Nuisance, Notices, and Eviction

“Don’t make me homeless again.”

That’s a heartbreaking plea from a client who said it to me when we were talking about the best way to fight her eviction. This fear, which could happen, keeps me fighting for my clients. Some clients have few options if they are evicted.

Going from nuisance to unlawful detainer

What is particularly disturbing about her eviction case is that it started from a 3-day Notice to Quit for Nuisance. Many times, once you receive those notices, you’re well on your way to receiving an unlawful detainer.

Why? Because if a landlord wants you out so that he can re-lease your home for higher rents, defending yourself against nuisance claims is difficult, particularly if you try to do it by yourself.

San Francisco rent ordinance

If you live in a rent-controlled apartment, there are 15 “just cause” reasons for evictions in San Francisco. Nuisance is one of the them.

Here’s the law as it’s on the books from the San Francisco Rent Board:

“The tenant is committing or permitting to exist a nuisance in, or is causing substantial damage to, the rental unit, or is creating a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building, the activities are severe, continuing or recurring in nature, and the nature of such nuisance, damage or interference is specifically stated by the landlord in the writing as required by Section 37.9(c).”

At first glance, it all seems like a good thing, doesn’t it? The phrases like “substantial damage” and “activities are severe.” If you were living next door to a person doing those things, you’d be glad to see them moving out.

But there’s plenty of room for interpretation by a landlord who is searching for reasons to move you out of your rent-controlled home so that he can re-rent it to another tenant at a higher rate.

Looking at an actual lease

A standard form lease from one of my clients, has this clause in it:

Tenant shall not commit, nor permit to be committed, any waste or nuisance upon, in or about the premises, nor shall the Tenant create or permit a substantial interference with the comfort, safety, or enjoyment of owner and other occupants of the building or their agents, guests, and/or invitees. Three complaints against tenant, tenant’s guests or invitees in any 12 months’ period shall be deemed a nuisance, is a substantial violation of a material term of the tenancy and is a just cause for eviction.

It looks similar to the law, doesn’t it? There’s some additional words like “waste” and “agents, guests, and/or invitees,” so it’s a little broader than the law in what it includes as who or what is a nuisance.

Most importantly, though, is that it’s a standard form, and the nuisance section is just one small part of pages and pages of the lease agreement. If you start negotiating with the landlord on the wording on this section, he will likely move on to the next person who wants to rent the apartment. So in many ways, you’re stuck with it.

The real problem

The real problem, though, comes from the definition of what a nuisance is. And how difficult it is to protect yourself from a nuisance charge, especially if you are defending yourself.

What’s a nuisance?

What’s a nuisance? Does your definition of a nuisance differ from what your neighbor thinks is a nuisance? Does it differ from what your landlord thinks is a nuisance?

One of my clients had children who did what every kid does: run. The neighbor complained to the landlord that when the kids were in the hallway running, it was a nuisance.

If this client had the lease cited above, and the landlord wanted to get that tenant out, this could have been one of the three annual complaints against the tenant. What happens when the children run again? Will this be another complaint of nuisance?

In another case, my client received a 3-Day Notice for Nuisance for hitting one of her neighbors. It was soon followed by an unlawful Detainer. Hitting a neighbor sounds bad, I agree. You might say that this tenant deserves to receive the notice. But there was more to the story.

Luckily, this person asked me to represent her, and we found in the discovery phase of the case that cameras recording the incident showed that the neighbor had pushed my client first. My client was defending herself. Of course, if she was representing herself against in this unlawful detainer, she likely would not have the experience, as I do, to press the landlord’s attorney for this piece of evidence.

Proving that no nuisance was committed

Proving that no nuisance occurred can be very tricky. This is because you are trying to prove that you “did not” do something.

For example, you receive a nuisance complaint for making the noise of “pounding on the wall.” (Yes, I know this sounds unusual but it happened to one of my clients.) You could say that you don’t pound on the wall. But how do you provide evidence that you don’t pound on walls?

An additional difficulty

Another difficulty with nuisance is that it varies from person to person, neighbor to neighbor, and landlord to landlord. What might be loud voices to one person might be normal speech to another.

Nuisance is tricky to define and difficult to disprove. If your actions have gotten complaints from the landlord or if you have been served with a 3-Day Notice to Quit for Nuisance, you should consider seeking the help of an experienced tenant attorney.

Know your rights. Protect yourself.

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Mary Catherine Wiederhold

Real Estate Attorney
1458 Sutter Street
San Francisco, CA 94109

Mary Catherine Wiederhold
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