California Civil Code section 1953 states “any provisions of a lease or rental agreement that of a dwelling by which the lessee (the tenant) agrees to modify or waive any of the following rights shall be void as contrary to public policy . . . [¶] His procedural rights in litigation . . .” This means a tenant cannot waive in advance the right to have a jury trial when he signs her lease. The law was interpreted in a case where the Jaramillos, who were tenants, sued their landlord and the property management company for housing code violations, among other things. The landlord asked the court to enforce a clause in their lease that stated that all disputes had to be arbitrated. The court of appeal noted the weaker bargaining position of tenants as compared to landlords in holding that the arbitration clause could not be enforced. The court said that no law prevents tenants and landlords from entering into an independent agreement that is separate from the rental agreement.

There is another law in California that seems to allow landlords to force tenants into binding arbitration when tenants sign the rental agreement. Civil Code section 1942.1 provides that landlords and tenants may agree in writing to arbitration concerning habitability violations. The court of appeal in the case discussed above examined the conflict of the two laws but did not come to any conclusion. The prudent tenant should be wary and seek legal advice before agreeing to sign away her right to a jury trial. Arbitration can be very expensive and the arbitrator’s decision can only be challenged in court for extremely limited procedural reasons.

The tenant must give the landlord a ‘reasonable time’ to make the repairs. The law states that 30 days is generally considered a reasonable time. However, the law allows for a shorter time for the tenant to make repairs and then deduct the cost of repairs from the rent if all the circumstances justify it. For instance, a tenant should not have to wait 30 days to call a plumber if the water main to the tenants’ unit is broken and she has no water.

The law also states that the tenant could use the ‘repair and deduct’ remedy only to make repairs when the repair cost does not exceed one month’s rent. It is unclear if the tenant can deduct from successive months if the repair is more than the rent. To be on the safe side, I counsel tenants to send the landlord an estimate of the repair along with their letter of the need for repair. That way, the landlord is on notice and might even send over a repair person himself. The law does not allow tenants to make repairs and then deduct rent more than twice within a 12-month period.

Withholding rent in order to make repairs can lead to a Three Day Notice and an unlawful detainer. The prudent tenant should consult with a tenant’s attorney before taking this action.

According to the Rent Ordinance, when the original occupant no longer lives in the apartment, the landlord may raise the rent on the subtenant. San Francisco Rent Ordinance Rules and Regulations section 6.14 states the landlord’s written notice must state that when the original occupant vacates the unit, a new tenancy is created. The landlord is allowed, under the Rent Ordinance, to raise the rent to market and create a new tenancy with the subtenants. However, the rent can only be raised if the landlord sends a subtenant a written notice.

The landlord is not required to petition the San Francisco Rent Board for approval of a rent increase under section 6.14. The tenant may file a petition alleging an unlawful rent increase if she believes that a rent increase under Section 6.14 is not allowed. If the landlord does not serve the section 6.14 notice within 60 days of learning about new tenants in the unit, then there is a presumption that the notice was not timely sent. This presumption can be rebutted by the landlord at the Rent Board.

I have seen section 6.14 notices stating the landlord will have the option of recovering the unit from any remaining occupants. However, this language is not in the San Francisco Rent Ordinance Rules and Regulations. There is no “just cause” eviction for being a subtenant in a unit when the original tenant leaves the unit.

In 2010, the landlord served the tenant with a 90-day notice terminating her lease. The tenant’s lease was being terminated for “good cause” because of “business and economic reasons.” The landlord did not want to deal with the Section 8 paperwork requirements, among other alleged problems regarding the federal payments. The tenant did not leave. The landlord then gave the tenant a 3-day notice to pay at the full monthly rent of $950 or quit. The tenant attempted to pay only her share of the rent, but it was refused. The landlord also returned the Section 8 share of the rent that automatically had been put into the landlord’s bank account. The landlord then filed an unlawful detainer (an eviction action) against the tenant.

The case was tried before a judge. The judge ruled that the landlord’s reason for terminating the tenancy based “business and economic reasons” did not fall within the just cause reasons for evictions under the Los Angeles rent ordinance. The landlord appealed. In its decision, the court agreed federal regulations, which control Section 8, had a lower protection level against evictions. But local laws can provide greater protection. Under the Los Angeles rent ordinance, the landlord’s reason for giving the tenant a 90-day notice was inadequate. Thus, the landlord failed to properly terminate the tenancy. This case can be helpful in jurisdictions that have rent control such as San Francisco, Berkeley and Oakland.

Under a three year old federal law, a new owner must give the tenant in a foreclosed home a 90-day notice to pay rent or move out before filing an unlawful detainer or eviction action. In this case, the tenant stopped paying her rent on the home where she was living. The landlord mortgage company, which had obtained the home from foreclosure, gave the tenant a 3-Day Pay Rent or Quit notice which is usually sufficient under state law. The tenant did not pay the rent within three days, and the mortgage company filed an unlawful detainer.

