrades.

Everyone who lives in a city has a pigeon story. I used to drive an MG convertible. I remember waiting at a stop light on Division Street. I happened to look up and from the steel girder above I noticed a pigeon’s ass maneuvering to drop a bomb. I couldn’t go anywhere! I ended up with what seemed to be a bucket load of shit running down the back of my shirt. Needless to say, I don’t believe any of wives’ tales about pigeon poop bringing good luck.

In fact pigeon poop is dangerous. There are several diseases associated with p-scat. Pigeons are the subjects of eradication programs throughout the world’s large cities.

In San Francisco, we have laws prohibiting the feeding of pigeons. The San Francisco Department of Public Health has a program devoted to dealing with pigeons and their excrement. If you have already complained to the landlord about the problem in writing and he has done nothing, call them.

I am not aware of any specific legal requirement for landlords to wash windows or facades of their buildings. But I’m willing to bet that there are other issues with the building and your apartment, given the lack of maintenance. Take a look around and check to see if there is peeling paint; windows that won’t open (sealed shut with shit?); cracks in the walls; leaks; other safety hazards, etc. If you believe there are violations, inform the landlord in writing. Again, if he doesn’t respond, call a Housing Inspector with the Department of Building Inspection, make a complaint and arrange for an inspection.

If the landlord tells you there is nothing he can do, maybe he needs a diaper.

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by Mar 24, 2010
Roach Recourse?

Roach Recourse?

Habitability

I moved into a studio apartment about three months ago, and am having a few problems with pests. First of all is a persistent ant problem.Of greater concern (to me) is a total of three cockroach sightings: one adult, and two that looked like babies. I have notified my landlord in writing whenever I’ve seen a roach; he also knows about the ants, but I’m sure he can’t do much about them. Our building is sprayed semi-monthly. In a past column you mentioned that pests aren’t covered by San Francisco housing code. Do I have any recourse if I keep seeing roaches? I’m not sure if I can live with them!

I need to set this straight. While I reported that pests are not necessarily covered by the housing code, they are certainly covered by California Health and Safety Code 17920.3 (a)(12), which provides that any building or unit in which there is an infestation of insects, vermin, or rodents as determined by the health officer that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof shall be deemed and hereby is declared to be a substandard building.

The question is: Will a health officer, an inspector from the San Francisco Department of Public Health, find that an ant infestation rises to a level that endangers the life, limb, health, property or safety? I honestly don’t know. You have to contact a health inspector (which you can do via 311) to find out. As I pointed out in Tenant Troubles: Ant Infestation “[A]nts do not carry disease, nor do they make it a habit to bite people unless they are molested.” The San Francisco Department of Public Health does not list ants as a health code violation.

Cockroaches, on the other hand, do carry disease and are uniformly recognized as insects that do endanger safety and welfare. Contact the DPH (again, via 311) to report a complaint if you see that your cockroach infestation is becoming a problem. Frankly, I’m not sure that a three cockroach sighting amounts to one. DPH will tell you what comprises an infestation worthy of concern to them.

Frankly, it seems like your landlord may be trying to be vigilant, given the fact that he sprays for pests on a semi-monthly basis. I’m not so sure that you could demonstrate a decrease in services for purposes of a Rent Board petition, given the facts as you have stated them.

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by Mar 10, 2010
Ant Infestation

Ant Infestation

Habitability

This is probably something a lot of people are going through with the cold weather: ant infestation. I rent a half-submerged basement in-law, and the landlord lives in the upstairs part of the house. I’ve lived here over four years and know the LL well. I also know the ants well, and have been vigilant this year. I have watched a giant swarm in the back yard walk over our Grants for Ants stakes for weeks, while spraying Orange Guard all around the base of the house and windows.

Then, at the beginning of the cold snap, the ants were gone. My stomach sank. I knew they were in the house. A few days later they made their ingress at the base of our food pantry, and there were suddenly hundreds of ants swarming on those food shelves, and over to more food shelves on the other side of the house. Luckily we double ziplock and tupperware most of our food, but it was a sign of doom as far as I’m concerned. I took pictures, cleaned, and left the LL a voice message. He told me to spray raid and that an exterminator is very expensive. Now they are in my bedroom and in the bathroom, going after crumbs from lunches long ago and morsels of catfood. I’m still cleaning and photographing, but nothing short of an exterminator is going to make them go away at this point. What are my rights???

