Tag Archives: lawyer

LEGAL Q&A: EVICTING A GANG MEMBER FROM YOUR RENTAL UNIT?

Published January 11, 2013 evicting, gang, gang members, lawyer, liability, oakland, property management, safety, san francisco, tenants, unit

I suspect that my tenant is attracting gang activity to his/her unit, and I fear for the safety of my other tenants. What is my legal responsibility to protect my tenants and how do I proceed with the situation?

A landlord has an obligation to ensure the quiet enjoyment of the premises for all occupants. If a landlord is aware and/or placed on notice that an individual’s misconduct is potentially harmful to others, the landlord should take steps to prevent such misconduct from occurring. Failure to do so, could result in the landlord being civilly and financially liable for the harm done. Courts may impose liability based on contract, covenant of quiet enjoyment, implied warranty of habitability and/or tort principles. Under the tort theories of negligence and premises liability, a landlord has a duty to his tenants to keep the premises safe and warn of any dangerous conditions, such as criminal activity on thenpremises. If a landlord has notice of criminal activity, he has a legal responsibility to take steps to secure the common areas. Failure to take reasonable steps to prevent harm to the tenants may result in liability.

Accordingly, if a landlord believes that a tenant is involved in gang-related conduct, a landlord should immediately notify the police and take steps to retain an attorney and seek the removal of the person from the premises. However, gang affiliation alone is probably not sufficient. Rather, it is more important for the landlord to be able to identify actual disturbances, threats, harassment, criminal activity, loitering and/or misbehavior that would justify the removal of the individual for either engaging in illegal conduct or conduct of a nuisance character. For example, if the tenant and his “friends” are loitering in the building’s common areas at all hours of the night, drinking alcohol, causing other building occupants to be kept from sleeping due to the noise and disturbances, the landlord should first give notification to cease said conduct, and if it continues, serve a formal notice to cure or quit for nuisance. Should the disturbance remain unabated, then the landlord can in good faith proceed with an eviction.

- Daniel Bornstein and Liana Ayrapetyan, Bornstein & Bornstein
___________________________________________

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. As published in Rental Housing, the magazine of The East Bay rental Housing Association.

ANOTHER VICTORY FOR BORNSTEIN & BORNSTEIN!

Published October 9, 2012 bornstein and bornstein, dispute, eviction, landlord, lawyer, oakland, property management, real estate, san francisco, tenant, unlawful detainer, victory

Bornstein & Bornstein: Legal Victory – Landlord/Tenant Unlawful Detainer Lawsuit
Chu v. Gormian, SF Superior Court Case #12-642284
Published: Tuesday, Oct. 2, 2012 – 6:13 am

SAN FRANCISCO, Oct. 2, 2012 — Bornstein & Bornstein, a boutique real estate law firm with offices in San Francisco and Oakland, continues its outstanding record of success in representing real estate investors by securing a trial victory in a heated landlord/tenant dispute.

Before Judge Tsenin of the San Francisco Superior Court, Daniel Bornstein conducted a trial seeking the removal of all occupants from the premises at issue due to a violation of the lease covenant prohibiting subletting without owner’s prior written consent of the owner.

The facts of the case were as follows: Plaintiff entered into a written agreement with the defendant in 1990, approximately 22 years ago. Defendant, without written consent, had sublet the premises to eight other individuals. Defendant argued that the landlord had either knowingly permitted the subletting to occur or waived his right to enforce the subletting provision. On behalf of the landlord, Daniel Bornstein successfully rebutted the claims raised by the defendant and argued that no such authorization was granted and/or waived. Judge Tsenin quickly confirmed plaintiff’s legal argument and entered judgment in favor of Bornstein’s client. After many years of feeling victimized by the defendant’s conduct, Bornstein’s client finally recovered control over his San Francisco Rent Controlled Unit. Once again, The Law Office of Bornstein & Bornstein successfully accomplished the goal set by its client, and through the use of the litigation process, preserved a client’s real estate investment.

Whether you face civil litigation, unlawful detainer disputes and/or broker/agent claims, Bornstein & Bornstein has the resources available to manage your disputes to successful resolution – either through negotiated settlement or, if necessary, trial.

Bornstein & Bornstein is ready to serve you should the need arise. Contact us at 415-409-7611 and/or email Daniel Bornstein at Daniel@bornsteinandbornstein.com. www.bornsteinandbornstein.com.

Originally posted on The Sacramento Bee

RETAIN YOUR RELIABLE TENANTS!

