March 19, 1996

I. Call to Order

President Becker called the meeting to order at 5:40 p.m.

II. Roll Call

Commissioners Present: Becker; Bierley; Gruber; Lightner; Marshall; Mosser; Murphy; Palma; Wasserman.
Staff Present: Grubb; Wolf.

III. Approval of the Minutes

MSC: To approve the Minutes of March 5, 1996.
(Marshall/Gruber: 4-0)

IV. Consideration of Appeals

A. 19 Noe St., Apt. B Q001-37A

The tenant’s petition alleging unlawful increases in rent was granted and the landlord was found liable to the tenant in the amount of $10,017.75 due to PG&E passthroughs being incorrectly calculated and improperly included in base rent for purposes of calculating annual increases. On appeal, the landlord asserts that the wrongful increases were de minimus and the result of a procedural error by the prior owner, which has resulted in a windfall to the tenant; that the equitable doctrine of laches should apply to bar the tenant’s recovery because the tenant knew of the existence of the Rent Board as far back as 1988 but failed to assert his rights; and that the hearing officer is mistaken in finding that the only harm to the landlord is economic.

MSC: To accept the landlord’s appeal for Board hearing. The landlord is instructed to bring a copy of the Purchase Agreement for the property to the hearing; the hearing officer will provide a chart showing the exact amount of rent overpayments.
(Lightner/Gruber: 3-2; Becker, Palma dissenting)

B. 99 Jersey St. #1, 4, 6, 8, 9, 11, 14 & 16 Q001-40A;
Q001-38R thru -45R

The landlords’ petition for certification of capital improvement costs was granted, in part, by the hearing officer. The landlords appeal the decision as to unit numbers 1, 4, 6 and 14, asserting that: because of a typographical error, the tenants’ move-in dates were incorrectly entered, and the 6-month Rule contained in Rules Section 7.12(b) should not bar these tenants’ eligibility for the passthrough of roofing insulation costs; and a Technical Correction to the decision is necessary to reflect the fact that passthroughs approved in a prior case were not imposed to the tenants in unit numbers 8, 9 and 16. The tenants appeal the decision on the grounds that the landlord’s representative did not have written authorization, and therefore the petition should have been dismissed in its entirety; and, since the tenants did not receive copies of the landlords’ amended petitions, due process requires that the increased amounts noticed in those petitions should not be granted.

MSC: To accept the landlords’ and tenants’ appeals as follows: to remand the case to the hearing officer for any necessary technical and numerical corrections on the record, if possible; a hearing will be held only if necessary. On the issue of the roofing insulation costs, the hearing officer will determine whether or not a petition was filed to pass through the costs of this item to the tenants of unit numbers 1, 4, 6 and 14; if not, then no passthrough of these costs will be allowed without the landlord filing a new petition. If these costs were petitioned for passthrough to the tenants of these units, then a hearing will be scheduled and copies of both of the landlords’ amended petitions will be provided to the tenants with the Notice of Hearing. The appeals are denied as to all other issues. (Gruber/Lightner: 5-0)

C. 2286 Jackson St. #4 Q001-47R

The tenant’s appeal was filed one day late because the tenant believed that it was sufficient to have mailed the appeal and have it postmarked within the 15-day mandatory filing period.

MSC: To find good cause for the late filing of the appeal.
(Gruber/Becker: 5-0)

The tenant’s petition alleging decreased housing services was denied either because repairs were effectuated by the landlord in a timely fashion, the tenant failed to give notices that the repairs had not remedied the problem originally complained of and/or the problems were not deemed sufficiently substantial to warrant reductions in rent. A claim of unlawful rent increase was rendered moot by the tenant having vacated the premises. The tenant prevailed on the issue of the landlord’s failure to repair due to the existence of a leak in the unit, for which the landlord was cited by the Department of Building Inspection. The tenant appeals, asserting that the hearing officer legally and factually erred in not finding that the tenant had suffered substantially decreased housing services as a result of the landlord and managers’ unwillingness and refusal to respond to the tenant’s reasonable requests; that the burden of proof is extremely onerous; that the property manager lied under oath; and that the hearing officer ignored or lost the tenant’s unrebutted documentary evidence.

MSC: To deny the appeal. (Gruber/Lightner: 5-0)

D. 3374 - 21st St. Q001-46R & Q001-36A

The tenant filed a petition alleging thirty-three separate items of decreased housing services. The hearing officer found four of the claims to be substantial, and granted rent reductions totaling $2,760.00 due to stained and mildewed walls and ceilings, a deteriorated bathroom, windows in disrepair and a malfunctioning freezer. The landlord filed an appeal, which was withdrawn prior to the Board meeting. The tenant also filed an appeal, asserting: that the amount granted for the stained walls and ceilings and mildew condition is inadequate because a substantial amount of water leaks into the unit whenever there is heavy rain; that there are many factual errors in the decision; that the Department of Building Inspection failed to cite the landlord for security problems on the premises because they "do not deal with security issues"; and that she and her room-mate are being constructively evicted from the premises due to the conditions complained of in her petition.