I read a little factoid the other day that stated the combined weight of all the ants in the world is approximately the same or greater than the combined weight of all human beings. Ants are the perfect Stalinists. As we all know, ants are omnivorous, industrious, well-organized little creatures that could devour the whole world if they were as large as say, golden retrievers. They are also smart enough to go inside when it gets cold.

When I read your question, I was not convinced that an ant incursion rose to the level of a housing violation because ants do not carry disease, nor do they make it a habit to bite people unless they are molested. We’re just too big for them to eat. I asked a San Francisco housing inspector if it was their policy to write a violation on a unit with an ant infestation. He confirmed my suspicion and told me that they do not. In fact, he reminded me that pests in general are not covered in the Housing Code.

He pointed out that when ants do emerge as a complaint, housing inspectors can refer the complaint to the Environmental Health Program of the SF Department of Public Health, which in turn, assigns a Health investigator or inspector to perform an inspection. When you click on the site, notice that ants are not mentioned in the list of pests. So my general advice to tenants with ants is that you can make a complaint, but I’m not so sure that much can be done to make the landlord exterminate them.

You, however, have a bigger problem! My guess is that you are living in an illegal unit. If you share your electricity with the landlord or your utilities are included in the rent it is very likely that the unit does not have a Certificate of Occupancy. Generally it is not a good idea to call housing inspectors because they could notice, for example, no secondary means of egress, and violate the whole unit. The landlord, to abate the violation, would have to give you a 60-Day Notice to Vacate, pay you half of the
href=”http://www.sfrb.org/Modules/ShowDocument.aspx?documentid=1928 “>statutory relocation fees,
pay you the other half when you vacate, and remove the kitchen from the unit.

You need to discuss this with a qualified tenant counselor before you begin to make complaints about your landlord. Go to the San Francisco Tenants Union or the Housing Rights Committee of San Francisco.

I hope I’m not sounding too flip, but in the meantime, try Raid. I use it very effectively in a building that houses at least a billion ants. I just spray at the point of entry. Granted, my unit is not below ground level, but Raid works for me.

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by Dec 23, 2009
How Can I Get My Landlord To Consistently Heat My Apartment?

How Can I Get My Landlord To Consistently Heat My Apartment?

Habitability

Like many renters in old buildings, I rely on steam heat as my only source of warmth. In my building – and I know it is this way in others – the heat is centrally controlled and goes on and off building-wide. This means I have no way to turn the heat on when it’s cold, or turn it off when it’s too hot. The wiring can’t handle space heaters, so I resort to opening my gas oven and turning it to 400 degrees on the colder days, which may be unorthodox (or even illegal?) but is surprisingly effective. During hotter days the heat will sometimes go on even though the room temperature is certainly well above 70 degrees, and I have no option but to sweat it out.

When I moved in I was told the heat needed to be on a certain number of hours each day. This contradicts what I read on the SF Rent Board website, which explains that the metric of adequate heat is by temperature and not just hours of heating. I’ve never been able to pinpoint the heating schedule in my building as it appears to vary, but it is off most mornings from 6-8am and for large chunks of most evenings – the times when I need it most.

Is there any action I can take to improve this situation? Even if I am unable to control my own heater, it would be helpful if I could at least convince the landlord to publish a heating schedule and maybe even get that schedule adjusted so that the heater is used in a more rational manner. While I would love more heat during those cold hours, I also fear an over-response resulting in more heat during warmer days. Is there any recourse against over-heating an apartment?

I believe the building was built in 1912 and is eight stories of mostly studios in downtown San Francisco.

Your question is certainly appropriate this week. As I write this response, I’m bundled up in my minus 40 squall jacket. And let me tell you, it ain’t easy typing with gloves on.

You should not have to heat your apartment with your oven. That’s the bottom line here. It’s dangerous, expensive and while it is not per se illegal, if you start a fire, you’re going to get blamed for it.

