Tag Archives: oakland

ANOTHER VICTORY FOR BORNSTEIN & BORNSTEIN IN A HEATED LANDLORD/TENANT DISPUTE

Published June 14, 2013 , , , , , , ,

The Law Offices of Bornstein & Bornstein continues its outstanding record of success in representing real estate investors by securing a trial victory in a heated landlord/tenant dispute.

Before a jury in Judge Bouliane’s courtroom in San Francisco, attorney Daniel Bornstein conducted a trial seeking the removal of the occupant from the premises at issue due to her failure to pay rent.

The facts of the case were as follows: The plaintiff entered into a written agreement with the defendant. The defendant failed to pay rent for the month of February 2013. The defendant argued that the landlord was discriminating against her due to her disability and that the landlord had breached the warranty of habitability. The defendant sought a 45 percent reduction in rent and to remain in the premises.

The jury considered the evidence, and in a 12-0 verdict, found on behalf of Bay Property Group, Bornstein’s client and the property manager. After years of feeling victimized by the defendant’s conduct, the landlord finally recovered control over his San Francisco rent-controlled unit.

Once again, 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 clients face civil litigation, unlawful detainer disputes or broker/agent claims, Bornstein & Bornstein has the resources available to manage disputes to successful resolution through negotiated settlement or trial.

LEGAL Q & A: CAN I CHARGE A TENANT FOR A BEDBUG INFESTATION?

Published March 25, 2013 , , , , , , , , , ,

My tenant recently informed me that they believe their rental unit has bedbugs. My tenant signed an addendum at the beginning of the lease agreement stating that this unit is free of bedbugs. The tenant would like for me to cure this issue. Can I charge the tenant the cost of the inspection and work done after I resolve this?

The answer depends upon whether you have identified the source of the bedbug infestation. If the bedbugs migrated from another unit into the current tenant’s unit, it may prove difficult for you to justify charging the tenant the cost of the inspection and subsequent remediation work. The tenant may not have caused the infestation, but may merely be a victim of the infestation.  Since the landlord has the ultimate responsibility for ensuring that there is no vermin infestation within the building and to remedy it (warranty of habitability), it would be inappropriate to assess the charge onto the tenant. However, if the landlord is able to demonstrate that the source of the infestation is, in fact, the tenant complaining, and there is no other explanation for how the bedbug infestation occurred (no bedbugs in any other unit in the building), then I think you would have a more likely chance of successfully requiring the tenant to pay for the inspection and remediation costs.  The best approach would be to deduct from the security deposit after the tenant vacates (if possible).  This would alleviate the potential conflict that often arises when a tenant disputes the demand for reimbursement for out of pocket costs for landlord repairs/pest remediation.

- Daniel Bornstein, Bornstein & Bornstein
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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.

 

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

Published January 11, 2013 , , , , , , , , , ,

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
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 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.

NEW LAWS AFFECTING CALIFORNIA LANDLORDS FOR 2013

Published December 19, 2012 , , , , , , , , , , , , , , , , ,

Photo by Justin Brockie

California landlords should be aware of the new real estate and rental housing laws for 2013. Below is a list compiled by the California Apartment Association. 

Security Deposits ‐ AB 1679 (Bonilla)
This CAA sponsored law, allows landlords to deposit – with the tenant’s agreement‐ any remaining portion of a tenant’s security deposit directly to a bank account designated by the tenant. The law also allows landlords to provide a copy of the itemized security deposit statement along with the supporting documents and receipts to an e‐mail account if provided and authorized by the tenant. Note: Landlord and Tenant cannot agree to electronic deposit or emailed itemized statement until after either party has served a notice of termination.

Abandoned Personal Property– AB 2521 (Blumenfield)
The law increases from $300 to $700 the value of a departing tenant’s abandoned personal property that triggers the requirement to hold a public sale before disposing of the personal property. Once the statutory notice period has passed, if the value of the property is less than $700, the landlord may dispose of the property in any manner or retain it for his/her own use.

  • The tenant now has a two day grace period to retrieve the property without storage charges if the property is stored on the premises.
  • Specific notice language must be included in 30/60/90 day notices and certain other forms.

Animals – SB 1229 (Pavley)
This law prohibits a landlord who allows a tenant to have an animal on the premises, from advertising or establishing rental policies that require a tenant or a potential tenant with an animal to have that animal declawed or devocalized as a condition of occupancy.

Rental Payments: Cash and Electronic Funds – SB 1055 (Lieu)
This law prohibits a landlord from requiring tenants to utilize electronic funds transfer (EFT) or cash as the only options for the payment of rent or a security deposit. Other options for payments must be offered.