MSC: To deny the tenant’s appeal. (Gruber/Lightner: 5-0)

E. 241-243 Collingwood St. Q001-38A

The landlord of 3 Proposition I Affected Units under Ordinance Section 37.12 filed a petition for rent increases based on increased operating expenses. The hearing officer granted increases in the amount of 3.3%, rather than the maximum allowable 7%, because the landlord could not fulfill the burden of proving several categories of expenses due to a lack of documentation from the prior owner. Banked increases from an alleged period of exemption due to owner-occupancy were also disallowed. On appeal, the landlord asserts that the hearing officer made multiple factual and calculation errors in the decision; that he should not be penalized due to the insurance company’s refusal to cooperate, the loss of pertinent records and the death of the prior owner; and capital improvement costs incorrectly categorized as repairs could be separated out, so that an increase would be found warranted for this category.

MSC: To accept the landlord’s appeal and remand the case to the hearing officer for any necessary technical corrections, as well as for a determination regarding banked increases available to the landlord because of a mistake in the decision as to the date of death of the prior owner; the appeal is denied as to all other issues. (Palma/Marshall: 5-0)

F. 935 Kearny St. #82 Q001-39A

The tenant’s petition alleging substantial decreases in housing services in this residential hotel was granted, in part, and the landlord was found liable to the tenant in the amount of $940.00 due to the failure of the landlord to provide a clean mattress and ceiling leaks. Additionally, rent overpayments in the amount of $159.67 were determined to be owing to the tenant from the landlord. The tenant’s failure to repair claim was denied because none of the conditions complained of were found to constitute violations of state or local law. The landlord appeals the decision, alleging that the mattress was acceptable to the tenant at the time he rented the unit and a new, as opposed to replacement, mattress was never promised; and that the leaks were repaired as soon as the landlord received notice of the problem from the Department of Building Inspection.

MSC: To deny the appeal. (Marshall/Palma: 5-0)

G. 2011 Sacramento St. #5 Q001-41A

The tenant’s petition alleging substantially decreased housing services was granted and the landlord was found liable to the tenant in the amount of $2,900.00 due to roof leaks and resulting water damage. The landlord had promised the tenant that the roof leaks would be repaired prior to her occupancy of the unit, and the parties came to an agreement that reduced the base rent by $50.00 per month since the repair work had not been done. At issue was whether or not this reduction in rent was meant to be permanent or temporary; the hearing officer held it to be permanent. On appeal, the landlord asserts that a $50.00 per month rent reduction during the summer months is excessive because the habitability of the unit is not compromised when it is not raining; as is the $100.00 per month rent reduction during the winter months, because the base rent was already reduced by $50.00.

MSC: To deny the appeal. (Gruber/Palma: 5-0)

H. 124 Pfeiffer St. Q001-48R; Q001-42A

The landlord’s petition for a rent increase to the tenant of one condominium unit was granted. In addition, rent overpayments in the amount of $1,050.72 were determined to be owing from the landlord to the tenant. The landlord appeals the portion of the decision requiring that new 30-day notice be issued in order to impose the increase, because the landlord’s petition was filed after the notice of rent increase had been issued to the tenant instead of before. In response to the landlord’s appeal, the tenant files an appeal to any retroactive application of the operating expense increase, claiming that allowing the increase retroactive to the date of the landlord’s notice would present her with a financial hardship.

MSC: To deny both the landlord’s and tenant’s appeals. (Marshall/Becker: 4-1; Gruber dissenting)

V. Communications

The Commissioners received several pieces of correspondence regarding cases on the calendar.

VI. Director’s Report

Executive Director Grubb welcomed the new Commissioners, circulated a roster to obtain their mailing addresses and informed them that they are eligible for health and other benefits through the City. He also informed the Board that Rent Board information is now published in the "Bay Area Rental Guide", which can be obtained at supermarkets.

VII. Old Business

In deference to the presence of the new Commissioners, discussion of the Costa-Hawkins Bill (AB 1164) was continued to the next meeting.

VIII. Remarks from the Public

Robert Pender of the Tenants’ Network welcomed the new Commissioners and provided all Board members with the most recent issue of the "Tenant Times."

IX. Calendar Items

March 26, 1996 - NO MEETING

April 2, 1996
5 appeal considerations
Old Business: Costa-Hawkins Bill (AB 1164)

X. Adjournment

President Becker adjourned the meeting at 8:00 p.m.