First let’s look at the law. San Francisco Housing Code §701(c)(1) provides the minimum heating requirement for apartments:

“[H]eat capable of maintaining a room temperature of 68 degrees Fahrenheit (20 degrees Centigrade) at a point midway between the heating unit and the furthest wall and which point is three feet above the floor, shall be made available to each occupied habitable room for 13 hours between the hours of 5:00 a.m. and 11:00 a.m. and 3:00 p.m. and 10:00 p.m.”

Clearly you can demonstrate that the boiler isn’t timed correctly if you are not receiving heat between 6 a.m. and 8 a.m. or in the evenings before 10 p.m. I recommend that you talk to other tenants in your building to see if they are experiencing the same problems. In this case there may be persuasion in numbers. You should write the landlord, en masse, pointing out that the boiler seems to be working, but that the timer does not conform to the law. Give the landlord some time to fix the problem. If the landlord does not respond or refuses to fix the timer, you should call a San Francisco Housing Inspector and make a complaint.

Regarding the heat in the summer, there may be people in the building, for example, elderly retired tenants, who need the heat. Of course almost everybody requires some heat in the summer in San Francisco, even Mark Twain. But seriously, as long as the heat is working the way it is supposed to, you should be able to open windows to cool down in the hotter months.

Recently, in a tenant lawyer list serve, a colleague mused that the San Francisco requirements are antiquated and don’t consider people who work at home, who are sick or who are retired and at home during the day, not to mention folks who work the nightshift. It’s a point well taken which deserves consideration politically. Although this might not be an issue if there were requirements to refurbish old buildings to make them more livable. Where the hell is the stimulus money to insulate residential buildings and provide efficient heating systems? Oh yeah, I forgot, it’s in Afghanistan and Lloyd (Goldman Sachs CEO doing God’s work) Blankfein’s pocket.

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by Dec 16, 2009
Smoked Out

Smoked Out

Habitability

W[/dropcaqp]e live in Oakland in a building with about 100 units, and per Oakland ordinance, smoking is prohibited in common areas of the building, even outside on the patio. Per our lease, smoking is prohibited in all apartments and in the entire building.

Recently, we have been virtually smoked out of our apartment by new neighbors across the hall. We have taken to putting a towel at the base of the hall door to keep the smoke out. I alerted management, and they said that if they don’t know exactly who the culprit is, they can’t do anything. They did post a notice in the elevator reminding people this is a nonsmoking building, but I don’t think that’s a very “official” notice since not everyone takes the elevator. I know the economy is bad and it’s difficult to find tenants, but how can I get the management to enforce the nonsmoking policy? And do I have a private right of action against the landlord or the smoking tenant?

[dropcaqp]I[/dropcaqp] had to have a couple of cigarettes thinking about answering this question. This is a tough one. I get uncomfortable answering questions that involve tenant versus tenant issues because the ultimate solution is usually an eviction. And I don’t like to see anybody get evicted.

With that in mind, let’s look at your problem. Assuming that all of your assertions are true, it seems clear that the tenant across the hall is in breach of his or her lease. If you informed management that the tenant across the hall is a smoker, I don’t understand how they cannot identify the culprit. If the lease is clear about prohibiting any smoking, then evidence of smoking in the unit is enough to warrant action. It doesn’t really matter who is doing the puffing.

If the landlord wanted to strictly enforce the no smoking policy he could simply serve the tenant a 3-Day Notice to Cure (stop smoking in the unit) or Quit (move out). If the tenant did not comply, the landlord can serve him or her with an unlawful detainer lawsuit. To prove the case, the landlord would have to rely on evidence that the tenant is breaching the lease. If you are serious about this, you should document your complaints in letters to the management company. If other tenants are offended by the smoking they should be writing letters too. Remember that the landlord cannot use letters at trial because they are hearsay evidence. He would have to rely on your and other tenants’ testimony.

I have found that landlords are reluctant to deal with tenant versus tenant issues. They don’t want to spend the money to litigate. Hell, most of them don’t want to spend money to fix the roof. In this case, the smoker isn’t breaking the law if he or she smokes inside the apartment. You can’t call the police to ratchet up the evidence and force the landlord to acknowledge your complaints.

