6 minute read
Open-Door Policy
written by VARIOUS AUTHORS
Q.A tenant is refusing to allow me entry for annual routine upkeep. If the smoke alarms are faulty, can I be held liable?
A.I frequently hear from residential rental property owners and my own clients about “routine inspections” or “annual inspections” or “Fire/ Smoke and/or CO2 Alarm inspections,” etc. While I appreciate that some written rental agreements commonly used in San Francisco and immediate Bay Area locales may include language allowing these types of inspections, it is important to understand the notice protocol associated with inspections, especially (1) if your written rental agreement with the tenant does NOT include language allowing for the “routine inspection” and (2) a tenant refuses entry with your notice—formal or otherwise—of the need for a “Routine Inspection.”
Thus, while many landlords may claim a right to enter a tenant’s unit by providing written notice of a “Routine Annual Inspection” with a future date and time identified, unless—or even with—a written lease provision allowing for same, such an inspection is not allowed by law and a tenant may lawfully negate entry.
Section 1542 of the California Civil Code reflects only six reasons for entry by a landlord:
• To make necessary or agreed repairs, decorations alterations, improvements;
• To supply necessary or agreed services;
• To exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors;
• To make an inspection pursuant to subdivision (f) of Section 1950.5 (i.e. sec. deposit inspection);
• When the tenant has abandoned or surrendered the premises;
• Pursuant to court order.
A written Notice of Entry is best hand-delivered to the premises. Place it in the hands of the tenant or other occupant over the age of eighteen. If the notice is provided to an occupant (non-tenant), I also suggest it be posted on the premises door at eye level. I recommend you take a photo of the door posting as well. This confirms formal lawful Notice under the law. Please feel free to send a courtesy copy to the tenant via email, but an email alone does not satisfy the requirements of proper notice under the Civil Code.
Entry for Reasons 4, 5 and 6 listed above are (relatively) self-evident. The trickier and more common reasons for most owners are Reasons 1, 2 and 3. Note that “routine or annual inspection” is not listed.
Section 35 of the SFAA lease has a particular provision for smoke/fire alarms. Due to the recent changes in the law requiring sound alarm systems to reach sleeping rooms in each unit in case of fire, it is imperative that smoke alarms are inspected as they may assist in triggering the sounding fire alarm system of for the entire property.
If you have PROPERLY NOTICED the tenant that the reason for entry is “make necessary repairs to…or supply necessary service to the smoke/fire alarm as part of the Fire Alarm system of the property” (note the use of the necessary language of Reasons 1 and 2 of the Civil Code) a and the tenant has refused, you may be on your way to effectuating a termination of tenancy. And if you intend to inspect with a contractor fire alarm installation contractor or some other appropriate third party worker or contractor, I suggest you incorporate the language of Reason #3 in the Notice of Entry.
Section 37.9(a)(6)of the San Francisco Administrative Code – aka the San Francisco Rent Ordinance—reflects the following as a Just Cause reason for tenancy termination: “The tenant has, after written notice to cease, refused the landlord access to the unit as required by law.”
I am not advocating for the termination of the tenancy. However, a tenant must provide “lawful entry as required by law” to a landlord. A tenant’s refusal of entry based on a properly prepared and served Notice in compliance with Civil Code 1542 is not allowed.
Termination of tenancy due to a tenant’s refusal to allow entry to check fire alarms is an extreme step and a cumbersome process. Landlords are advised to seek counsel should this event transpire.
Note that termination of tenancy is not the goal: proper entry to confirm working fire/smoke alarms is the goal. A landlord denied entry in response to a lawful entry request to a tenant should immediately follow up with written communication that denial of entry is not allowed. You should work with counsel in this event. In communication from counsel, a warning that denial of lawful entry is grounds for tenancy termination. I suggest you work with counsel to property re-notice the tenant for a second attempt at entry. My experience has always been that entry is then provided.
