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Tenant/Renter Rights

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Tenant/Renter Rights

Apartment Fires: Who is Responsible for Tenant Safety?

Written By Chris Dolan and Anna Pantsulaya

This week’s question comes from Jill in San Francisco, who asks: This year I saw an apartment building surrounded by firefighters and fire trucks. A fire started on a top floor, and from my viewpoint, they had already put out the flames. I thought about my living space and how I should prepare if a fire broke out in my building. I live in an apartment on the third floor. I have done some preparation since all this happened. What laws should I know for fire preparedness? Would the owners be responsible for all tenants if a fire occurred? 

Hello Jill,

Thank you for your questions. Many safety standards are set to protect tenants from the situation you described. Understanding your rights in those circumstances is important to ensure that, in the unfortunate event a fire does break out, you are fully informed, and all standards were met by those that could be held responsible. Nearly 4000 Americans die yearly in house fires, and over 2000 are severely injured.

What are the safety standards to keep in mind?

In August 2016, the San Francisco Board of Supervisors passed legislation (Ordinance 163-16) to promote fire and life safety, reduce the risk of fires, and prevent property damage. The requirements include having building owners:

  • Provide residential tenants with updated Tenant Fire Safety Disclosure Information on fire safety and smoke alarm requirements,
  • post smoke and CO alarm information in common areas of their buildings,
  • file and post a Statement of Compliance form for annual fire alarm testing, and
  • post the building manager’s contact information at the building entry.

A great resource to check out before moving into an apartment in San Francisco is sanfrancisco.buildingeye.com/fire. This database keeps track of:

  • Fire Permits from 01/01/1983
  • Fire Complaints and Violations from 01/01/2010
  • Fire Inspections from 01/01/2014
  • Statement of Compliance (for required Apartment Buildings with Fire Alarm Systems)
  • Additional data available from SF Department of Building Inspection and SF Planning Department.

How can you determine who is responsible when a fire starts in your apartment?

Causes of house fires vary. For example, faulty appliances or wiring cause the most significant number of house fires; heating devices, such as heaters, wood stoves, and fireplaces, are another leading cause; cigarettes are a further leading source of house fires. Determining what caused the fire is instrumental in determining who can be held liable.

The landlord, property owner, or manager has responsibility for a fire or accident resulting from dangerous conditions such as faulty wiring or failing to follow the standards outlined in the California Code of Regulations. However, suppose the tenant caused the hazardous condition that results in the fire, i.e., from a burning candle or leaving a cigarette unattended. In that case, there may not be legal liability as to the landlord, the property owner, or manager unless the landlord breached their duty to ensure there are properly working smoke alarms on the property. In many cases, tenants have been seriously injured because they were not adequately warned of a fire. Additionally, it is important to remember that some rental leases may attempt to limit liability for dangerous incidents such as fires. Therefore, it is essential that you carefully review any lease before signing.

What are some common signs that your landlord breached his or her duty of care as it relates to a poorly maintained electrical system?

Faulty wiring is not only one of the leading causes of fires in the United States but also one of the most common examples of landlord negligence. Although the landlord must have the local fire authority inspect all multifamily residential apartment buildings, in the state of California consisting of three or more units and up to 15, every so often landlords do not comply with this requirement. Most buildings in San Francisco were built well before 1990. Older properties frequently have not been updated to comply with current building codes. Some properties still have aluminum wiring, a known fire hazard. While others, may have outdated electrical systems that are unable to handle modern electrical appliances. Additionally, fire safety inspections only go so far as to inspect the common areas. Therefore, it is important to keep an eye out for things like – outlets that do not work, breaker boxes that flip often, blown fuses, mild electrical shocks, dimmed or flickering lights, outlets that work sporadically, power surges, burning smells, hot fixtures or switches, and soot around switches or outlets. Document all issues arising from faulty wiring and be sure to let your landlord know immediately if you notice anything out of the ordinary. 