Published November 10, 2011 attorney, Bornstein, civil litigation, construction eviction, landlord tenant litigation, lawyer, oakland, property management, renters rights, san francisco, tenant law, tenants rights, wrongful eviction

While the number of renters in the market has increased in the last few years, retaining good tenants can still pose a problem for property managers. Maintaining a current resident is much less expensive than locating, approving, and moving in a new tenant. Of course the nature of renting itself is often transient; many people rent while looking for a home to buy, others only in the community for a short period of time.

But there are a select group of tenants that would be more than happy to stay in the community where they rent; provided that they’re happy.

So how do you make…and keep your tenants happy? Perhaps most important is good customer service. Most people, by nature, do not really enjoy moving frequently and will likely find reasons to stay where they are, providing that they receive the following:

Good staff responsiveness – Do you always respond promptly to tenant requests? Are maintenance issues resolved quickly and professionally? Are complaints or other issues handled properly, or are they just put aside? These are all important issues and tenants will remember how they are handled (or not handled) at renewal time.
Maintaining the look and quality of the property – Obviously, your properties should be maintained anyway, but many tenants that do become dissatisfied with their apartment home cite issues such as “the property went downhill.” While not very descriptive, this can mean anything from neglected landscaping, trash scattered throughout the property, or becoming careless about whom you rent to. Tenants think of their apartment as their home, and coming home to suspicious characters hanging out in the parking lot, or trash blowing around in the wind will make a tenant seriously consider moving come renewal time.
Keep them informed and involved – What’s going on in the community that you can share with your tenants? A monthly newsletter, holiday wine & cheese parties, an annual property yard sale, all of these things help to create a feeling of community, and that can be potent.
Consistency in Staffing – While a change of staff cannot always be prevented, it’s important to maintain some consistency in the rental office. Tenants often become very attached to office personnel, and frequent staff turnover may not only affect property performance, but tenant turnover as well.

While there will always be tenant turnover, building and maintaining a solid community will help you maintain more of your tenants come renewal time.

Article from PropertyManager.com

NEW LAW OK’S POLITICAL SIGNS ON APARTMENTS

Published October 4, 2011 apartments san francisco, attorney, Bornstein, civil litigation, construction eviction, landlord tenant litigation, lawyer, oakland, political signs san francisco, property management, property management oakland, Property Management San Francisco, renters rights, san francisco, san francisco real estate, tenant law, tenants rights, wrongful eviction

September 30th, Governor Jerry Brown signed legislation that will allow Californian apartment dwellers to display political signs on their windows and balconies.

Current legislation, however, still specifies that residents of condominiums and mobile home parks may post signs only under the authorization of the landlord.

To read more, click here

POTENTIAL TENANT’S BOUNCED CHECK HISTORY

Published September 25, 2011 AAOA, attorney, Bornstein, civil litigation, construction eviction, landlord tenant litigation, lawyer, oakland, Oakland Landlords, Oakland Renters, Oakland Renters Check Verification, Oakland renters check writing history, property management, Property Management San Francisco, renters rights, san francisco, San Francisco Apartment Rentals, San Francisco Landlords, San Francisco Renters, San Francisco Renters Check Verification, San Francisco renters check writing history, TeleCheck, tenant law, tenants rights, wrongful eviction

Wouldn’t you like to find out if an applicant has written bad checks before you hand over the keys to your property?

It’s easy to find out, because the TeleCheck® Check Verification Service is available to AAOA members.

TeleCheck is well-known for assisting merchants in separating good check writers from bad ones, allowing them to adopt a liberal check acceptance policy that will benefit both the merchants and their customers.

These same national databases are available to landlords through AAOA and contain real-time information from more than 306,000 businesses and financial institutions.

TeleCheck offers the most accurate check verification service in the industry. These databases provide merchants with continually updated information including bad check activity as it occurs, automated inquiries using the consumer’s identification (Driver’s License or State ID) as well as checking account data.

An applicant’s check writing history can indicate what type of renter they will be.

The basic Verification service quickly separates good and bad check risks using TeleCheck’s negative database. This database comprises more than 51 million bad check records and can help detect a poor rental prospect, as well as a fraudulent application.

The Verification with Risk Management service uses both TeleCheck’s check writer activity and negative databases along with its risk management system to identify not only bad check writing risks, but also good ones.

The risk management service utilizes TeleCheck’s risk and predictive-modeling systems to analyze over 30 variables to predict the probability of a check being good. These assessment tools include regression modeling, neural networks, & decision tree analysis.