A landlord’s duty is to provide safe and habitable premises. Taking the necessary steps to inspect and confirm the safe working order of smoke and fire alarms is one of those duties. To be prevented from doing so due to a tenant’s misdeeds may “shift the burden” of liability to a tenant, but the landlord’s action in response must be reasonable.
Were the smoke/fire alarms faulty? If the smoke alarms are somehow inherently faulty, was it due to the tenant’s actions? We do not know. However, it is reasonable for a landlord to “go the extra mile” with tenants refusing entry. Whether or not the landlord is held liable, I suspect a claim against the landlord may be brought, triggering the fire insurance coverage should a fire occur resulting in personal injury or property damage. The cause may ultimately be sorted out via inspections, investigations, etc., as to who, if anyone, is liable.
As a “landlord attorney,” my very strong recommendation is that the owners or owners’ property managers physically inspect each unit under management routinely. One of the best assessments of a unit’s condition is a personal, physical inspection. While physical presence in an occupied unit was difficult or impossible during the pandemic “lock down,” it should no longer be a factor in most cases.
Viewing with your own eyes the condition of a tenant’s unit with peeling paint, a “water-dripping” light fixture, hoarding behavior leading to the need for pest control, etc., may be the result of the inspection. However, on another day, your view of pristine cleanliness, and respectful “first class upkeep” may also be your experience, which can be very rewarding for all your hard work, worry, and investment.
—Denise Leadbetter
Q. I was never able to get a tenant to participate in any rental assistance programs throughout the pandemic. Is it too late to obtain funds?
A.It is not too late. In fact, effective March of 2023, a local City-funded rental assistance program is covering rents that accrued during the past three years. The various rental assistance agencies have differing criteria as to who qualifies for what amounts, but all housing operators with unpaid rent from existing tenancies are urged to seek cooperation from their residents to complete and submit rent relief applications.
The largest program, SF Emergency Rental Assistance Program, or ERAP, sf.gov/information/sf-erap-frequently-askedquestions, is currently open and “is a community-based program aimed at keeping the City’s most at-risk tenants in their homes as part of the City and County of San Francisco’s eviction prevention and housing stabilization efforts.” To that end, most if not all rental assistance programs will pay to keep residents housed. If your tenant has left owing you money, you may have to go to small claims court to recover it.
The other question many housing providers are currently facing is whether they can, or should, invoke the unlawful detainer (UD) or eviction processes as to those tenants that have rental debt that has accrued during these past three-plus years. For starters, you may never bring a UD regarding rental debt that is over twelve months old, so anything that accrued during the first two-plus years of the pandemic is no longer eligible for a UD action. Secondly, as many of you have heard, a tenant may assert as a defense in any UD proceeding for nonpayment of rent that COVID/pandemic induced hardships prevented the tenant from being able to pay rent. As such, while there is technically no “eviction moratorium” in San Francisco, the pandemic economic hardship defense may be asserted for rent that accrued from July 2022 through at least July of 2023. Therefore, this author advises SFAA members to make every meaningful attempt to negotiate, work with, and otherwise settle with your residents without having to resort to UD litigation. Simply put, this is not the time to be rushing to court, as there are better alternatives.
So please encourage your residents that owe rent to apply now to the various rental assistance agencies, including ERAP. If the tenant no longer lives in your building, you may have to visit small claims court where, incidentally, there are no jurisdictional limits for residential rents at this time, meaning you can bring a case for as much rent as is owed. As for the UD process, make this your last resort. Tenants may still avoid evictions for unpaid rent if they show that the pandemic caused them economic hardship and thus an inability to pay. Furthermore, even if you do have to file a UD, your case will likely settle prior to trial usually under the following guidelines: (i) the resident stays, agrees to a repayment plan, and completes all applications to available rent relief programs; (ii) the resident leaves with some or all of the unpaid rent being forgiven; and/or (iii) a combination of (i) and (ii) above.
—Dave Wasserman