Note: Owner can still require cash payment for three months after a check has been returned for insufficient funds or stop payment.

Failure to Disclose New Owner – AB 1953 (Ammiano)
The law prohibits a property owner from proceeding with an eviction for non‐payment of rent during the time that the owner is out of compliance with the legal notice provisions. Under existing law, Owner/agent must provide the tenant with the owner/agent’s name and the location where rent is to be paid (within 15 days of taking ownership). AB 1953 does not relieve the tenant from the duty to pay rent based on the new owner/agent’s failure to provide timely notice.

Smoke Detectors – SB 1394 (Lowenthal)
The law requires that on or before January 1, 2016, an owner must ensure that smoke alarms are located in each residential rental bedroom. Those smoke alarms may be battery operated.

Carbon Monoxide Detectors – SB 183 (Lowenthal)
California’s Carbon Monoxide Poisoning Prevention Act of 2010 requires that all residential property be equipped with a carbon monoxide alarm when the property has a “fossil fuel” burning heater or appliance, fireplace, or an attached garage. The law provides that,

  • All single‐family detached homes (owner or tenant occupied) must be equipped with an alarm on or before July 1, 2011.
  • All other residential units must be equipped with an alarm on or before January 1, 2013.

Domestic Violence – SB 1403 (Yee)
California law gives a tenant a number of protections and options when he/she is a victim of domestic violence.

  • Protection against termination if perpetrator is not a tenant in the same dwelling unit as the victim;
  • Right to have locks changed;
  • Right to terminate a lease if specific documentation is provided to the landlord;
  • SB 1403 extends these protections to abused seniors and dependent adults. It also adds permanent restraining orders to the types of documentation that can be used to establish the victim’s rights.

Foreclosures – SB 1191 (Simitian) & AB 2610 (Skinner)
These laws provide protections for tenants in the unit at the time of foreclosure.

  • 90‐day notices for month‐to‐month tenancies.
  • Long‐term lease continues until end of term, with exceptions such as new owner will be moving in; rent is substantially below market; the lease was created between family members, or the lease was not the result of an “arms‐length transaction.” In these cases, a 90‐day notice is required to terminate.

A property owner who has received a Notice of Default from the bank must disclose this fact to any new tenants.

Disability Access – SB 1186 (Steinberg & Dutton)
Among other things, this law prohibits an attorney or any person from issuing a pre-litigation demand for money to a building owner and reduces potential damages for owners who are bringing the property into compliance with ADA requirements and meet certain other conditions.

By Debra Carlton, CAA Senior Vice President, Public Affairs & Heidi Palutke, CAA Research Counsel
For more info, visit www.caanet.org 

 

 

ZILLOW: BAY AREA REAL ESTATE REBOUNDING

Published October 24, 2012 , , , , , , , , , , , , , ,

By Carolyn Said

Two real estate reports out Tuesday paint a picture of a Bay Area market in turnaround mode against a backdrop of uneven recovery nationwide.

Real estate service Zillow showed that Bay Area home values rebounded by 8.2 percent in the third quarter compared with the same time last year – but are still down 29.5 percent from their peak in 2006.

Meanwhile, listings site Realtor.com looked at price changes and supply/demand dynamics in a report on for-sale houses called “Turnaround Towns” that showed Oakland leading the nation, followed by Sacramento, San Jose, San Francisco and the Seattle region.

Zillow’s report assesses what all homes in an area are worth, although the prices of recently sold homes factor heavily into the equation.

The Bay Area’s 8.2 percent home-value increase – with homes worth a median of $483,302 – outperformed the nation, which had a 3.2 percent increase in the third quarter compared with last year.

Continued tight inventory, leading buyers to bid up home prices, helps fuel that appreciation, said Stan Humphries, Zillow chief economist. While he expects prices here to continue rising, he thinks future increases will be more modest than this year’s robust gains.

“There aren’t enough houses to go around for buyers,” said Jess Williams, a real estate agent with Redfin in San Francisco. Average asking prices in the city are up 23 percent this month from the same time last year, he said. Some buyers are jumping into the market because rents are so high they realize the same monthly amount would cover a mortgage payment. Low interest rates are another incentive.

Read more: http://www.sfgate.com/realestate/article/Zillow-Bay-Area-real-estate-rebounding-3973287.php#ixzz2ACJXLDTK

ANOTHER VICTORY FOR BORNSTEIN & BORNSTEIN!

Published October 9, 2012 , , , , , , , , , , ,

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 , , , , , , , , , , , ,

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 , , , , , , , , , , , , , , , , ,

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 , , , , , , , , , , , , , , , , , , , , , , , ,
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 , , , , , , , , , , , , , , , , , , , , , ,

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.