Although the landlord has a “reasonable time” to abate those issues, often they will ignore complaints unless and until they are required to handle them. In San Francisco, you can report your complaints and concerns online using the following link: https://sf-fire.org/services/report-complaints-concerns. This complaint will ensure that you not only put the landlord on notice of the issue, but you also notified the appropriate agency that will come out on your behalf and advise your landlord of what steps are appropriate and required to take to abate the issue.

Proving landlord negligence cases are not always easy. A skilled attorney will investigate the fire and employ experts to help prove that your landlord breached a duty that was owed to you. A full investigation of the cause of the fire may reveal other issues that your landlord may bear responsibility for as it relates to the fire.

What damages can you claim if a fire breaks out in your apartment at no fault of your own?

Landlord insurance is a form of liability insurance that pays for claims caused by landlord negligence. Various damages can be claimed depending on the degree to which the landlord was negligent and whether the fire caused property damage and injury. While landlord insurance is not required by law, it may be required by the landlord’s home insurance provider. If a landlord has tenants occupying their property for at least 30 continuous days, most homeowners insurance companies will require them to carry landlord insurance instead of homeowners insurance. 

Typically, you can recover the cost to replace lost or damaged personal property, the cost to restore the personal property, relocation expenses, additional living expenses, general damages for mental anguish,  and in some instances, punitive damages. Punitive damages are used to set an example of the landlord when their conduct is beyond that of garden variety negligence which is why it is essential to document everything. 

In many instances, an apartment fire causes injury. Burn victims are entitled to compensation for their past and future medical expenses, past and future lost wages, and pain and suffering. In catastrophic burn injury cases, the assistance of a life care planner may be necessary to compensate you for long-term medical problems fully. In the case of wrongful death, loved ones may be able to receive compensation for the loss.

Suppose you have been injured and sustained damages because of a fire. In that case, the landlord may claim the fire is not their responsibility or push you to his insurance company to negotiate a quick settlement. If you have been the victim of an apartment fire, you deserve to speak with an experienced attorney dedicated to maximizing your recovery. An experienced burn injury attorney is particularly essential in the event of injury, as burns often lead to long-term physical and mental harm such as scarring and PTSD. 

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California Tenants Are Still Protected from Evictions through September 30

Written By Christopher B. Dolan and Katelyn P. Dembowski

Gina from San Francisco asks: What is going to happen now that Congress failed to extend the eviction moratorium? What is California doing to protect tenants during this time? 

Dear Gina: These are really pressing questions. On September 4, 2020, the Centers for Disease Control and Prevention imposed a nationwide temporary federal moratorium on residential evictions for the nonpayment of rent. Legislatures in California had done this on a state level a few days prior, protecting California residents from eviction during the COVID-19 pandemic. The CDC federal eviction moratorium was set to expire on July 31, 2021. Congress failed to extend it, leaving millions of Americans vulnerable to evictions starting as early as August 1. 

Ultimately, House Democrats did not have the votes they needed to extend the moratorium, and Congress adjourned for a seven-week recess (they are expected to be back September 20).  The Biden administration is unable to extend the moratorium through executive action, citing a recent court ruling for their lack of power. The Supreme Court held, in a case by landlords against the federal government, that the CDC’s eviction moratorium was beyond their scope of authority as a federal agency. Unfortunately, the end of the eviction moratorium will leave roughly 3.6 million people in the U.S. on the brink of eviction in the next two months, according to the U.S. Census Bureau’s Household Pulse Survey. 

On June 28, 2021, California Governor Gavin Newsom signed AB 832 to extend the state’s eviction moratorium through September 30, 2021. This is the third, and likely final, time he has extended the eviction moratorium in California. 

In addition to extending the moratorium, the legislation cleared rent debt for low-income Californians who have suffered hardships during the pandemic. AB 832 will also cover 100% of past-due and prospective rent payments, as well as utility bills, for income-qualified tenants from April 2020 through September 2021.

