Understanding your lease agreement

This week’s question comes from a concerned parent in south Marin, who asks,

Q: “My daughter and four roommates have lived in a two-bedroom apartment in San Francisco for the past two years. When they first moved in, they agreed with the landlord that they would be billed monthly for the water bill. It did not say so in the lease, however. As the year went on, they were never billed even though they asked him repeatedly for it via email.  Now, two years later, he is demanding the racked-up $1,000+ water bill for August 2017 through July 2018 to be paid with their rent check for June 1st. Is this legal? How should they handle this situation?”
A: Dear Concerned Parent, It is difficult to answer this question without the benefit of reviewing the lease document. However, I will answer generally with my understanding drawn from seeing numerous lease agreements as both a renter and landlord.

The rental of an apartment is a contractual arrangement, comprising a landlord’s offer to lease under specific terms and a tenant’s acceptance of those terms. California Civil Code § 1941.1(a)(3) dictates that the landlord bears responsibility to render an apartment habitable by providing water facilities meeting specific regulatory criteria. Generally, a lease agreement includes provisions pertaining to payment for utilities provided, so I would first suggest that you look at the lease to see what, if anything, it says about utilities and which party bears the expense for them.

Next, you should look toward the end of the lease agreement to see if it has an “merger” or “integration” clause, which would look something like this: “This Agreement contains the entire agreement between the Parties to this Agreement and supersedes any and all prior agreements, understandings, representations, and statements between the Parties, whether oral or written, and whether by a Party or such Party’s legal counsel. The Parties are entering into this Agreement based solely on the representations and warranties herein and not based on any promises, representations, and/or warranties not found herein. No modification, waiver, amendment, discharge, or change of this Agreement shall be valid unless the same is in writing.” These types of clauses are standard in most contracts, including lease agreements, and indicate the parties’ agreement that the contract’s only enforceable provisions are those set forth within the “four corners” of the document, including any addendums or modifications signed by all contracting parties.

Therefore, if your daughter’s lease agreement includes a merger clause and does not include any specific provision for water payments, she can make a strong argument that any oral agreement to pay water bills, outside the four corners of the lease, is unenforceable.

If the lease document contains no merger clause, however, the landlord could argue that an oral contract existed requiring the tenants to pay for water on a monthly basis and point to the roommates’ emails asking for the water bills to demonstrate the nature, existence, and/or terms of that contract. In this scenario, your daughter could still raise a “waiver of rights” defense to the landlord’s claim. Parties to a contract may waive certain contractual rights by not acting upon them. Here, your daughter could argue that her landlord, having not presented any monthly bills in the past two years, has waived any right to demand payment for that bill now.

Your daughter could bolster this waiver argument by citing to California Civil Code § 1954.205, Bill for water service; calculation; inclusion of other lawful charges, which sets forth the law regarding landlords billing for water services. The following relevant parts would apply here: “(a) As part of the regular bill for water service, a landlord shall only bill a tenant for the following water service: (1) A charge for volumetric usage, which may be calculated in any the following ways: (A) The amount shall be calculated by first determining the proportion of the tenant’s usage, as shown by the submeter, to the total usage as shown by the water purveyor’s billing. The dollar amount billed to the tenant for usage shall be in that same proportion to the dollar amount for usage shown by the water purveyor’s billing. . . . (a) Submeters shall be read within three days of the same point in each billing cycle. (b) Payments shall be due at the same point in each billing cycle.” If your daughter can show that her landlord failed to read the submeters (if any) regularly and provide the bill as required, this evidence would further substantiate an argument that he waived his contractual right to demand payment of the water bills.

I hope this helps you, your daughter, and her roommates. If the landlord doesn’t back down, I suggest that she consult the San Francisco Tenant’s Union for more advice at www.sftu.org.   

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Landowners Have an Obligation to Address ‘Blighted’ Conditions

This week’s question comes from Jim J. in the Excelsior, who asks:

Q: “My neighbor died. She was such a nice lady. I miss her and I also miss how she used to care for her yard. Her son inherited the place, he was never any good to her and was always trouble growing up. He hasn’t gotten any better with age. Since he moved in, he has been “collecting things” — mostly old cars but also tires, rims and other auto parts. He uses the garage to fix up old cars that he then sells. Most of the junk just stays there and rusts. It’s a scrap yard. Weeds are growing, and I have seen rats running in and out. It’s disgusting. What can I do about it?”

A: Dear Jim, you have a right to expect that your neighbor will keep their property reasonably clean. The conditions you referred to are commonly known as “blight,” and San Francisco has an ordinance — called the Community Preservation and Blight Reduction Act, contained within the Administrative Code — that codifies the responsibilities of a landowner to maintain their property.

