My heart, and those of the entire Bay Area, go out to the families and friends whose loved ones died at the Ghost Ship on December 2, 2016. The horrific inferno at the converted, two-story warehouse constitutes the deadliest structure blaze in California since the 1906 San Francisco earthquake and fire.
Sophie from South San Francisco writes: “I recently moved into an apartment and was taking the trash out at night. I didn’t realize, nor see because the overhead light was out, that there was a curb outside the rear door leading to the dumpster that had been built by the owner to keep the dumpster from rolling, I tripped, fell, and broke my ankle. Is my landlord at fault?”
This week’s question comes John K from South City who asks: “I recently bought my first home with my wife. We saw the ad for the house on line and went to an open house. We liked the house and asked the broker about the neighborhood because we wanted a safe, quiet, place to raise a family.
The broker said that it was a quiet neighborhood with older, retired neighbors. The agent acted as a “dual agent” which he said meant he could represent us both. We went through a lot of paperwork, got the loan, and then closed on the house.
After we moved in we started seeing a lot of traffic coming and going from next door. It turns out that they are selling drugs and may be running a meth lab. I spoke to the other neighbor next door and he said that this had been going on a long time and he had spoken with the broker about it. I feel ripped off, what can I do?”
This week’s question comes from Kimmie L: “Wet weather recently has led to the steps and stairs at my apartment entrance to be slippery. I fell and ended up at the emergency room. Is my landlord responsible?”
This week’s question comes from Richard H. in Berkeley who asks; “I am a Berkeley student and I was shocked and angry that those Irish students died in the balcony collapse. Much of the housing in Berkeley is old and decaying. I don’t know if that is the case with that building on Kittredge Street, it looked kind of new, who is legally responsible for a tragedy like that?”
Richard, my heart, and those of the entire Bay Area go out to the families of those who died, those who were injured, and those deeply affected by this senseless tragedy.
This week’s question comes from Tara P. in Hayward, who writes:
Q: “The weirdest thing happened recently. I had just bought a house out of foreclosure. I was working on the interior while living there. I went away for the night to a friend’s house. When I came home the next day after work, there was a circus tent covering my house. Seriously, a circus tent. Not only that, there were signs saying “stay back, toxic gasses in use.” My house had been fumigated while I was out! I didn’t ask for my house to be fumigated. I called the company and they said that it was my house that was supposed to be fumigated. I said no, and they read the address. They fumigated my house on an avenue when they were supposed to fumigate a house, with the same number, a couple blocks away on a court. They said that a real estate agent had paid for the fumigation. I am against the use of pesticides and chemicals. I told them to take the tent off my house but they said they couldn’t for three days until the chemicals dissipated. Thank God I had dropped my kitten off at the vet’s for boarding. They said that they didn’t have signed paperwork as the job was phoned in by a Realtor they have worked for before. I had to go to a hotel until my house was untarped three days later. I had to buy some work clothes and a pair of shoes as my clothes were all sealed up inside the tent. Since then I have thrown away all of the food in my pantry, sent my clothes to the cleaners and I am having a green company come in and do a top to bottom cleaning. I told the fumigators that I wanted to be compensated for this inconvenience and expense, they said that they were going to give me the fumigation for free. This is not acceptable. What rights do I have?”
A: Tara, what a shock! I will answer your question with the assumption that the fumigation contractor was licensed. Licensed fumigation contractors are bound by the regulations as stated in the Business and Professions Code. Contractors have an obligation to confirm the premises are vacant, as well as locked and barricaded, so that no one can enter during the period of fumigation. Fumigation must be done under the direct supervision of a licensed contractor. Direct supervision means that the license holder must be present at the site of the fumigation during the entire time the fumigants are being administered, the time ventilation is commenced, and at the time property is released for occupancy. The law requires that a fumigation contractor shall have in his possession a form, signed by the occupants of the property to be fumigated, verifying that the occupants have been informed of the nature of the fumigation including the fumigant(s) to be used, the active ingredient(s), have received the health cautionary statement required under the Business and Professions Code, been advised that a lethal gas will be used in the building on specified dates and that it is unsafe to return to the building until a certification for re-entry is posted, and that the occupants have been given the contact information for the main fumigating contractor.