To learn more go to www.joinaaoa.org

Original Article from American Apartment Owners Association

5 PRE-EVICTION MISTAKES TO AVOID

Published September 21, 2011 attorney, Bornstein, civil litigation, construction eviction, landlord tenant litigation, lawyer, oakland, oakland aparments, Oakland Courts, Oakland Evictions, Oakland Property Owners, Oakland Renters Rights, property management, renters rights, san francisco, San Francisco Apartment Rentals, San Francisco Courts, San Francisco Evictions, San Francisco Property Owners, San Francisco Renters Rights, tenant law, tenants rights, wrongful eviction

Time is money when it comes to evictions, and mistakes made along the way can cost a landlord both.

Are you sabotaging your own eviction cases?

What you do in the days and weeks leading up to an eviction can make or break the case when it goes to court. Here are 5 common pre-eviction mistakes that you can avoid:

1. Thinking You Have the Upper Hand

Believing that your rights as a property owners will somehow trump the rights of the tenant is a costly mistake, especially if you develop a false sense of confidence when dealing with tenant problems.

Once the tenant is in the property, you are going to need very specific legal grounds to kick them out– like unpaid rent, a serious breach of the lease, an obvious nuisance or certain types of illegal behavior, or termination of a lease with proper notice.

Research the rules or seek legal advice to determine if you can rightfully bring an eviction in your situation, and find out how long your eviction might take–contested cases can take months. That may cause you to re-think your strategy with tenants.

2. Believing the Eviction Will Be a Slam-Dunk

It’s the landlord who has to justify the case to the court. Unfortunately, not all eviction laws–and not all judges, are landlord-friendly.

Your case will only be as good as your lease, and the supporting documentation that you collected during the lease term. If you are not in the habit of keeping meticulous records, now is a good time to start.

Many evictions are contested. That means the condition of the property or a claim of uninhabitability may be fair game to fight the order for possession, or to reduce damages owed by the tenant. Has the unit been treated for bedbugs? Did the air go out over the summer? Did you charge one tenant late fees but not another? All will be revealed when the case goes to court.

3. My Lease Will Save the Day!

True–if it’s a good lease. Often leases fall short by not providing clear language regarding key elements. Examples may include having no provision defining when your tenant is in default in rent payments, late rent based on rolling late fees that can be construed as illegal, or not restricting the behavior you are trying to evict over.

Some provisions that are ’standard’ in packaged leases may be illegal in your situation. Have an experienced attorney in your area review your lease agreements.

4. Little Mistakes Won’t Matter

The entire eviction case hinges on proper notice to the tenants. All tenants must be notified in whatever fashion the local laws require.

The notice must be flawless–no misspelled names, timelines must be exact.

Trying to draft and serve eviction notices yourself if you are not familiar with the law can set the stage for failure–get ready to have the case dismissed, and start the whole process over again.

If you don’t know how to complete the notice forms and have them served, get help before you waste time and money.

5. I’d Never Pay a Tenant to Move Out

‘Cash for keys’ settlements–paying the bad tenants to leave, aren’t palatable to some landlords on principle. But considering the time span of the ‘average’ eviction along with the additional costs of a sheriff’s officer, a moving company, storage or possible sale of tenant’s property, cleaning, and repairing any ‘hard-feelings’ damage to the unit, it may make sense from a financial prospective.

If you can compromise with your nightmare tenant for a quicker move-out time, without leaving their mark on your unit, it could save you hardship down the road.

Original Article from AAOA-Find out more at www.joinaaoa.org.

A PERFECT BALANCE: PROPERTY MANAGER, ATTORNEY, AND OWNER

Published July 21, 2011 attorney, Bornstein, civil litigation, construction eviction, Daniel Bornstein, landlord tenant litigation, lawyer, oakland, Oakland and East Bay Property Owner, property management, renters rights, RHANAC Board Member, san francisco, San Francisco Lawyer, San Francisco Multi Family Property, Tackleling Tenants Challenges, tenant law, tenants rights, UC Berkeley Law School, University of Michigan, wrongful eviction

Landlord attorney, Daniel Bornstein, was interviewed and reviewed in The East Bay Rental Housing Association Magazine. Read the article here: Daniel Bornstein: Perfect Balance

IS YOUR POTENTIAL TENANT AN EX-CONVICT?