The Board of Supervisors determined blighted properties are those that are in a condition of significant deterioration or disrepair, attract vagrants, gang members and other criminal elements as prime locations to conduct their illegal criminal activities, cause general deterioration and instability and substantially endanger the health and safety of residents of the blighted properties and of the surrounding neighborhoods. The Department of Public Works is empowered to issue notices of violation and take action to remedy blighted properties under the doctrine of nuisance.

The presence of any accumulation of filth, garbage, decaying animal or vegetable matter, waste paper, hay, grass, straw, weeds, vegetation overgrowth, litter, trash, cigarette or cigar butts, unsanitary debris, waste material, animal or human excrement is a nuisance prohibited under law. Likewise, “overgrown, dead or decayed trees, weeds or other vegetation, rank growth, rubbish, junk, garbage, litter, debris, flyers or circulars” are recognized as a fire hazards and conditions that promote the spread of vermin.

As to the “scrap yard,” the Administrative Code specifically identifies any property that contains, in the outdoor area, any refrigerator, washing machine, sink, stove, heater, boiler, tank or any other household equipment, machinery, furniture, or item, appliance or appliances as being blighted.

Whenever the director of DPW determines that a property is blighted, he or she may require or take any necessary abatement or other enforcement actions to cause the property blight to be abated. The director, or his or her appointee, can inspect the property and require the owner to pay for a property inspection fee of up to $250. DPW can also issue an abatement order requiring the landowner to address the issues, as soon as possible, and no later than 15 days after notice of the violation, although they can apply for an extension. A person cited also can request a hearing challenging the citation in front of an administrative law judge.

The DPW director can file a notice of abatement against the title of a delinquent property owner. If the owner fails to abate the nuisance, the director can order DPW to do so and then place a lien on the landowners’ property. A lien is a notice filed in the County Recorder’s Office against the title that indicates a debt is owed to The City for the costs associated with the abatement. Upon sale or transfer of the property, The City must be paid in order to secure clear title.

Jim, I suggest you contact DPW either by dialing 311 or by going to the sf311.org website. Search “blight” and request that they come out and inspect the property. Hopefully, they will do so, serve a citation and cause the neighbor to abate the nuisance. In case DPW fails to take action, you, as an owner affected by the blight, can request an injunction in San Francisco Superior Court.

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Skateboard-Friendly Zones in S.F.

This week’s question comes from Anthony T. in Bernal Heights, who asks:

Q: “I am a skateboarder, not a criminal! I use my skateboard as a way of getting around because Uber is expensive, because busses are slow and I live on a hill. It’s fun and good for the environment, right? I was skateboarding down the sidewalk on my way down Market to meet a friend to board a bit in Justin Herman Plaza. Some guard at one of the office buildings said I couldn’t board on the sidewalk or in the plaza. I told him it was a free country and he should mind his own business. He said he was going to call the cops and we saw a cruiser coming up so we split. Can I get busted for skateboarding?”

A: Anthony, I have unfortunately learned about skateboarding law through the misfortune of my clients. We have represented dozens of skateboarders who have been hit by cars, trucks, motorcycles and bicycles. Because skateboards have no lights they are especially vulnerable (and illegal) when ridden at night. Personal injuries on skateboards are often very severe, with head injuries and broken upper extremity (arms, legs, shoulders) being the most common injuries we see.

San Francisco has its own transportation Code provision governing skateboarding within The City. Under San Francisco Transportation Code Section 7.2.13, “Non-Motorized User Propelled Vehicles (NUV),” it is prohibited to ride a skateboard upon any sidewalk in any “business district” within the City. It is also unlawful to ride a skateboard on the city streets within any “business district.” The SFGOV website describes the downtown Financial District as follows: The area is bounded roughly by Market Street to the south, the San Francisco Bay to the east, Chinatown and Taylor Street to the west, and Bush Street (between Taylor and Kearny) and Washington Street (between Kearny and the Bay) to the north. There is no reference to other “business districts” on the SFGOV website, but I believe that the term might be broadly interpreted to cover commercial streets like Union, Clement, Valencia and other areas with high commercial density. This is a matter open to interpretation and potentially legal determination, but the sidewalk along Market Street to Justin Herman Plaza is very likely to be considered within a “business district.”

There are several other locations where skateboarding is prohibited by state and municipal laws. California law prohibits the riding of a skateboard inside any transit facility such as Muni Underground, Bart, CalTrain, etc. stations. San Francisco Municipal Codes further prohibit skateboarding in: any Park or Plaza within the city except where expressly permitted (Administrative Code Chapter 94); Yerba Buena Gardens and the new Transbay Rooftop Deck (Park Code Article 11); South Beach Park, Rincon Park, or any Port park located within the Mission Bay North or Mission Bay South Redevelopment Plan Areas (Port Code Article 7); the Japanese Tea Garden, the Arboretum and Conservatory Valley areas of Golden Gate Park (Park Code Article 3). Pursuant to these regulations, skateboarding is prohibited in Justin Herman Plaza, where you were planning to “board.”