You could try to file a petition for decrease in services at the Oakland Rent Board (assuming your building is covered). It is likely that you relied on the fact that the apartment was in a non-smoking building when you rented it. I think you can demonstrate that the neighbor’s smoking has interfered with you quiet enjoyment of the premises.

But I’m not sure that you can demonstrate a substantial decrease in services. There are no California habitability statutes that apply to your situation nor is it a code enforcement issue. I think this would also impact any private right of action for you, but that is not to say you don’t have a case against the landlord. If you can demonstrate personal injury or other damages, you may have a stronger case. I think an action against the tenant would be stronger if he or she was informed that the smoking was bothering you. From now on, all of your complaints should be in writing. You should also consult an attorney.

Recently, The New York Times reported on the movement to prohibit smoking in apartment buildings. The dangers of smoking are well-known, yet I’m not prepared to advocate for ordinances prohibiting smoking in residential units. Yes, I am a cigarette smoker, but I am also a tenant who lives in a rent controlled apartment. I don’t think it’s a good idea to give landlords another rationale to evict rent controlled tenants. I don’t want landlords literally sniffing around their buildings to find offending tenants, posing as righteous protectors of public health, when in fact the motivation is to kick the tenants out and raise the rent. Better to enforce existing regulations that require weather-tight units. You said that you have to put a towel under your door to keep the smoke out. Now that’s a violation.

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by Nov 25, 2009
Time To Get Medieval?

Time To Get Medieval?

Habitability

A few weeks ago, in one of my usual internet searches for local tenant news stories, I ran across an article that saddened and enraged me.

A three-month old baby in Louisiana died in her home from blood loss due to rat bites. There were holes in the walls and holes in the floor. Evidently, the landlord spent FEMA money earmarked to repair the house on something else, but the authorities were still trying to determine if they should file criminal charges against the parents! Judging by the comments I found on various websites, most people want to blame the tenants for this tragedy. “They should have been watching their kid.” Or this particularly vile response from an especially moronic Examiner reader: “It’s always someone else fault, isn’t it? Why not blame the landlord …? Yes, he may be a slumlord. His rental house is probably a dump. But it’s a matter of common sense and personal responsibility. Natalie’s parents must have had the option of moving out and finding a better place. Or taking it upon themselves to fix up the home.”

William Randolph Hearst would have been pleased with this commentator—another dupe so mired in her own petty, vindictive, little world that she will buy anything and crap on anyone less fortunate to make herself feel better. How about a little compassion?

I mentioned last week that many tenants opt to live in these hovels because they’re afraid they’ll be evicted if they complain or that they can’t afford to move.

Why not blame the landlord? It’s a good place to start. I don’t know if Natalie’s parents informed the landlord about the conditions in the house. I don’t know where his culpability began. All I know is that he must have known something. He freakin’ applied for FEMA money to repair the house! The news article notes that the landlord was unavailable for comment. If he won’t comment I will.

We don’t live in the middle ages. Or do we? As I have already noted, it wasn’t until 1970 that California codified what constituted a “tenantable” dwelling and finally in 1986 the California legislature passed the law allowing a tenant to avoid eviction for nonpayment of rent on an uninhabitable dwelling.

We do not live in the New York City tenements in 1881 when the New York Times graphically reported that a baby died from rat bites. Or do we? Note that the report stated that the family was “poor but cleanly” but the landlord who rented the dwelling to them was not mentioned at all.

What happens to landlords who are convicted of habitability crimes? Not much, it seems, just like medieval times. I did a quick search of the web to find articles about landlords who have been punished criminally in the United States.There a few instances when landlords have been sentenced to jail for code violations, but it is interesting to note that most of the articles that chronicle criminal sentences for landlords come from Great Britain and Canada, not here. Is there a health care comment in that? This example while rare is, unfortunately, typical: An Ohio landlord was sentenced to ninety days in jail for renting a trailer that he knew had faulty wiring. Five tenants died in a fire caused by that faulty wiring.