These statutes are designed to protect the owners of homes being fumigated as well as their neighbors and members of the public. They are also designed to make sure the right house gets fumigated as there have been cases of death to people and animals because of improper fumigation. Given the company’s violation of the statutes requiring notification of owners, and confirmation of receipt of such warnings, the fumigation contractor is per se negligent and, therefore, liable for any reasonably foreseeable damages they have caused. Under the doctrine of negligence per se, the failure of a person to exercise due care is presumed if: a) the party violated a statute, ordinance or regulation (law) of a public entity; b) the violation proximately caused death or injury to person or property; c) the death or injury was of the type the law was designed to prevent; and d) the person suffering the death or injury was one of the class of persons for whose protection the law was adopted.
Here, they violated a law that was designed to protect people like you. It is foreseeable that people who have their houses fumigated involuntarily would have to stay elsewhere, and would chose to have their belongings cleaned of any residue. If you have an aversion to setting foot in the house, and feel it must be sold because of it being fumigated, a jury would have to decide whether such a decision is reasonable under the circumstances. At a minimum, the contractor should pay for your costs associated with lodging, cleaning, and replacement of food items, toiletries, etc.
I also suggest that you file a report with the Department of Consumer Affairs Structural Pest Control Board at (916) 561-8708. They can issue fines of up to $10,000. However, if the contractors, or their insurance company, refuse to reimburse you for your hotel, cleaning and other bills, then hire a trial lawyer to pursue them for both negligence and trespass.
This week’s question comes from Marylyn T who asks: “I am working in a state owned building that I believe is not ADA compliant. I have had 2 major foot surgeries over the last 18 months, and the facility has no elevator. I have had to walk up and down 19 concrete steps to access restrooms and break rooms, extending my healing time. I believe a state agency should be in compliance with the ADA law for both customers and employees.”
Dear Marylyn, you are 100% correct that state and local government entities have an obligation, pursuant to Titles II and III of the ADA, to provide accessible workplace facilities. In some limited instances, usually in private buildings, there may be exceptions or exemptions due to historical significance or because the age of the building. Some buildings, built before 1992 when the ADA went into effect, are granted exemptions because bringing the building in compliance may involve issues which may not be either “readily achievable” or “technically feasible.”
The American’s with Disabilities Act, was passed in 1992 and codified in 42 United States Code Section 12101 et. seq. (et. seq. means and following). Sections 12131 et. seq. contain what is referred to as Title II and Title III of the ADA which states that no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.
The requirements for accessibility compliance are determined by the type of facility, the ownership entity and the date of construction.
Most state owned and operated facilities and private commercial properties need to comply with the Americans with Disabilities Act Accessibility guidelines (ADAAG) and the requirements of the 2010 California Building Code (CBC).
Any building which has been constructed since 1992 has had to comply with the then current ADA regulations. These regulations have been incorporated in the California Building Code.
The Department of Justice published revised regulations for Titles II and III of the Americans with Disabilities Act of 1990 “ADA” in the Federal Register on September 15, 2010. These regulations adopted revised, enforceable accessibility standards called the 2010 ADA Standards for Accessible Design “2010 Standards” or “Standards”.
The 2010 Standards set minimum requirements – both scoping and technical — for newly designed and constructed or altered State and local government facilities, public accommodations, and commercial facilities to be readily accessible to and usable by individuals with disabilities. This includes the removal of any physical barriers to entering and using existing facilities when “readily achievable.”
Readily achievable means “easily accomplishable and able to be carried out without much difficulty or expense.” What is readily achievable will be determined on a case-by-case basis in light of the resources available.
Examples of barrier removal measures include: installing ramps, making curb cuts at sidewalks and entrances, rearranging tables, chairs, vending machines, display racks, and other furniture, widening doorways, installing grab bars in toilet stalls, and adding raised letters or braille to elevator control buttons. If the stairs prevent you from accessing vital areas such as meeting rooms, bathrooms, then barriers to you accessing these areas should be removed where feasible. Barrier removal measures must comply, when readily achievable, with the alterations requirements of the ADA Accessibility Guidelines. If compliance with the Guidelines is not readily achievable, other safe, readily achievable measures must be taken, such as installation of a slightly narrower door than would be required by the Guidelines.
