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September 05, 2000

September 05, 2000p> 

 

MINUTES OF THE REGULAR MEETING OF
THE SAN FRANCISCO RESIDENTIAL RENT
STABILIZATION & ARBITRATION BOARD,

Tuesday, September 5, 2000 at 6:00 p.m. at
25 Van Ness Avenue, Suite 70, Lower Level

I. Call to Order

President Wasserman called the meeting to order at 6:12 p.m.

II. Roll Call

Commissioners Present: Becker; Gruber; Hobson; Marshall; Wasserman.

Commissioners not Present: Justman; Lightner; Mosser.

Staff Present: Grubb; Winslow; Wolf.

Commissioner Murphy appeared on the record at 6:17 p.m.

III. Approval of the Minutes

MSC: To approve the Minutes of August 22, 2000.

(Becker/Gruber: 4-0)

IV. Remarks from the Public

    1. Lynn Elman, the landlady involved in the case at 436 B Haight St. (AT2K0114; AL2K0113), informed the Board that the period that the premises were without a roof was one month, and not 4 months; that the color photos showed the real situation regarding the lack of natural light in the unit; and that the rent reduction in the amount of $50.00 per month would present her with a hardship.
    2. Karen Uchiyama, attorney for the landlord in the case involving 1369 Hyde St. #73 (AL2K0110), stated her opinion that the Administrative Law Judge had mischaracterized the case as a simple 6.14 case, when it was a question of interpretation of contracts.
    3. Tanya Ridgley spoke on behalf of Lynn Elman, saying that she had watched Ms. Elman be adversely affected by her dealings with the tenants at the property, and that the situation was unhealthy and exhausting.
    4. Lena Lettinger, the tenant in the other unit at 436 Haight St., spoke in support of the tenant appellant, Lyza Chavez', claim. She cited "disrespectful" behavior on the part of the landlady, and said that there had previously been direct sunlight into the units from March through October, but now there was none.
    5. Lyza Chavez, the tenant at 436 B Haight St., said that she had tried to accommodate the construction project by switching her schedule. Ms. Chavez believes that the landlord's pattern of attempted entry without notice and other harassing incidents were done with the intention of driving the tenants out.
    6. Peter Fatooh, representative of the landlord at 34 Lloyd St. (AL2K0115), maintained that: the marital status of the tenant in the case was irrelevant and cited by the Administrative Law Judge to evoke sympathy, whereas the fact that the landlady is 80 years old was never brought up. Mr. Fatooh informed the Board that the tenant's $328.00 rent will lead to sale of the building and probable removal of the rental units via the Ellis Act.
    7. Mark Entieri, attorney for Chandler Properties, asked that the Board correct the record in the case at 1369 Hyde St., because Chandler Properties is only the agent for the landlord, and not the landlord. He also stated his opinion that the case should be remanded to determine market rent for the unit in March, 1996.
    8. Robert Sheppard, attorney for the tenants at 1369 Hyde, complemented the professionalism of Administrative Law Judge Lela Harris, who decided the case.

V. Consideration of Appeals

A. 1369 Hyde St. #73 AL2K0110

(cont. from 8/1/00)

The tenants' petition alleging an unlawful increase in rent from $1,206.06 to $3,800.00 per month was granted because the Administrative Law Judge determined that the tenants commenced occupancy prior to January 1, 1996 and an original tenant still remained on the premises; therefore, the landlord was not entitled to an increase pursuant to Costa-Hawkins nor Rules Section 6.14. On appeal, the landlord argues that: the Decision is based solely on Rules and Regulations Section 6.14, with no weight given to the landlord's arguments regarding contracts and case law; the Decision was based on hearsay; the Administrative Law Judge proceeded as though it were the respondent who had the burden of proof in this case; the tenant should not acquire the status of "original tenant" by misrepresenting herself as one; the landlord did not waive his right to raise the rent by failing to do so, because he did not have actual knowledge that the last original tenant had vacated the unit; and the Decision is based on equity, and ignores the written contracts between the parties.

MSC: To recuse Commissioner Murphy from consideration of this appeal. (Marshall/Becker: 5-0)

MSC: To deny the appeal, except to remand the case on the record to correct the caption to the Decision, since Chandler Properties is the agent for the landlord, but not the landlord in the case. (Becker/Marshall: 3-1; Gruber dissenting)

 

B. 436 B Haight St. AT2K0114; AL2K0113

(cont. from 8/1/00)

The tenant's petition alleging substantial decreases in housing services was granted, in part, and the landlord was found liable to the tenant in the amount of $768.50. On appeal, the landlord asserts that the amount of the rent reduction granted due to decreased lighting is excessive and for too long a period of time; the tenant has received additional services due to the construction work performed on the premises; there are certain erroneous statements in the Decision; and the tenant contributed to the untidy condition of the yard, although the landlord does not appeal the amount granted as to this issue. The tenant also appeals, claiming that her claims of elimination of privacy and quiet enjoyment, mailbox problems, interruption of gas service, unauthorized entry and harassment were not sufficiently looked at by the Administrative Law Judge.