Published July 16, 2011 attorney, Bornstein, California state prisoner realignment, civil litigation, construction eviction, landlord tenant litigation, lawyer, oakland, property management, Reentry Council of San Francisco, renters rights, san francisco, San Francisco City Hall Proposals, San Francisco Ex-Convicts become a "protected class", San Francisco Housing Authority, San Francisco Sheriff's Department, tenant law, tenants rights, wrongful eviction

Ex-convicts may soon become a “protected class” in San Francisco – joining African Americans, Latinos, gays, transgender people, pregnant women and the disabled.

A proposal being circulated at City Hall would make it illegal for landlords and employers to discriminate against applicants solely because they were “previously incarcerated.”

Sex offenders and perpetrators of some violent crimes would not be covered.

It would also be illegal to ask anyone about their criminal past on an initial job or housing application.

“The mechanics still need to be worked out,” said Supervisor and sheriff candidate Ross Mirkarimi.

“This is a very important discussion on the eve of an immense state prisoner realignment that’s going to return hundreds of prisoners back to San Francisco,” Mirkarimi said.

Ex-cons already are a protected class when it comes to applying for a city job or seeking to live in housing run by the San Francisco Housing Authority.

Recently, however, the Reentry Council of San Francisco – made up of representatives of the mayor’s office, the Police Department, the district attorney’s office, the Sheriff’s Department, the Adult Probation Department and ex-convicts – adopted a resolution urging the city to apply the special status to the private sector as well.

Janan New of the San Francisco Apartment Association condemned the idea, saying state and federal law already prohibits landlords from “arbitrarily discriminating” against applicants.

“When somebody comes to rent housing, we have the ability … to screen someone based only on the ability to pay rent,” New said.

Now, by creating a newly protected class of citizens, New fears the city will unfairly open the door to “where people can litigate because they say, ‘You’re discriminating because I’m an ex-felon.’ ”

“Trust me – I recognize the concern,” said District Attorney and former Police ChiefGeorge Gascón, who backs the plan. “But if we want to reduce the likelihood of people going back to prison, then we have to provide them with an opportunity to reintegrate themselves.”

The city’s Human Rights Commission is preparing to hold hearings on the proposal next week.

Last chance: After a last-ditch meeting that went nowhere, it’s game on for the big pension reform fight.

“We’re going to take it all the way to the finish line,” Public Defender Jeff Adachi said after his Monday afternoon sit-down with Supervisor Sean Elsbernd and union leaders went south.

Adachi’s price for keeping his plan off the ballot was a “safety valve” that he wanted inserted into City Hall’s proposal. Under it, city workers would contribute more to their pensions than they have already agreed to if the stock market fails to perform to projections.

The idea was pretty much a nonstarter.

With that, Adachi went over to City Hall and submitted 72,640 signatures to qualify his measure for the November ballot.

Headed east: A delegation of state and regional transit officials jetted over to Shanghai for a $200,000 celebration of the final fabrication of the new Bay Bridge eastern span.

Workers at Shanghai Zhenhua Heavy Industries Co. were still putting some final touches this week on sections of the $6.3 billion span, wrapping up five years of outsourced – and sometimes troubled – bridge production.

Over the weekend, bridge contractors led by American Bridge-Fluor hosted a giant hamburger and hot dog barbecue for hundreds of Chinese workers at the main plant.

Contractors picked up a $150,000 tab for this and other parties – thanks, no doubt, to your toll bridge dollars.

The Bay Area Toll Authority footed a $50,000 party bill, plus an estimated $22,500 for flights and hotels for seven of its commission and staff members – plus two California Transportation Commission reps – to attend.

Caltrans, which has had as many as 65 workers in China for the past five years, insists nobody made a special trip from Sacramento just for the celebration.

In the grove: Retired U.S. District Judge Vaughn Walker, who struck down the state’s voter-approved same-sex marriage ban, will join San Francisco Giants CEOWilliam Neukom, filmmaker Ken Burns, former U.S. Sen. Alan Simpson and ex-Secretaries of State James Baker and George Shultz as speakers at the annual Bohemian Grove bash this month.

On a lighter note, Peter Sagal, host of NPR’s “Wait, Wait … Don’t Tell Me,” is speaking on “Lord Rochester’s Joke and the Flaw in Bohemia.”

One tell-tale sign of the secretive July 14-31 gathering will be the stream of private jets landing at Santa Rosa Airport, and the procession of black limousines shuttling big-shot CEOs to the 2,700-acre redwood forest encampment along the Russian River.

(SFgate.com- Philip Matier & Andrew Ross)

INSTALL CARBON MONOXIDE DETECTORS – IT’S THE LAW!

