Having an experienced landlord attorney, in this case Daniel Bornstein with the Law Offices of Bornstein & Bornstein, is what saved the day.
The landlord in this case filed for eviction once he discovered that several unauthorized occupants were living in the rental property.
However, the tenant contested the eviction, claiming that he was the victim of racial discrimination, that the landlord was violating the city’s rent stabilization rules, and also raising claims regarding the condition of the property, including bug infestations that he said the landlord allegedly either knew about or should have known about. The tenant also claimed that the landlord had waived his right to protest the subletting violation.
The parties entered into a written agreement in 1990. According to the landlord, the tenant sublet the premises to eight other individuals without the landlord’s permission. The tenant argued that the landlord either knowingly permitted the subletting to occur, or waived his right to enforce the subletting provision.
The lease agreement contains a restriction on subletting, requiring that the landlord agree in writing to any new occupants. According to court records, the landlord did not provide such written authorization.
The agreement also contains a non-waiver provision. Bornstein points out that it is critical for landlords to understand the waiver issue, and include non-waiver language like the provision below in the lease agreement:
NO WAIVER: No failure of Owner to enforce any term of this Agreement will be deemed a waiver of that term or of any other term of the Agreement. The waiver by Owner of any term of this Agreement will not be deemed to be a waiver of any subsequent breach of the same or any other term of this Agreement, nor will any custom or practice which may develop between the parties be construed to waive or to lessen the right of Owner to insist upon performance by Tenant of all the provisions of this Agreement, or support a claim of detrimental reliance by Tenant. The subsequent acceptance of rent by Owner will not be deemed to be a waiver of any preceding breach by Tenant of any term of this Agreement regardless of Owners knowledge of such preceding breach at the time of acceptance of such rent. Owners acceptance of a partial payment of rent will not constitute a waiver of Owners right to the full amount due nor will Owners acceptance of rent paid late ever constitute a waiver of Owners right to evict Tenant for habitual late payment of rent.
The landlord was successful in rebutting the tenant’s claims, proving that no such subletting authorization was granted, nor had he waived his rights by accepting rent or other actions. The judge found in favor of the landlord and ordered the eviction to proceed.
Bornstein adds that after many years of feeling victimized by the tenant’s conduct, his client finally recovered control over his San Francisco Rent Controlled Unit, and preserved his real estate investment.
Bornstein & Bornstein provides experienced legal representation for landlords in San Francisco and the Bay Area. Contact the firm at 415-409-7611 or email Daniel Bornstein at Daniel@bornsteinandbornstein.com.
With AAOA, landlords have resources at their fingertips. Check out our Landlord Forms page.
American Apartment Owners Association offers discounts on products and services for landlords related to your rental housing investment, including rental forms, tenant debt collection, tenant background checks, insurance and financing. Find out more at www.joinaaoa.org.