Dave’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.
We got two forms from our landlord, who is in the process of selling the 3-unit Victorian in which we live. We two, 53 and 64 years old, have lived in our unit since August 1990. We were wondering if we are legally required to fill out these forms. They are both from the SF Association of Realtors.
The first is a request for information under Sections 37.9(i) and (j), about protected class status. The second is a general form asking about the lease (we are month-to-month), such as deposits, current monthly rent, date of last rent increase, amount of increase, etc.
Your question is a common one. The sale of a building, especially a smaller building, justifiably creates anxiety for tenants. The other shoe is going to drop and you don’t know how or when.
Your question also indicates to me that your landlord did not serve you a “Disclosure of Rights to Tenants Before and After Sale of Rental Units Subject to Section 37.9” as required by Rent Ordinance ??37.9(k). The mere service of the required disclosure could alleviate some anxiety for tenants, but what self-respecting landlord or real estate agent would want to do that?
The forms you described are legally characterized as “estoppel certificates.” Estoppel is the fancy legal term for preventing a person from asserting a fact or a claim inconsistent with a position they previously maintained. They are meant to “estop” (prevent) a new buyer from claiming he or she didn’t know about agreements made to modify an existing lease. More importantly, your statements in an estoppel form could be used against you if you make later inconsistent claims.
The short answer to your question is no, not unless your lease requires you to fill out the forms. Leases written in 1990 usually do not contain terms stating that a refusal to sign an estoppel form constitutes a breach of the lease.
Rent Ordinance ??37.9(k) (E) is clear that the pre-sale disclosure must contain:
“A statement that tenants are not required to complete or sign any estoppel certificates or estoppel agreements, except as required by law or by that tenant’s rental agreement. The statement shall further inform tenants that tenant rights may be affected by an estoppel certificate or agreement and that the tenants should seek legal advice before completing or signing an estoppel certificate or agreement.”
Regarding the first form, there is no harm in filling that out. Why? Because the new buyer should understand that you are protected tenants for the purpose of an owner move-in eviction under Rent Ordinance ??37.9(i)–one of you is over 60 years of age and you’ve lived in the unit for 22 years. I think it is a good idea to disclose any disabilities as well.
Regarding the second form requesting general information, at the San Francisco Tenants Union, we recommend that you should think about disclosing information to a new buyer and put that information in a letter rather than limiting yourself to the form.
After 22 years, it is likely that your use of the unit has changed since you signed the original lease. For example, if you receive verbal permission from the landlord to have pets even though the lease prohibits pets, you should disclose this to a prospective buyer.
My general advice is to think about how your tenancy has expanded over the years. Do you now use a storage space? Are you allowed to use the roof deck or back yard? All of this should be disclosed in a letter to the prospective buyer.
Of course, if you have an oral agreement, it is likely that the terms only include an amount of rent and a date to pay. In that case, your letter could point out that you have an unrestricted right to sublet and that your pet rhinoceros is allowed to graze in the backyard.
It is a good idea to drop by the San Francisco Tenants Union to speak with a counselor about how to construct your response to the landlord’s request for information.
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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