Here’s how to protect yourself as the eviction moratorium comes to an end: 

  1. If your landlord gives you a notice to “pay or quit,” you cannot be evicted if you return a Declaration of COVID-19 Related Financial Distress. You must return the declaration to your landlord within 15 business days of receiving the notice to “pay or quit.” If you do not provide the signed declaration within 15 business days, an eviction proceeding may be filed against you. If you are unable to provide the declaration to your landlord within 15 business days, you may still submit the declaration to the court, provided you have “good reasons” for not providing it within the 15 days. This includes, but is not limited to, mistakes, inadvertence, surprise, or excusable neglect under the California Code of Civil Procedure. 
  2. Under AB 832, to be eligible for cleared rent debt, tenants must earn 80% or less of the area median income, which varies for each county within the state. To put that into perspective, San Francisco’s median income in 2019 was $96,265. You would need to earn $77,012 or less to qualify for the additional assistance through AB 832. 
  3. If you make more than the median income and are ineligible for rent debt clearance, you are still protected from eviction if you pay at least 25% of what you owe your landlord by September 30, 2021.
  4. If your household income is more than 130% of the median household income in your county or more than $100,000, your landlord may demand proof of your COVID-19 related hardships be provided to support your declaration. This could be satisfied by tax returns, pay stubs, statements from your employer, etc. 
  5. Until October 1, 2021, a landlord can only evict a tenant if they provide a legally valid reason. For example, you may still be evicted during the moratorium if you break your lease agreement, do something illegal on the property, or the landlord must do necessary renovations. The moratorium is only for past-due rent payments.

The extension of the eviction moratorium in California should give tenants some breathing room as the pandemic goes on. The surge in the COVID-19 Delta variant could potentially be as bad as when the pandemic started. While these are the guidelines in place right now, changes are happening every week, day, and hour, as we have seen throughout the pandemic. Stay safe and keep informed as we continue to navigate this pandemic together. 

***

Disclaimer: The COVID-19 (Coronavirus) outbreak is an ongoing, rapidly developing situation and the local, state, and federal responses are changing regularly. The Dolan Law Firm takes efforts to keep the information on this page updated, however, to guarantee up to date information it is necessary to confirm with publicly-available federal, state and local health organization guidance and government mandates.

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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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What Is The Law Regarding Rental Security Deposits

This week’s question comes from Maria in Fairfield who asks: “My mother rented an apartment on a month-to month basis. She gave the landlord first month, last month and two month’s security. She and the apartment manager had a dispute concerning my brother and his wife who came to stay for several days. They were noisy and upset the tenants. My mom had enough of her harassment and told the manager that she was going to move out.

She gave 30 days notice. She moved out before the thirty days and tried to schedule a walk-through to get her deposit back. The manager said that my mother could come back and clean the apartment and get her remaining items. The manager changed her position and told my mom she could not come back in to clean or get her things. She also said that she would not give my mother back her security deposit because there was a lot of damage. That’s not true.

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Don’t Be Overcharged on Your Rental Deposit

Before beginning this week’s column I want to thank the many readers who sent me get well wishes via the Internet as well as through personal notes. It is very heartwarming to me to not only know that people read this column but to think that they would take the time out of their day to wish me a speedy recovery. This includes my former neighbors in Forest Hill the Vukasin family, Vlaho, Yvonne, Michael and Peter.

I continue to convalesce though now I am out of the hospital, back home with my family, and returning to work well in a wheelchair. I thank God that my injuries are not more severe because, as a trial lawyer, I have the unfortunate experience of sitting across the table from people who have suffered even worse life altering, or life ending experiences.

My own collision and injuries deepen my passion and conviction to help those who find themselves in the situation through no fault of their own.I’m learning a lot about disability access, things you don’t think about until you are confinement in a wheelchair and have to make your way about in a world designed for those who walk. You can bet that some of my upcoming columns will address issues relating to disability rights. As I learn more I will share with each of you so that we can all understand our rights and responsibilities.

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Landlord Must Prove Deposit Deductions

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.
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