Skateboarding in restricted areas may be punishable by a fine not to exceed $250 and by community service for a total time not to exceed 48 hours over a period not to exceed 30 days, during a time other than during the violator’s hours of school attendance or employment.

You are legally allowed to ride a skateboard outside of these proscribed areas, so long as you do not ride on the sidewalk between the following time periods: ½ hour after sunset to ½ hour before sunrise. When riding a skateboard during daylight hours, you must ride in the same direction as traffic and you must yield to pedestrians or bicyclists approaching from any sidewalk within a marked or unmarked crosswalk. Transportation Code Section 7.2.13(b)(3) also requires skateboarders to yield “to any bicyclist or motor vehicle approaching on the street.” Therefore, if you are riding in an area permitted for bicyclists, motor vehicles or pedestrians, the law requires you to yield to them.

While skateboarding you are always prohibited from wearing earplugs, headphones or headsets, and you cannot carry any object that impairs your vision in any direction. Pursuant to California Vehicle Code Section 21212, children under the age of 16 must wear a helmet when skateboarding or face a $25.00 fine for non-compliance.

Despite all of these restrictions, a skateboarder injured by the fault of another is not without recourse. California personal injury laws hold drivers responsible for harms caused by their negligent acts. However violation of any skateboarding regulations may be considered comparative fault in a legal proceeding, thereby reducing any amount you may be entitled to recover by your percentage of fault.

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Kayakers Citing Failure Of Da To Properly Charge Drunken Boater Sue For Catastrophic Injuries Caused By Propeller

FOR IMMEDIATE RELEASE

KAYAKERS CITING FAILURE OF DA TO PROPERLY CHARGE DRUNKEN BOATER SUE FOR CATASTROPHIC INJURIES CAUSED BY PROPELLER

Press Conference Friday May 10, 2019 at 9:30 a.m.
Dolan Law Firm, 1438 Market Street

On October 28, 2018, at approximately 4:00 p.m., a ski boat driven by San Mateo Attorney, Stephen Andrew Chiari, ran over 15-year-old Francesco (Chicco) Adamo as he was kayaking with his father Filippo in the Marina Lagoon in San Mateo, California. Chiari, operating a ski boat in the lagoon, was under the influence at the time of the collision and was arrested for reckless operation of a boat and operating a boat while intoxicated with injury. Before becoming a lawyer, Chiari served as a police officer for the City of Oakland for 13 years. Chiari is scheduled to be arraigned on 8:30 a.m. Monday May 13, 2019, before Judge Amarra Lee in Department 19, Courtroom L, at the San Mateo County Courthouse – Northern Branch, located at 1050 Mission Road, in South San Francisco, California. A civil lawsuit is being filed Friday May 10th alleging battery and drunken boating causing great bodily harm.

The crash resulted in the propeller inflicting life threatening wounds to Francesco’s skull, lungs, spine, chest and the base of his brain. Francesco’s father Filippo stated, “I was screaming to them to watch out, watch out, trying to alert them to my son, but they just sped into him and the next thing I knew he was in the water, face down, with blood everywhere. I thought my son was dead. When we pulled him from the water, he was lifeless and not breathing. I gave CPR and tried to care for him the best I could until the Ambulance came and took him to Stanford. I went with him, wet to the bone, praying my son wouldn’t die.” At the Stanford University Trauma Center, dozens of specialists, including trauma, orthopedic and neurosurgeons, operated feverishly to save his life. Chief of Pediatric Neurosurgery, Gerald Grant MD is quoted as saying “I felt like I was back in the military operating theater in Iraq since Chicco’s injuries were so severe.” https://www.stanfordchildrens.org/en/service/trauma/stories/francesco-adamo

After six months of no action, the San Mateo County District Attorney’s office has told Francesco’s family that they will not be charging Chiari with a felony but, instead, with two misdemeanors: operation under the influence and reckless or negligent operation of a boat. Debra Scott, Francesco’s mother stated “We have waited over 6 months for the District Attorney to act. This case has been bounced around from Assistant DA to Assistant DA as a low priority for over six months. To now learn that the DA is only charging this man with a misdemeanor is offensive and unacceptable. My son was shredded and nearly killed by this man’s boat as he sped along a recreational waterway while intoxicated and he is going to be charged with a misdemeanor! Is he getting a pass because he used to be a cop? We demand that the DA charge him with the felony of operation of a boat under the influence of alcohol causing great bodily injury.” “With boating season coming back upon us the DA needs to decisively state that drinking and boating will not be tolerated and will be prosecuted to the fullest extent.”