MSC: To deny the tenant's appeal. To accept the landlord's appeal only to remand the case to the Administrative Law Judge on the record in order to correct the commencement date for the rent reduction due to loss of natural light to October 1, 1999. (Becker/Marshall: 3-2; Gruber, Murphy dissenting)

C. 34 Lloyd St. AL2K0115

(cont. from 8/1/00)

The tenant's petition alleging an unlawful rent increase from $328.00 to $950.00 was granted because the Administrative Law Judge found that the petitioner was a tenant, and not an assignee, and therefore the rent increase was not warranted pursuant to the Costa-Hawkins Rental Housing Act. On appeal, the landlord maintains that: a subjective description of the petitioner's personal status in the Decision has the appearance of bias; the petitioner failed to seek permission to move into the unit from the landlord, and did not inform the landlord of her status as a roommate in the unit; and the petitioner is attempting to take advantage of the elderly landlady in this case.

MSC: To deny the appeal. (Becker/Marshall: 3-2; Gruber, Murphy dissenting)

D. 223 Lily St. AL2K0134

The landlord's petition for certification of the costs of new rear stairs and a new roof was granted. The landlord appeals denial of a $300 expenditure for removal of a chimney, asserting that the cost was incurred in conjunction with the roof work, and that removal of the chimney constituted an upgrade to the roof.

MSC: To recuse Commissioner Hobson from consideration of this appeal. (Becker/Marshall: 5-0)

MSC: To accept the landlord's appeal and remand the case to the Administrative Law Judge on the record to certify the costs associated with removal of the chimney. (Murphy/Gruber: 5-0)

E. 300 Hyde St. AL2K0133

The landlord's petition for certification of the costs of a seismic retrofit project was denied because the Administrative Law Judge found that the petition had been filed more than five years after completion of the work. On appeal, the landlord claims that the warranty for the roof is the proof of the completion date; and that the landlord will provide additional signed affidavits from the roof company and previous building manager to prove that the new roof was part of the retrofit project.

MSC: To accept the landlord's appeal and remand the case to the Administrative Law Judge on the record only to certify the costs of the new roof. (Becker/Marshall: 5-0)

F. 1080 Post St. AL2K0112

(cont. from 8/1/00)

The landlord's petition seeking a determination as to whether the rent for the unit could be raised to "market" based on Costa-Hawkins and Rules Section 6.14 was denied. The Administrative Law Judge (ALJ) determined that a rent increase given during a period when the original tenant had vacated the unit, but family members were residing there, constituted the rent increase that the landlord was allowed pursuant to Costa-Hawkins. The landlord appeals, claiming that: the tenants coached each other to ensure that their responses matched each others' at the hearing; it was inappropriate for the ALJ to attempt to ascertain the amount of the rent increase the landlords were intending to impose; the Decision is in error regarding the circumstances surrounding the first rent increase given by the landlord; the Rent Board Rules and Regulations require that a 6.14 notice be served upon the tenant prior to a rent increase being issued pursuant to Costa-Hawkins, and the landlord had not served such a notice at the time the first rent increase was given; the landlord's acceptance of rent should not operate as a waiver of their right to raise the rent because no written notice was given of the subtenants' occupancy of the unit; the Decision is incorrect in stating that a 3-Day Notice to Pay Rent or Quit was issued for the amount of the first rent increase, rather than the subsequent increase to market rent; and it is illogical to conclude that the earlier rent increase constituted the Costa-Hawkins increase when other units in the building were renting for a much higher rate at that time.

MSF: To deny the appeal. (Marshall/Becker: 2-3; Gruber, Murphy, Wasserman dissenting)

MSC: To accept the appeal and remand the case for a hearing to take evidence on the rent history and the circumstances surrounding the rent increase to $510.00; both parties are encouraged to provide translation at the hearing. (Murphy/Wasserman: 5-0)

G. 2033 Turk St. AL2K0131

The tenants' petition was granted and the landlord was found liable to the tenants in the amount of $768.81 due to an unlawful rent increase and $2,090.00 for decreased housing services in the unit. On appeal, the landlord maintained that the issue of the unlawful rent increase was resolved at a mediation session conducted prior to the subject hearing, and that the tenants deducted amounts owing from the landlord from their rent; and that the length of time given for rent reductions was excessive, as the services were restored shortly after notice of the defective conditions was given to the landlord by the tenants. The landlord's appeal was accepted and remanded to the Administrative Law Judge to determine the intent of the parties with respect to the rent overpayment issue, and make any necessary offset against amounts owing from the landlord to the tenants. In the Decision on Remand, the landlord's liability was reduced by the amount already deducted by the tenants from their rent. The landlord appeals the remand decision as to the length of time granted for rent reductions due to decreased housing services, claiming not to have received notice of the conditions until receipt of written notice and/or a Notice of Violation from the Department of Building Inspection.

