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Marc Paul Branco
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Marc Branco’s Answers

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  • Help! Tenant not paying rent claim property condition not livable and they try to seek for an attorney after I ask for rent.

    I just bought a property in Oakland CA, and the tenants have not paid rent to the previous owner for half year, the property condition is poor, can the tenants sue me and stay in the property without paying rent? they refused to move or pay rent w...

    Marc’s Answer

    Look before you leap!

    You may want to think twice before you evict these tenants. If you evict for non-payment of rent and your tenants raise the affirmative defense of breach of the implied warranty of habitability and they win - you will be ordered to make repairs by the court and the tenant will be ordered to pay a reduction of rent to the court based on a percentage of the condition of the premises. For example a rental unit that does not contain a heater violates Cal. Civ. Code Section 1941.1 and is per se a breach of the implied warranty of habitability. Lack of heat is usually about a 20% reduction in rent. Therefore for every $1,000.00 the tenant owes in rent they would only be a liable for $800.00, which would be paid into the court and said funds would only be released to the landlord after he/she has completed all repairs satisfactory to the Court's order. A missing range hood alone, although not a substantial breach is most likely a breach of State and Local Building Codes, and may entitle a tenant to a discount in rent. Further your property may be subject to Oakland's Just Cause for Eviction Ordinance which governs the basis for evictions for certain rental units located in the City of Oakland. Therefore, be weary of any advice you receive from someone who is not familiar with local rent and eviction control ordinances, or proper procedures for evictions based on non-payment of rent when there may be legitimate breaches of the implied warranty of habitability on the Premises. You would be well advised to hire a licensed home inspector to inspect the property and make sure that there are no legitimate defects on the property. You would also be well advised to contact a local attorney familiar with Oakland's Just Cause for Eviction Ordinance.

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  • There is a guy living in my daughter's garage in Oakland. It was bank owned and we bought it in June. He will not leave.

    The bank and realtor said we could evict him for 5 thousand dollars. 5,000 down and he won't leave. We have to file an Unlawful Detainer and it could cost up to 20,00 for that. He is mentally ill or a super creep. My daughter s only 27 and wor...

    Marc’s Answer

    In Oakland a rental unit is exempt from eviction control if there are three or fewer "rental units" on the property, and an owner of record lives on the property as her primary residence. It sounds like your daughter my want to claim this exemption from the just cause for eviction ordinance, and evict under a 30 or 60 day notice. Unlawful detainers in Oakland tend to be easier to manage if the tenant is exempt from eviction control.

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  • In California (San Francisco), I am the master tenant, may I evict my roommate or have courts have him stop harassesing me?

    I moved in the apartment one yr and half before my roommate. He now wants to live in apt. by himself or to get another roommate, and is harrassesing me and trying to make my life miserable. He has called the police more than once and fire depart...

    Marc’s Answer

    I am a San Francisco Attorney who practices Landlord Tenant Law. Evicting a subtenant is possible but may be difficult depending on your situation. First you need to check to see if your rental unit falls under the San Francisco Rent Ordinance. If it does you will need to have "Good Cause" to evict your sub-tenant.

    Typically, a unit is exempt from "Good Cause" to evict if the Owner or Master/Tenant shares a kitchen or bathroom with the tenant/sub-tenant. However this exemption does not apply unless the Owner or Master Tenant gave notice to the tenant/subtenant that the unit is exempt from the Good Cause for eviction requirement. If the unit is otherwise subject to Good Cause eviction, and such notice was not given in writing and at the outset of the tenancy, then the Owner/Master tenant will need to have Good Cause to evict his tenant/subtenant in order for his/her unlawful detainer complaint to be actionable.

    There are several other issues you will need to be aware of before you decide to evict your roommate. You should speak with an attorney who practices Landlord Tenant Law in San Francisco to review your case and advise you on your rights.

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  • Living in an apartment for 20+ years without a lease; why does the landlord want one now?

    My family has been living in a 4 unit apartment building for more than 20 years and for some unknown reason, there was never a lease nor a security deposit. We are a family of immigrants, although US citizens, it is just that my parents do not hav...

    Marc’s Answer

    • Selected as best answer

    I am a San Francisco Attorney. In essence it appears that you have an oral month-to-month tenancy agreement which is protected by Rent and Eviction control ordinances. Whether your lease is oral or written, your landlord must have "Good Cause" to evict you.

    One Good Cause to evict a tenant is when a tenant refuses to sign a new rental agreement which is substantially similar to the last agreement. The San Francisco Rent Ordinance states a landlord may evict a tenant:

    "....[W]ho had an oral or written agreement with the landlord which has terminated, [and] has refused after written request or demand by the landlord to execute a written extension or renewal thereof for a further term of like duration and under such terms which are materially the same as in the previous agreement; provided, that such terms do not conflict with any of the provisions"

    Therefore since your last agreement was oral, only the terms of the oral agreement may be deduced into a written contract including the rental price of the unit. Otherwise if any new or unfamiliar terms are added the new written lease may not be "substantially similar" to the old oral lease.

    Please do not sign any agreement with your landlord unless you have a local attorney who is familiar with San Francisco Rent Control Law review the proposed written lease agreement.

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  • Does my landlord have to replace the dishwasher?