Or the Bronx landlord who was was finally sentenced to nine days in jail and fined $156,000 for failing to address 2,268 open violations at this building. Ninety days in jail when five people are dead? Nine days in jail for endangering the lives of hundreds of tenants? There are plenty of pot smokers in the United States spending far more time in jail. “Oh, Dave,” some of you more legal-minded folk out there are saying. “You’re a lawyer, you should know that you can’t charge people with crimes if you can’t prove their intent. That slumlord in Ohio didn’t intend to kill five people.”

Bad Landlord

Well, I say, that’s the problem when you apply medieval legal doctrine to modern problems—a conundrum unique to landlord tenant law.

In other words, we must change our core assumptions about the landlord tenant dynamic. Rather than relying on thousand year old common law to assess a landlord’s intent when he takes a tenant’s money, only to put the tenant in peril, we should pass laws to define that transaction as theft.

If a tenant dies during the commission of that theft, the landlord is guilty of murder, pure and simple. It is only a matter of writing laws to define the crime, just like we did when we mistakenly defined smoking marijuana as a crime. When tenants can get sick or die due to a landlord’s fraud, it is no mistake to define that as a crime.

Tenants need legislative protection from unscrupulous landlords and should be demanding it every minute of every day. Oh, you say, it will cost too much money to enforce new laws to curb murderous landlords. In California we spend $170,000,000 a year to to enforce marijuana laws. Don’t tell me we ain’t got the dough.

Finally if we, as a society, are going to insist upon maintaining our medieval, status quo assumptions about how landlords and tenants should interact, maybe we should consider bringing back medieval punishment for bad landlords—pillories.

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The opinions expressed in these articles are those of the author, do not constitute legal advice and the information is general in nature.

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You understand that no attorney-client relationship will exist with Crow & Rose unless we have agreed to represent you. You should not respond to this blog with any information that you believe is highly confidential.

If you are seeking legal representation from Crow & Rose please respond by either calling us at (415) 552-9060, or going to our contact page and filling out the form.

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by Aug 19, 2009
Every Tenant Has One–An Implied Warranty of Habitability

Every Tenant Has One–An Implied Warranty of Habitability

Evict This! Classics

No, not a rat or a rat-like landlord (although you may have both). Every tenant has an implied warranty of habitability. In last week’s post I listed several conditions in a unit that constitute breaches of the implied warranty of habitability. If you find an electrocuted rat in your kitchen stove, odds are that your landlord has breached the implied warranty of habitability in your lease. What if he won’t fix the problem? What can you do?

Believe or not, one of the most common strategies for tenants is to do nothing. Many tenants are willing to put up with significant breaches of the warranty of habitability like no heat or mice partying in the kitchen all night because the rent is cheap and they don’t want to make waves with the landlord. Besides, the Cheese Ball landlord won’t fix the problem correctly anyway. “Here’s a space heater and some rat traps and some buckets.” Or worse, the landlord’s “contractor” who will tear the place up for weeks on end only to leave a gaping hole in the bathroom. So tenants do nothing or repair some conditions themselves.

I understand the dilemma. As an ex-house painter, handyman, there are many repairs I can make myself. In a former tenancy I did that, until the back stairs separated from the house and raw sewage filled the garage twice in one week. I had to communicate more effectively. That tenants are still afraid of reprisal because they ask a landlord to do his job is a disgusting state of affairs, indicative of a system of law and enforcement hasn’t improved much over a thousand years. If you are a tenant you are still a villain.

Inform the landlord in writing.

If you are starting to feel raw at the backside from taking it from the landlord, start by complaining to the landlord in a letter. No phone calls. If you ever have to enforce your rights, the landlord will lie and say he was never informed. You can’t prove that you informed him with a phone call. Include photos of the offense if you can. You’re being helpful by including photos and you’re also implying that you are documenting the offenses and that he better get his ass over there pronto. Be polite. Nobody will read a letter that is over a page long so make it short and sweet. Remember to ask the landlord for a reduction in your rent for the time you had to put up the sewage, rats, leaks, mold, etc. Also ask for the value of any personal property that was damaged by the sewage, rats, leaks, mold, etc.