MSC: To deny the appeal. (Becker/Murphy: 5-0)

H. 436 Fell St. AL2K0130

One tenant's petition alleging an unlawful rent increase was granted because the Administrative Law Judge found that no 6.14 notice had been served on the tenant, although the landlord had known of his occupancy in the subject unit and accepted rent from him for an 18 month period. Additionally, no increase was justified pursuant to Costa-Hawkins because the tenant was not a subtenant or assignee, and resided in the unit pursuant to an agreement with the landlord. A petition filed by another occupant of the unit was denied due to lack of standing, because there was no evidence that that tenant had a rental agreement directly with the landlord. On appeal, the landlord claims that the lease that was tendered with the tenant is not in effect, because the tenants allegedly did not sign and return it for 18 months; and that a letter was sent informing the tenant that he was not the Master Tenant and that the lease between the original occupants of the unit was still in effect. The landlord maintains that a new tenancy was therefore established and he should have the right to raise the rent to market.

MSC: To deny the appeal. (Marshall/Becker: 4-1; Gruber dissenting)

I. 1593 McAllister #301 AT2K0132

The tenant's petition alleging decreased housing services was dismissed because the tenant arrived 3 hours late for the hearing. On appeal, the tenant, who no longer resides in the unit, claims not to have received notice of the hearing because it was mailed to the wrong address.

MSC: To deny the appeal without prejudice to re-filing; since he has vacated the unit, the tenant is advised to consult with a Rent Board staff member regarding enforcement of the Decision prior to re-filing. (Murphy/Becker: 4-1; Gruber dissenting)

  1. Appeal Hearing

123 Sanchez St. #8 AT2K0083

(acpt. 6/20/00)

The tenant's petition alleging an unlawful rent increase was granted because the Administrative Law Judge found that the tenant's rent included parking. The Board accepted the landlord's appeal and remanded the case to consider the equitable defense of laches. However, since the tape of the original hearing could not be located, and the parties disputed what was said at that hearing, a new hearing was held and a new Decision issued. In that Decision, a different Administrative Law Judge found that the tenant had failed to prove that his initial base rent included parking and that the rent increase for parking was therefore lawful as it was an additional housing service added after the commencement of the tenancy. The tenant appealed the remand decision, asserting that: the tenant was not given equal time at the hearing to respond to the landlord's slanderous allegations; documents submitted by the landlord were fraudulent; and the prior building manager routinely offered parking spaces at no additional charge when they became available. The tenant's appeal was accepted for a de novo Board hearing, with each side instructed that they had no more than one hour to present their case.

The appeal hearing commenced at 7:30 p.m. and concluded at 9:45 p.m. In attendance were the tenant, the landlord, the landlord's attorney and witnesses for the landlord. The tenant testified that he was led to believe by the prior resident manager that his initial base rent included parking, although a space would not become available until a later date. Therefore, the $85.00 charge for parking constituted an unlawful rent increase. The landlady asserted that parking charges were always additional and kept separate from apartment rents; that she had no knowledge of any agreement between the tenant and the prior resident manager; and that the tenant had paid for parking for three years, and now wanted out of the contract. After discussion and consideration of the testimony and documentary evidence, the Board passed the following motion:

MSC: To deny the tenant's petition. (Murphy/Gruber: Becker, Marshall dissenting)

VII. Communications

In addition to correspondence concerning cases on the calendar, the Commissioners received the following communications:

  1. The office workload statistics for the month of July, 2000.
  2. A new staff roster.
  3. An order of the California Supreme Court depublishing the case of Cabinda v. Santa Monica Rent Control Board.

VIII. Director's Report

Executive Director Grubb informed the Board that he will be on vacation from September 6th through 15th.

IV. Remarks from the Public (cont.)

    1. Lynn Elman told the Board that the acceptance or denial of an appeal shouldn't be based on whether or not the Commissioners believe the Administrative Law Judge to be correct, but on the evidence submitted.
    2. Tanya Ridgley spoke again on behalf of Lynn Elman, stating that the Board's decision seriously affects peoples' lives; that the tenants are "using the system"; and that landlords should be able to choose who lives in their building.

IX. Calendar Items

September 12, 2000 - NO MEETING

September 19, 2000

9 appeal considerations

X. Adjournment

President Wasserman adjourned the meeting at 10:30 p.m.

 

Last updated: 10/9/2009 11:26:13 AM