chipping.paint.jpgDave’s here to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com, here’s what to make sure to include in your letter.

I have been living in my apartment in Oakland since August 2009. When I moved in with a roommate, we had one property management company, and now we have another (the second one bought the first one out). About 8 months into my residency here, my roommate moved out and my boyfriend and his young daughter moved in.

We went to our property management company and filed an addendum but we cannot locate our copy of this. We also paid a $35 credit check fee in cash. Not long after this, we received a letter that we have a new property management company, and to send our checks there.

When my one year lease was up, they requested that we come in to the office to sign another addendum. We did, and we entered into their log book that we did. They told us that their copier was broken and could not give us a copy at that time, and with a hyper 2 year old becoming less easy to contain by the minute, we agreed.

At this point, we’ve now filled out the paperwork twice to add my boyfriend to the paperwork. This was in about August 2010. We never received anything in the mail, and they kept cashing our rent checks.

This month we noticed that our bathtub was chipping (our building is from 1924). We bought a lead test kit and found that it was dangerous to bathe the kid. In the back and forth with maintenance and our property management company, they all of a sudden stopped talking to my boyfriend about the problem, saying that he is not on the lease or any other paperwork for that matter.

The last time I talked with the owner of the prop management company, he was quite literally screaming at me that if we don’t come and fill out an application and pay the $35 credit check fee within 24 hours, he will process eviction paperwork for us because my boyfriend is ‘squatting’.

Our checks that we pay rent with have both of our names with our current address on them. Does this give my boyfriend any sort of tenancy? Is it possible to be a squatter if you have been paying your rent on time every month?

I really believe that they are upset at us for complaining about lead paint (not only in our bathroom, but throughout our entire apartment as we have now found out) and are retaliating by looking through the paperwork to find anything wrong, or by ‘losing’ the paperwork all together.

Is there anything we can do? I have been laid off and we are struggling to make ends meet, and I have no idea what we will do if we lose our apartment with our rent controls. Please help us. Is there anyone that we could even talk to?

Isn’t it interesting that the management company conveniently lost any evidence of previous consent to your boyfriend’s tenancy only after your complaint about a serious problem? This is a classic retaliation by the landlord as prohibited in California Civil Code 1942.5.

Before I discuss any legal remedies or defenses you may have, I can’t be emphatic enough, YOU MUST PROTECT YOUR CHILD FROM POTENTIAL LEAD POISONING! Lead is especially harmful to children and can cause many health problems including brain damage.

You should immediately call the local enforcement agency for the Childhood Lead Poisoning Prevention Branch of the California Department of Public Health. The website shows that Alameda County Community Development Agency is the local agency for Oakland. The website indicates that Maricela Narvaez-Foster, RN, MA is the Coordinator and can be reached at 510-567-8294. Her email is maricela.foster@acgov.org.

My experience with the San Francisco program is that they are very responsive and very concerned about the child’s safety. When they write a Notice of Violation it has some teeth.

I also recommend that you call Oakland Building Services to complain about violations of the Oakland Housing Code. I’ll bet your unit and your building has more violations than peeling paint.

You may also want to call the Environmental Protection Agency Hotline at 1(800) 424-5323, to learn more and to ask if the EPA can provide you with any help.

If you have some well-documented complaints, and hopefully, some violations on the record, the law presumes that the landlord is evicting you with a retaliatory motive. Any notice to quit or unlawful detainer served within 180 days of your complaints creates the presumption, as long as you keep paying your rent.

Speaking of documentation, if you read Tenant Troubles, you know I always tell tenants to communicate with their landlords in writing. I also tell them to insist upon receiving receipts when they pay for something in cash. California law requires a landlord to give you a receipt for a rent payment.

For future reference, if a landlord cannot give you a copy of your lease, or in this case, an addendum to lease, because the “copy machine is broken,” tell them you’ll wait while they go to Kinkos to get a copy.

Oakland Measure EE which provides for just cause eviction, clearly provides that that a landlord’s consent to a sublet is presumed if the landlords fails to respond to a tenant’s written request to sublet after 14 days. The problem is that you don’t have a copy of a written request.

You boyfriend is a tenant under Measure EE, and given the facts as you state them, I think a jury would be loathe to evict you.

You should be ready, however, to respond quickly to any notice you receive for the landlord. Check in with Causa Justa in Oakland and the East Bay Community Law Center to prepare yourself for a three-day notice and possible unlawful detainer (eviction lawsuit). Begin to put together a folder with any evidence you may need to defend yourself.

Tenants: This is a cautionary tale. Always communicate with the landlord in writing, email is fine. Always get and save receipts when you pay cash. Always get and save a copy of your lease. It’s unfortunate that tenants have to act like lawyers, but that’s realty in a rent controlled jurisdictions theses days. Landlords will do anything, including flat-out lying, to evict you and increase their cash flow.

Dave Crow is an attorney who specializes in San Francisco landlord tenant law. However, the opinions expressed in these articles are those of the author, do not constitute legal advice, and the information is general in nature. Consult the advice of an attorney for any specific problem. You understand that no attorney-client relationship will exist with Dave Crow or his firm, Crow & Rose unless they have agreed to represent you. You should not respond to this site with any information that you believe is highly confidential.

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the author

Dave Crow is an attorney who specializes in San Francisco landlord tenant law. However, the opinions expressed in these articles are those of the author, do not constitute legal advice, and the information is general in nature. Consult the advice of an attorney for any specific problem. You understand that no attorney-client relationship will exist with Dave Crow or his firm, Crow & Rose unless they have agreed to represent you. You should not respond to this site with any information that you believe is highly confidential.

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  • Rogre’

    Good advice, but also know that California law (Civil Code section 1962(a)(4)) requires a landlord, UPON [WRITTEN! WRITTEN!] REQUEST by a tenant, to furnish the tenant within 15 days a copy of their rental agreement once a year. This should include the addendums you signed.

  • Samuel

    Something smells fishy here. So, the tenant failed to get a receipt because her two-yr-old was having too much fun, why didn’t she request a written receipt? Would have taken all of two minutes. Alright, fine, whatever. And then she conveniently lost her copy of the application. Ok, so she’s sloppy. And the landlord somehow knows that she lost her copy, how does the landlord knows this? So the management uses spys? I dunno. Then why didn’t they straight out evict her? Why did they even bother to offer her the chance to fill out another application? This whole thing does not make sense.

    Here is what I think: she never filled out the application. She never paid the credit check. But she did paid rent on time with checks bearing her and boyfriend’s names. Thus, she asked if landlord accepting such checks constitute acceptance of her boyfriend’s tenancy. This is the key question, Dave. You failed to answer that question.

  • Samuel

    Something smells fishy here. So, the tenant failed to get a receipt because her two-yr-old was having too much fun, why didn’t she request a written receipt? Would have taken all of two minutes. Alright, fine, whatever. And then she conveniently lost her copy of the application. Ok, so she’s sloppy. And the landlord somehow knows that she lost her copy, how does the landlord knows this? So the management uses spys? I dunno. Then why didn’t they straight out evict her? Why did they even bother to offer her the chance to fill out another application? This whole thing does not make sense.

    Here is what I think: she never filled out the application. She never paid the credit check. But she did paid rent on time with checks bearing her and boyfriend’s names. Thus, she asked if landlord accepting such checks constitute acceptance of her boyfriend’s tenancy. This is the key question, Dave. You failed to answer that question.