The tenant then filed a motion to throw the case out of court, also known as a motion to quash. The issue became whether the mortgage company had the power to step into the shoes of the landlord and issue a 3-day notice. The tenant argued that federal law controlled in this situation. The judge agreed with the tenant and issued a written ruling. The judge stated federal law which mandates a 90-day notice to pay rent or quit must be given. The judge also noted that after giving the 90-day notice to the tenant for nonpayment, the mortgage company would then have the option of filing an eviction action. This judge’s decision might signal a turn in the power of a mortgage company stepping into a landlord’s shoes.

Usually the covenant does not protect sublessors because there is no lease between the landlord and the sublessee. In most sublease situations, there is only a rental agreement between the lessor (usually referred to as the master tenant) and the sublessee. However, if the landlord expressly agrees to the sublease, then there is a contract between the landlord and the sublessee. The sublessee can then sue the landlord if there is a breach of the covenant.

A tenant has remedies for the landlord’s breach of the covenant. For instance, if the landlord attempts to make the tenant move out of the apartment by threats or force, then a tenant who prevails in a lawsuit against the landlord is entitled to a civil penalty not to exceed $2,000. This penalty applies even in a small claims action.

You might believe you do not have enough possessions or your possessions would not be that expensive to replace. However, if you own any electronics, have clothes, furniture, musical or sporting equipment or jewelry, you should have renters insurance. I have had clients who escaped from their burning apartment building with little more than the clothes they are wearing.

The cost of renters insurance is largely based on the estimated value of your possessions. The easiest way to figure out this value is to make a list of all of your possessions, when you acquired them and how much you paid for them. Some items like computers, usually decrease in value, while other items, like jewelry, can increase in value. It is also a good idea to take photographs of all your possessions. Store your list and the photographs in a safe deposit box or somewhere not in your apartment building. That way your list and photographs will not burn in the event of a fire.

Renting out a private residential apartment for a term of less than 30 days is illegal in San Francisco. In 1981, after a rash of single room occupancy units was converted to residential hotels, the San Francisco Board of Supervisors passed an ordinance. This ordinance forbids a landlord from renting an apartment for less than 30 days without obtaining a permit to convert the property to tourist use. Obtaining a permit converting a unit costs about $40,000 per unit.

The Department of Building Inspection and the Planning Department are supposed to enforce laws regarding short-term rentals. Once an investigator finds an illegal rental, investigators are supposed to alert the City Attorney’s office for possible prosecution. That has not happened. Instead, illegal, unapproved short-term vacation rentals have blossomed in San Francisco in recent years. Available apartments in certain highly desirable neighborhoods, like Rincon Hill near AT&T park, can only be rented for short-term use.

Only the Office of the Treasurer and Tax Collector is researching and contacting landlords who have short term rentals. Their investigators are contacting landlords and collecting the current hotel tax of 14%. While landlords are evading Rent Ordinance laws, the only City department that seems to taking any action is the Office of the Treasurer.

You have two options. You can stay past the 60 days in the notice, receive a three day notice to quit and then an unlawful detainer (eviction). If you received an unlawful detainer, you would have to defend against the eviction action in the superior court. While you can obtain low-cost legal advice in San Francisco for filing a response, most legal providers will not provide a free attorney to you if you want a jury trial on the merits of the landlord’s bad faith owner move-in notice.

Alternatively, you can move out and watch to see if the landlord moves in. Under the Rent Ordinance the landlord is supposed to move into your apartment within three months. The Rent Ordinance also requires the landlord live in your apartment in good faith for at least three years. How can you tell if your landlord actually moved in? Walk by your former home. Are there free newspapers and menus left in the doorway and not retrieved for months? Are the garbage bins put out the night or morning before trash collection day? Is the name on the mailbox your landlord’s? Is your landlord’s car parked around the neighborhood? These might be clues that your landlord did not move into your home.

Two tenants filed similar petitions for rent decreases with the Santa Monica Rent Control Board. The tenants alleged decreases in rent were justified because the landlord had reduced housing services. The reductions were that the landlord changed the property’s hot tub’s hours. The landlord also installed a sauna timer that reduced the time that the sauna would stay heated from one hour to 25 minutes. The Rent Board agreed with the tenants and reduced their rent by about $25 each month. The landlord then filed a writ in the superior court. The trial court agreed with the Rent Board regarding the decrease in services. The landlord appealed.

The court of appeal found “the minimal reduction of adult recreational services of a type commonly found in luxury housing does not justify decreasing rents without evidence that the rent thereby became excessive or the landlord thereby realized an unjust or unreasonable return on the investment in the property.” In other words, the reduction of the hours of a hot tub and sauna did not necessarily mean that a tenant’s rent was excessive. While this case might not be alarming in isolation, one should be alert for a series of incremental decreases in services.