As this is a state building, I would suggest that you go to the Equal Opportunity Compliance officer within the state agency that you work for. Hopefully they will facilitate improvement of the facility. If they will not, contact the Division of the State Architect which has jurisdiction over access compliance requirements for all buildings in California that are publicly-funded in whole or in part by the use of state funds. You also have the rights to file a discrimination lawsuit but I first recommend trying to resolve the problem without litigation.
Next week I will further discuss what accommodations you are entitled to as an employee under the Fair and Employment and Housing Act.
This week’s question comes from Jason M. In Pacific who asks; “A friend of mine and I were invited by a group of guys to go to a place in the central valley where you can do motocross on a fairly large piece of land. They have hills which people jump over and other features that make it a challenging course. Generally everyone knows to travel in one direction, counter clockwise. I have ridden there before without a problem. The last time I was nearly killed when someone was going the wrong way and slammed into me crushing my left leg and foot as we both rounded the same corner going in opposite directions. There is usually an arrow pointing the right direction at the entrance to the course from where people park Later I saw that one side had fallen so that it pointed up in the air. I have hundreds of thousands of dollars in medical bills. Do I have a case?”
Jason, as avid (former) motorcyclist who suffered a catastrophic injury myself, my heart goes out to you. Your question, like many, involves the interpretation of several intersecting areas of the law. You have not stated whether you were present on the land as an invited guest of the owner or someone renting the land and I don’t know if you paid anyone to use this area or not. As you will see below, this makes a critical difference as to whether or not the landowner/renter can be held labile for failing to provide adequate direction to riders to make sure that they all were traveling in the same direction.
If you were on public or private land, without paying any fee for use, then you may have no remedy as against the landowner based upon the “recreational use immunity statute” embodied in California Civil Code Section 846. This immunity was enshrined in law so as to promote the opening of private lands to the public for recreational purposes without the fear that lawsuits will arise for not safeguarding against all possible hazzards.
Section 846 states that “An owner of any estate or any other interest in real property (renter, owner, etc.), whether possessory or nonpossessory, owes no duty of care to keep the premises safe for entry or use by others for any recreational purpose or to give any warning of hazardous conditions, uses of, structures, or activities on those premises to persons entering for a recreational purpose, except as provided in this section.
A “recreational purpose,” as used in Section 846,” includes activities such as fishing, hunting, camping, water sports, hiking, spelunking, sport parachuting, riding, including animal riding, snowmobiling, and all other types of vehicular riding, rock collecting, sightseeing, picnicking, nature study, nature contacting, recreational gardening, gleaning, hang gliding, private noncommercial aviation activities, winter sports, and viewing or enjoying historical, archaeological, scenic, natural, or scientific sites.”
Section 846 states: “An owner of any estate or any other interest in real property, whether possessory or nonpossessory, who gives permission to another for entry or use for the above purpose upon the premises does not thereby (a) extend any assurance that the premises are safe for that purpose, or (b) constitute the person to whom permission has been granted the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by any act of the person to whom permission has been granted except as provided in this section.”
As is often the case, to every rule there are exceptions. Section 846 does not limit the liability which otherwise exists “(a) for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or (b) for injury suffered in any case where permission to enter for the above purpose was granted for a consideration (money or exchange of something of value) other than the consideration, if any, paid to said landowner by the state, or where consideration has been received from others for the same purpose; or (c) to any persons who are expressly invited rather than merely permitted to come upon the premises by the landowner.”
So, Jason, as to the owner or possessor of the land, if you were not invited (rather than permitted) to use the course by the owner or did not pay to use the course, or exchange some other valuable consideration, you may have no recourse against the landowner/possessor. This does not mean to say that you don’t have rights against the other biker for his/her negligence. That analysis too is exceptionally complicated so I suggest that you speak to a trial lawyer about your rights.
Back to answering questions. This week’s question comes from Bradley J. who has not specified where he hails from. When sending in your questions please make sure to identify what city and county you live in as the law changes from place to place. Bradley asks “how much can they charge for an initial security deposit and do they have to pay me interest?”
Pursuant to California Civil Code section 800.49 (a), any charge for a residential (meaning other than commercial rental) security deposit must be made on or before the initial occupancy. No additional security deposit can be demanded after said time. Pursuant to the same code section, generally, the maximum amount of the deposit may not, in addition to the first month rent, exceed two months’ rent charged. As with most everything that you read in this column, this rule is subject to certain exceptions. Each jurisdiction may have separate, independent, rules. Therefore, you should check with your local rental board to see if there any further restrictions on what may be charged. Different rules apply depending upon the length of the tendency and parties may make mutual agreements more or less of a security deposit. Additionally, for pets other than those which are required as guide or assistance animals, a landlord may ask for supplemental pet deposit.