Don’t make any threats in the first letter unless you have been calling the landlord about the same problem. If you have already informed the landlord or if you are writing your second letter, tell the landlord that you will be calling the appropriate authorities if he doesn’t fix the problem immediately.

Call a housing inspector.

In San Francisco you can call a housing inspector from the Department of Building Inspection (DBI) or the Department of Public Health to report substandard conditions in your unit. You can arrange for a housing inspector to visit your unit. If they find violations of the housing or building codes they will issue a Notice of Violation (NOV). Usually the landlord will have 30 days to correct the defective conditions. NOVs are public records and copies are available at the DBI. You can also view complaint and permit details online.

In other counties, code enforcement is usually the purview of city government. You can find out how to request an inspection by checking your city’s website and searching for “code enforcement.” I have provided a list of links for selected cities on this site. NOVs make great evidence if you need to file a Rent Board petition or sue later.

Childhood Lead Poisoning Prevention Programs

If you have a small child and you have peeling paint and paint chips call your local Childhood Lead Poisoning Prevention Program overseen by the California Department of Public Health. Don’t wait for the landlord to perform shoddy and unsafe repairs.

File a petition at the Rent Board.

If the landlord will not decrease your rent or replace your damaged belongings, gather your letters, photos and NOVs and, if you have one, file a petition at the Rent Board for decreases in services. You should check with your local Rent Board to find out what you need to do to file a petition. I will also be writing about that in a future post.

Repair and deduct from rent?

If the landlord refuses to correct the problem after receiving an NOV (believe me, many of them refuse despite the threat of fines) should you repair the problem yourself and deduct the cost from the rent? In fact Civil Code §1942 only requires that you notice the landlord of the substandard conditions and that you are presumed to have given the landlord sufficient notice after 30 days. However, you can only deduct an amount up to the value of one month’s rent. I rarely recommend this course of action because you could find yourself in an eviction action for nonpayment of rent which could be very expensive to defend. Never, ever just stop paying rent without consulting an attorney or discussing it with your local tenants union.

Move out?

If you or your loved ones are truly endangered by conditions in your unit, and you can prove it, sometimes the only alternative is to get out. This is called constructive eviction—even though the landlord hasn’t given you a notice to quit (move out) his negligence has forced you to move. The obvious example of constructive eviction is when the roof caves in after you warned the landlord about the leaks. You have no choice but to move. It is likely you will have to sue the landlord for your damages, so you must be certain that the landlord’s failure to repair caused the unsafe conditions that forced you to move. Consult an attorney about this, if it’s not obvious to you and everybody else that you simply must move.

Sue the landlord for breach of the implied warranty of habitability.

If your damages are $7,500 or less (California) you can try to sue in small claims court. Marshall all of your evidence, then before you file check out Everybody’s Guide to Small Claims Court in California, by Ralph Warner for Nolo Press.

If you feel your case is worth more than $7,500 and that it will be worth the time and effort to sue the landlord in superior court, consult a lawyer. Sometimes it’s a good idea to join with other tenants in the building to make the case attractive to an attorney who will consider representing you all on a contingency basis. If you live in San Francisco join the San Francisco Tenants Union and get a copy of their list of lawyers who only represent tenants.

Call the district attorney?

Only if the conditions in your unit are bad, I mean criminally bad—violations up the wazoo with serious, life threatening injuries and rats the size of cows. Usually you have to be dead to warrant any attention from district attorneys because they have real criminals to catch, you know, like pot smokers.

Is This Legal Advice?

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Have you spoken or written to us personally?
Did we respond?
Did you sign a contract with Crow & Rose?
Did you pay us?

The opinions expressed in these articles are those of the author, do not constitute legal advice and the information is general in nature.

Seek the advice of an attorney for any specific problem.

You understand that no attorney-client relationship will exist with Crow & Rose unless we have agreed to represent you. You should not respond to this blog with any information that you believe is highly confidential.

If you are seeking legal representation from Crow & Rose please respond by either calling us at (415) 552-9060, or going to our contact page and filling out the form.

Crow & Rose, Tenant Lawyers

605 Market Street, Suite 400
San Francisco 94105
Phone: (415) 552-9060

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by Aug 12, 2009
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