    The dishwasher is included in the amenities according to the lease, but the landlord said she's not liable. The lease says that tenants are not allowed to do repairs. What can I do?

    Marc’s Answer

    Both answers are correct to an extent.

    The landlord does not have to replace your dishwasher since it does not affect the habitability of your unit. However, removal of a dishwasher during a tenancy is a decrease in services, and is grounds to petition the Rent Board for a rent reduction (I've included a link to the proper petition below)

    Best of Luck.

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  • Can a landlord charge for house chores not done and for petty things like carpet shampoo, washing windows and doors?

    Please note that I vaccumed my carpet and left no spots(There weren't any). I also cleaned windows and mirrors and dusted the doors. 1. He has held $95 for carpet cleaning(without any receipt sent to me with itemized list) and charged $56 ...

    Marc’s Answer

    A landlord need not itemize deductions from a security deposit if the total deductions for cleaning and repairs do not exceed $125. Anything over this amount must be itemized. Since the sum total for cleaning and repairs charged by your landlord exceeds this amount, then he must provide an itemized list of deductions with receipts.

    As for the addendum to your lease, it sounds like a liquidated damages clause (a clause that pre-determines damages in the event of a breach). Unless it was stated in your contract that you performing chores was part of your rent, then you are under no duty to pay liquidated damages for each weekly chore missed. If it is stated in your contract that these chores must be completed as part of the rent, and you admit to not completing them, then you are likely liable for these damages.

    However, unless these liquidated damages can be classified as rent, their deduction from your security deposit is impermissible. A security deposit can only be used for cleaning, repairs and unpaid rent. These $40 deductions from your security deposit are questionable.

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  • The building i rent a unit in was put up for sale one month after i negoitated a yearly lease with the owner.what are my rights

    regarding allowing access to the realtor to show the apt to prosceptive buyers? the real estate agent has let himself into my home without prior consent twice now. somehow managing to open up an inside slide bolt on my front locked gate (to get in...

    Marc’s Answer

    Under California law a landlord or his/her agent may enter a tenant's dwelling unit to show the unit to perspective purchasers. However a 24 hour notice is required and must state:

    -the date of entry; and
    -time of entry, and
    -the purpose of entry.

    There are special provisions for real estate agents allowing them to notify you of showings via telephone, and requiring them to leave physical evidence (such as a note or a business card) that they were in your home.

    Failure to abide by these laws subject landlords to lawsuits for breach of the covenant of quiet enjoyment and/or trespass.

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  • Do I need an attorney?

    My mother leased an apartment under her name for my sister. At some point, the husband moved in and filed a restraining order against my sister removing her from the property and he claims to be a resident when we asked him to leave. The utiliti...

    Marc’s Answer

    Your other option, is possibly using the fact that your mother (who has a right to live in the apartment) has a restraining order against this individual. She may be able to go to the property with the police and compel him to leave. However, if he has established residency this may be difficult to do.

    If your sister's husband has lived in the apartment for longer than 30 days then under California law he has established residency, and the only lawful way to remove him from the property is an unlawful detainer action.Filed by your mother as the master tenant.

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  • Who do I report a landlord that rents an unsafe home and neglets to fix problems such as termites, mold, gas and water leaks.

    there is postings on the water heater of it being unsafe to have on by gas company and the pest control company left a big sticker that says the house needs to be tented. We have termites coming out of light fixtures and other areas, the carpet al...

    Marc’s Answer

    This sounds like a very serious problem and what we call in the legal field, a breach of the Implied Warranty of Habitability.

    You should start by documenting these problems with photos, videos, and eye witness accounts. Furthermore, start sending your landlord emails or letters describing the problems you are having. You should also contact your local health and building code inspectors and ask them to come out and inspect the premises. Finally, you need to speak with a landlord tenant attorney about legal causes of action you may have against your landlord.

    If you fear retaliation from your landlord - don't. Stand up for your health and the health of your family. Besides your landlord can only raise your rent 10% a year in California, and if he/she decides to evict you have some very good defenses. In particular if you end up reporting these issues to the building/health department, you can claim that the eviction is retaliatory, and your landlord could face substantial consequences for attempting to evict you.

    Good Luck

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  • Question about landlord holding part of my security deposit. Please read and suggest what can I do?

    Hi, I received a vacation notice on Dec 31st,2010 for my room in a 6 bedroom house on a room shared basis. It said to vacate the house on Jan 31st,2011 by 12:00 PM. The house is located in San Jose, CA. I asked the landlord if he can extend ...

    Marc’s Answer

    Deductions for Rent
    Your landlord cannot charge you for rent for anything beyond January 31, 2011, unless you were living there after this date. Otherwise it is what can be considered bad faith retention of a security deposit, and you can sue your landlord for up to three times the amount of the security deposit.

    Deductions for Cleaning and Repairs
    As for repairs and cleaning, a landlord can charge up to $125 in cleaning without having to invoice work or supplies, anything deducted for cleaning and repairs need to be itemized and backed by invoices and receipts.

    Also your landlord should have offered you an initial inspection where your landlord would a have to show you what he plans on deducting from your security deposit.

    For more information on this topic please see my legal guide on this subject see the link labeled Legal Guide to Security Deposit

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