As far as interest on the security deposit is concerned, Civil Code Section 800.49 (d) establishes the general rule that a landlord is not required to place a security deposit into an interest-bearing account nor are they required to pay interest on the security deposit to the tenant. San Francisco has strong pro-tenant Administrative Codes (local laws) which change this general rule. San Francisco Administrative Code Section 49.2 requires that a landlord must pay, either directly or in the form of a rent credit, an amount of interest set by the S.F. Residential Rent Stabilization and Arbitration Board (to be effective March 1 of each year) on all security deposits held for at least one year (except for government-subsidized housing units). The rent is calculated by the Rent Board based upon the Federal Reserve Six-Month’s Certificate of Deposit rate using an average of the 12 most recent monthly rates as posted by they Federal Reserve. For example, currently, the interest rate in effect for March 1, 2012 through February 28, 2013 is 0.4%. Pursuant to S.F. Admin Code section 49.2 (b) this accrued interest must be paid (or credit given) once year on the same month and a (commencing with the one-year anniversary date the deposit was first made).
So, Bradley, I hope this answers your question. If you live in San Francisco and are not being paid your annual interest on your security deposit contact the Residential Rent Stabilization and Arbitration Board. They cannot only answer a question spoke to serve as a vehicle to help you to enforce your rights. Until next week, be safe and be careful and look out for one another.
Christopher B. Dolan was recently involved in a serious motorcycle collision leading to a broken pelvis and shattered upper arm, both of which were operated on last week. So this week’s column is written by one of Dolan’s professional colleagues (and trial team leaders), Greg Schaffer, who focuses primarily on personal injury matters.
Our Question is from Anne C. in Bernal Heights:
Return of a tenant’s security deposit is covered by Civil Code section 1950.5. The security deposit is the property of the tenant, and sums can only be withheld for items described under 1950.5. These items include: 1) to remedy a tenant’s unpaid rent, 2) to repair damage, 3) to clean the unit, and 4) to restore, replace or return personal property. The deposit cannot be used to repair damages for “ordinary wear and tear” that occurred during the tenant’s term, or to repair any damage that pre-existed the tenancy.
At the outset of the tenancy there is no statutory requirement for the landlord to conduct a pre-lease or move-in inspection for damage and deterioration to the unit. Therefore, it is incumbent on tenants to protect themselves with an eye toward the end of the tenancy. Prior to moving in, the tenant should request a joint walk-through of the unit. The condition of fixtures, appliances, walls and carpet should be inspected with noticeable defects and damage itemized in writing. The tenant should take photographs of the condition of the unit and any damage. If the landlord agrees to remedy or repair apparent defects, the tenant should also document this in writing. An email to the landlord documenting the findings of the move-in inspection is sufficient. If the landlord fails to attend a joint walk-through, the tenant should conduct their own inspection and document damage.
Once the landlord or tenant has given notice to terminate the tenancy, the landlord is required to give the tenant written notice of the tenant’s right to request an “initial” inspection of the unit for damage.
The tenant must then request the initial inspection. After the initial inspection, the landlord must give the tenant an itemized statement specifying the necessary repairs and cleaning and the basis for any proposed deductions from the security deposit. The tenant then has the opportunity to remedy the identified deficiencies “in a manner consistent with the rights and obligations of the parties under the rental agreement” to avoid deductions from the deposit. The landlord may use the deposit only for items in the initial inspection statement that were not cured by the tenant. Of course, the landlord can make deductions for any damage that occurs after the initial inspection and before the end of the tenancy.
With or without the initial inspection, the landlord must provide an itemized statement and a refund check for the remainder of the deposit no later than twenty-one days after tenant’s vacates. The statement must indicate the basis for any amounts deducted from security deposit. If the landlord fails to provide these two items within twenty-one days, the landlord forfeits the right to retain any portion of the deposit. The landlord must return the entire deposit to the tenant and attempt recovery for damage in a subsequent judicial proceeding. If the landlord retains the deposit in “bad faith,” the landlord may be subject to statutory damages of up to twice the amount, in addition to any actual damages the tenant has suffered.