Francesco’s parents will describe the traumatic events of October 28, his treatment and recovery, their dissatisfaction with the DA’s handling of the case and their call for a felony charge to be prosecuted. There will also be a discussion of the civil lawsuit filed against Chiari. Copies of the suit, as well as photos of the injuries sustained by Francesco will be distributed.For further information call Chris Dolan at 415-279-2604 or by email at chris@dolanlawfirm.com.

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Closing Loopholes That Allow Bike, Scooter Rental Companies to Skirt Liability

Jump Electric Bike (owned by Uber) and Lyft Escooter parked side by side on the sidewalk.

This week’s column is about personal mobility devices: bikes, scooters and other transportation products available for rent through apps, and which we see littered around the Bay Area. In this column, I will answer a reader’s question and share information I have gathered while fighting to pass bills in Sacramento to require personal mobility device providers to carry insurance on the devices and prohibit contract clauses that allow these companies to escape liability for their own negligence.

Harold G. from San Francisco asks:

Q: “I was reading in The Examiner that one of Uber’s JUMP Bikes caused injury to a rider because after he applied the brakes and the bike stopped suddenly and threw him off. (See “Uber failed to tell riders about faulty bike breaks,” published April 17, 2019) The article said that Lyft’s Go Bikes also have defective brakes that have caused injury, but Lyft publicly announced the defect while Uber apparently tried to fly under the radar by removing the bikes from the streets quietly. Isn’t the company automatically responsible if its bikes fail like this and cause injury?”

A: Harold, it would indeed seem to be that simple but, alas, it is not. When you “click to accept” you are entering into a binding contract, despite the fact that most people never bother to read its lengthy provisions. Uber, Lyft and other providers have inserted “assumption of the risk” agreements and “release and waiver of liability” clauses within their “click to accept” contracts in order to deprive customers of their ordinary legal rights and allow these big corporations to effectively escape accountability for their dangerous products. In the recent cases of defective brakes, it would not surprise me in the least if Lyft and Uber claim immunity from liability by citing these clauses.

“Assumption of the risk” clauses state that a user recognizes the inherent dangers in an activity and accepts the risk of injury or death from engaging in that activity. If you have ever been skiing, you have most likely signed an assumption of the risk clause exempting the mountain from any injury you sustain while skiing, including if you ski into a tree, hidden object, other skier, etc. Many “outdoor adventure” activities like parasailing, skydiving, horseback rentals, etc., also have such clauses to relieve rental providers from liability for risks inherent to and associated with the sports. The law prohibits “assumption of the risk agreements” from exempting providers from liability for willful or grossly negligent acts.

A shameful difference in the clauses included in many new personal mobility device contracts is a further exemption from liability for injuries caused by defective products. This not only demonstrates lack of care for customers’ safety, but it also creates a “moral hazard,” giving device manufacturers and providers reduced incentive to ensure their products are safe. “Release and waiver of responsibility” clauses are similarly designed to totally exempt rental providers from any liability whatsoever from every imaginable scenario where, under general application of law, they would be subject to legal action for the harms they cause. Instead of responsibly maintaining insurance on the devices, the cost of which could be passed on as a small fee across all customers, these companies instead choose to push all medical bills, lost wages, and damages for pain, loss of function, or even death onto individual injured parties.

That’s right, these rental contracts provide that, even if a device provider are negligent (e.g. by putting a dangerous bike in the rental stream), the rider has agreed to shoulder legal responsibility for the injuries caused. Not only that, but the contracts exempt themselves from judicial review and take away a customer’s right to a public jury trial, requiring instead that the matter be handled through private arbitration, using a private judge and secret proceedings. As a result, not only does the injured party lose access to ordinary legal remedies, but the public at large is kept in the dark about the dangers of these devices and the harms they cause.

It is for this very reason that I am championing AB 1286, a bill introduced by California Assemblymember Muratsuchi and sponsored by the Consumer Attorneys of California, which would preclude these companies from including “assumption of the risk” and “release and waiver of responsibility” provisions in their “click to accept” agreements. I have now testified twice on this bill against the opposition of Lyft, Uber, the California Chamber of Commerce and the technology sector. I successfully fought for consumers’ safety when Uber and Lyft refused to take responsibility for carnage caused by drivers employed by their rideshare services; I hope I will be successful again. In the meantime, please call Muratsuchi (916) 319-2066) and state your support for AB 1286 and objection to these waivers.

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