It’s Your Beeswax

written by VARIOUS AUTHORS

Q.One of our apartments has a bed bug infestation. We believe that the tenant brought them in. Who is responsible for remedying the situation?

A.You are entirely responsible for remedying the situation, period. It does not matter who you think brought the bed bugs in. You, as the housing provider, have the nondelegable duty to rid the rental housing of pests. In California, there is a strict duty to provide and maintain what is termed as “habitable” rental housing. This duty lies squarely with the owner and operator and cannot be passed onto the resident. This law has been on the books for more than fifty years and is increasingly strengthened by new local and state laws as well as court decisions. Indeed, the seminal case came out of San Francisco in the early 1970s.

This duty to deliver and maintain habitable housing may be summarized as follows:

• The building’s floors, walls, stairs, and roofs must be safe, operable, and intact. Roof leaks must be addressed and fixed as quickly as feasible.

• All building common areas, including stairways and hallways, must be kept in a safe and sanitary condition. Regularly check your exterior wood staircases for dry rot, and repair any rotten floorboards or railings immediately.

• All plumbing and electrical systems, including any elevators, as well as HVAC appliances must be safely operable. This means in San Francisco that there must be a permanent heat source capable of heating all habitable rooms to 70 degrees 24 hours per day. Space heaters are not safe and do not satisfy the heat requirement. If the elevator needs repairs, downtime should be minimized.

• There must be sufficient waste and recycling removal services. In San Francisco, there are mandatory composting and recycling rules; as such, please ensure that you have the correct bins available (blue for recycling, black for landfill, green for composting), and that all building residents have adequate space for reasonable weekly disposal of waste, composting, and recycling items.

• Both hot and cold water must be available. Check to ensure that the hot water heaters properly work. Please take precautions to prevent scalding water from being released, as that could cause serious injury especially to children.

• Exterminate infestations of rodents and other pests, including bed bugs. Yes, this obligation is part of the warranty of habitability and cannot be ignored or imparted onto your residents.

• Manage and, if necessary, remediate known hazards such as asbestos, lead paint, and mold so that they do not endanger the occupants.

The above list is not exhaustive. There may be other requirements depending upon local laws and the condition of the building. But there is a common theme here, which is this: The housing provider, not the resident, is cost responsible for full compliance. If there is an uncured breach of the warranty of habitability, the residents may not be responsible for rent and you may be liable for actual and punitive damages, as well as attorney fees incurred by the resident to compel compliance. In addition, the Rent Board might permanently reduce rent until the problems are fully rectified.

Lastly, some members of our industry have suggested holding the residents responsible for the repair or, in this instance, extermination costs if there is sound evidence that the defect or infestation was caused by the tenant. This author believes you may be able to pursue that remedy in small claims court. However, you as the owner/operator must still properly and expeditiously rectify the situation at your cost. Taking immediate action may not be dependent upon seeking or obtaining financial reimbursement.

—Dave Wasserman

Q.A retired tenant in my fourplex sweeps the patio and pathways each week. He just put potted plants around the building exterior and maintains them. It seems he enjoys it and I appreciate it, so we haven’t discussed it. He recently asked for compensation in the form of a small rent reduction. I’m happy to oblige, but don’t want this agreement to get me in trouble. Should I be wary?

A.This sounds like a charming relationship where an earnest old man is trying to make your building more beautiful, and it’s hard to imagine how this could go wrong. That said, I’ve imagined several ways this could go wrong.

First, is the rent reduction tied to a certain amount of labor? Is the rent still reduced if he misses a few weeks? What’s the base rent for purposes of the annual allowable increase? Is the rent still reduced if he can no longer do the work as he ages? If not, how do you restore the original contract rent? To what degree is he your agent? If he performs these tasks in a way that leads to injury (let’s say, pooling water causes someone to slip), should you have been supervising his activities? Preventing him from doing them negligently? Whose responsibility is it to replace the plants if they die?

While his chores are mostly about common area beautification, an expanded role down the road (particularly with matters relating to conventional property management, like if he helped show a vacant apartment while you were out of town) might lend itself to an argument that his relationship with you is governed by wage and labor law in addition to landlord-tenant law (and you’d find yourself trying to conform to both retroactively). If you ever want to remove the plants, does he now have the “housing service” of common area plants? And could you therefore lose both the gratuitous rent credit and the subjective value of the plants to his enjoyment of his tenancy?

As a practical matter, probably none of this would come to pass, and your tenant’s efforts would only enhance your property. If we always listened to lawyers worry about the worst that could happen, nothing could get done. But to minimize potential risk: Paying him to do the chores would be better than entangling it with his rental rate. The arrangement should be in writing and clearly defined (so you can end it if he isn’t fulfilling his promises). It should make clear that he has not paid additional rent to have potted plants, that he understands he has no control over common area, and that the existence of these potted plants are not a housing service.

Nothing in your proposal was bad; these things only go wrong when they go wrong, and you see the problems in retrospect. But the San Francisco residential tenancy is exceptionally tricky and difficult to unwind. The fewer roles get blended into it, the better.

—Justin A. Goodman