Through the Roof

written by VARIOUS AUTHORS

Q.My tenants keep getting on the roof, claiming they have “roof-deck rights.” There is no roof deck. What do I do?

A. This is very common problem and a problem it is, from many angles: potential liability for landlords, escalation of landlord/tenant rights disputes, violations of San Francisco Planning and Building Department permitting rules regarding setbacks, neighbor notification, health and safety, complaints by neighboring property owners/occupants, etc.

For this column, I’ll address only the “illegal” use of the roof: when there is no permit-issued roof deck construction or specific provision in the lease or agreement between the landlord and tenant that allows use of the permitissued roof deck as an amenity to the tenant’s occupancy (for which the tenant pays to utilize).

In many multi-unit buildings, there can be an emergency exit door allowing roof access in case of emergency. That is, pursuant to San Francisco Planning and Building Codes, buildings exceeding a particular square footage may require an unlocked, unfettered roof access door in case of emergency, allowing occupants onto the roof to reach the fire escape of the building and/or as an “area of refuge” for safety and ultimate rescue by personnel of emergency services.

As these roof access doors must be left unlocked for the reasons stated above, tenants/occupants (and their guests) may decide to go on the roof during non-emergency situations—that is anytime they so desire—to take a look around, hang out, bring a beach chair, drinks, food, etc. Sometimes, the illegal use of the roof by tenants is very elaborate, including chairs, tables, umbrellas, BBQs, “floor coverings,” planted gardens, etc. I have even experienced a “wet bar” and dance floor set up on a roof by tenants of a building— all illegal activity!

A roof deck requires approvals from the City and County of San Francisco. Without said approval, the roof may not be used as a common-area amenity by the tenants. If a neighboring property owner (or any interested party) complains to the Building Department of these tenant activities, the landlord will be issued a Notice of Violation, requiring either abatement of the use or directing the landlord to the option of obtaining a permit for said roof deck.

Without a permit, no roof deck activity. A permit would not issue if it violates the Planning Code and/or Building Code. These design guidelines imposed by the City address setbacks, privacy concerns by other neighbors, required neighborhood notification to surrounding property owners, etc. (No one wants to live beside tenants partying on a roof, so don’t expect the support of your neighbors). Then, the Building Department shall require appropriate construction materials, plans, inspections, for example—sometimes a very expensive endeavor.

However, if the landlord has been allowing the activity for some time—either inadvertently or deliberately—the landlord may then be vulnerable to a claim by the tenant users of a reduction in housing services when it is confirmed the landlord cannot obtain a permit. Further complicating matters, if you have numerous sets of tenants utilizing the roof: Upon whom do you serve the Notice of violation of lease covenant? Which tenants do you evict? All of them? Some of them? Without proof (via video surveillance) of the perpetrator(s), landlords risk accusing/ terminating the wrong tenants.

And we are all aware of accidents over the years when persons fall from roofs, roof decks, balconies—many of said tragic events have occurred with properly constructed and permitted roof deck elements. It is a liability and expense that may not be covered by insurance should an injury occur and/ or a claim be made due to the illegal roof access activity.

Landlords must take action to stop this activity immediately. Landlords should post signs on the emergency roof access doors indicating said roof access is in case of emergency only, is deemed a trespass if accessed by tenants for non-emergency purposes, and send a letter to all tenants confirming the terms of the Emergency Roof Access Door usage. The door should trigger an alarm—either silent or sounded— to the landlord, property manager, or onsite manager that the trespass is occurring. I highly encourage video surveillance of the door to “catch” any perpetrator and take swift action of the violation about the lease covenant.

—Denise A. Leadbetter

Q. I’m only getting section-8 applicants for my vacant units. I’ve never rented to a section-8 tenant before. Is there anything I should know before moving forward?

A.Many of the features of a Section 8 tenancy will be new to you, but keep in mind, a Section 8 tenancy is still a tenancy. Of course, you do need to understand the differences so you can comply with the regulations.

First, it is important for you to know that, while you have some flexibility in selecting your future tenants, you actually cannot discriminate against Section 8 applicants. California’s Fair Employment and Housing Act protects prospective tenants from discrimination against categories like race, religion, gender, etc. A 2018 case reviewed a challenge to a local ordinance expanding these protections to “source of income” (including Section 8 housing choice vouchers).

The Court of Appeal in CCSF v. Post upheld San Francisco’s authority to expand these protections, and while many were confused by the decision (that acknowledged the State law’s field preemption, but let a city define the field), California soon followed suit and protected Section 8 tenants from housing discrimination at the state level.

These rules exist for a reason: not every landlord is enthusiastic about entering a contract with both their prospective tenant and the third-party government agency administering the tenant’s rent subsidy. Of course, you seem eager to explore this new group of applicants, and you have good reason. Vacancy rates are up. Rents are down. While voluntarily vacated units generally fetch market rates, rent control limits rent increases going forward. Aside from Prop. M’s vacancy tax, San Francisco landlords have a disincentive for landlords to set the price cap of their asset at the nadir of the rental housing market.

And yet the current market is a great reason to consider Section 8 tenants. Rent control establishes a “base rent” at the initial monthly price. The base rent increases at only 60% of our regional CPI until all “original occupants” vacate. (On day 1, tenants pay market rate, but many landlords lament the diminishing cash flow over time.) However, Section 8 rental rates are regulated by HUD (not San Francisco), and they track regional, fair market payment standards over time, not historic market prices fixed at the outset.

This protected revenue stream does come at a cost; Section 8 tenancies face higher scrutiny for habitability inspections. If a landlord fails an annual housing quality standard inspection by SFHA, no rent is owed until the defects are cured. (This could be something as trivial as a single broken stove burner or a single malfunctioning power outlet.) However, this higher standard may be a blessing in disguise. While exempt from rent control, other local tenant protections apply.

And while landlords are often surprised with liability to unhappy tenants (who may not have been forthcoming about issues with their housing), the public housing agencies’ frequent inspections (1) ensure that your housing accommodations remain safe and sanitary; (2) keep your tenants happy; (3) protect you from liability; and (4) ensure that you maintain market rate rental income. If your only applicants are Section 8 tenants, your choice is simple. But even if you have a field of candidates, the benefits of Section 8 tenancies during a pandemic will likely outweigh their increased administrative obligations.

—Justin A. Goodman