Published June 23, 2011 attorney, Bornstein, california landlord tenant law, civil litigation, construction eviction, landlord tenant litigation, lawyer, oakland, property law san francisco, property management, real estate san francisco, renters rights, san francisco, san francisco oakland california housing, SF Apartments, tenant law, tenants rights, wrongful eviction

Don’t forget that according to SB 183, as of July 1, 2011, carbon monoxide detectors should be installed in dwellings intended for human residence.

“SB 183 (Lowenthal)—Carbon Monoxide Detectors

SB 183 enacts the Carbon Monoxide Poisoning Prevention Act of 2010 that requires an owner of a dwelling unit intended for human occupancy to install an approved carbon monoxide (CO) device in each existing dwelling unit with fossil fuel burning heater or appliance, fireplace, or an attached garage, within the earliest applicable time period as follows.

For all existing single-family dwelling units intended for human occupancy on or before July 1, 2011; and,
For all other dwellings intended for human occupancy on or before January 1, 2013

SB 183 also (i) requires landlords to maintain these CO devices within must be operable when the tenant takes possession, (ii) allows the landlord, upon specified notice, to enter a rental unit to test and maintain the CO device; (iii) makes the tenant responsible for notifying the owner of inoperable or defective devices in their unit, and (iv) imposes a monetary fine on violations of these provisions. SB 183 also revises the statutory transfer disclosure statement that a seller of a manufactured home or a one-to-four unit residential property must provide to a buyer to add specified disclosure statements regarding CO devices including that their installation is not a precondition of sale or transfer.”

(California Real Property Journal- Vol. 29 num. 1)

OWNER’S RIGHT TO SERVE AND ENFORCE REASONABLE HOUSE RULES FOR MONTH-TO-MONTH TENANCIES WITHOUT A WRITTEN LEASE AGREEMENT, OR WITH AN OUTDATED LEASE AGREEMENT ABSENT HOUSE RULES

Published June 17, 2011 attorney, Bornstein, civil litigation, construction eviction, http://www.sfaa.org/court_cases.html, landlord tenant litigation, lawyer, partment House Rules, property management, renters rights, san francisco, San Francisco Civil Code section 827, San Francisco Marino v. Hernandez, San Francisco Month-to-Month Rentals lease agreements, San Francisco Sub-leases, SF Rent Ordinance and the Civil Code, sub-leases, Sub-Leasing a San Francisco Apartment, tenant law, tenants rights, wrongful eviction

Marino v. Hernandez: In this case the plaintiff, A. Paul Marino, filed a complaint for unlawful detainer against the defendant, Ernest Hernandez. Marino’s action for unlawful detainer against Hernandez stemmed from Hernandez’s violation of a covenant prohibiting subleasing without written consent from the owner.

Hernandez contended that the no-sublease covenant originated when Marino instituted House Rules during Hernandez’ month-to month tenancy in June 2009. Marino maintained that the no-sublease covenant existed in the oral lease that Hernandez had with the previous landlord, and that the clause was in effect before he purchased the building.

Marino further argued that violation of the no-sublease covenant was a ground for eviction under the SF Rent Ordinance and the Civil Code. Hernandez argued that the no-sublease covenant cannot be the bases of eviction because the covenant came from House Rules imposed by Marino during the tenancy.

Marino maintained that a tenant in a month-to-month tenancy is impliedly agreeing to the landlord’s change in lease terms when the tenant continues to stay and pay rent, if the change in terms is properly enacted pursuant to Civil Code section 827. The trial court agreed with Marino, stating that the tenant’s consent to new covenants “is implied by his continued residence.”

This decision is very important in that it gives owners the ability to serve and enforce reasonable House Rules for month-to-month tenancies without a written lease agreement, or with an outdated lease agreement absent House Rules. Should the tenant consent to the House Rules explicitly or impliedly, violation of the House Rules would be considered grounds for a just cause eviction.

Paul Marino vs. Ernest R. Hernandez…In this case the tenant argued that the no-sublease covenant cannot be the basis of eviction under the Rent Ordinance because the covenant emanates from House rules unilaterally imposed by the landlord. This decision now makes it possible for landlords to serve and enforce House Rules whenever there is no written rental agreement in existence, and/or to create House Rules for tenancies with leases lacking basic rules.

The new House Rules become effective after 30 days and when the tenant pays his next month’s rent in a month to month tenancy.

For more interesting cases visit http://www.sfaa.org/court_cases.html

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