The crime wave in the Bay Area has garnered national attention and voters will soon decide the fate of San Francisco's District Attorney.

What landlords and property managers need to understand is that they are responsible for the properties they own and manage and address unacceptable conduct, whether a crime is prosecuted or not.

In a criminal matter, the prosecution has to prove the defendant is guilty beyond a reasonable doubt. This is a rather tall bar. Contrast this with a civil action such as an unlawful detainer (eviction). The plaintiff - the landlord - need only prove their case by a preponderance of the evidence.

Landlords can and must take proactive action whenever crime, violence, or domestic flare-ups occur in rental units. If the owner or property manager puts their head in the sand and does not address the incidents that arise, there is a potential for colossal liability when a member of the community is harmed.


Notice to cure or notice to quit?

When there is misconduct in the rental unit, a fundamental question is whether to serve a 3-day notice to cure the underlying behavior or if the conduct is so egregious and poses such a high threat to others that a 3-day notice to quit is more appropriate. This is a judgment call, and we are happy to dialogue with you.

A one-off late-night party, unauthorized pets, playing loud music at night, minor damages to the premises, trash not being properly disposed of, and other minor lease violations typically will warrant a 3-day notice to cure or quit. Embedded in the notice is the right to correct the nuisance behavior.

A three-day notice to quit is a much more aggressive notice by telling the tenant he or she has three days to vacate the unit, without any opportunity to "clean up their act." We are talking about arson, drug dealing, violence, domestic disputes with an imminent threat, vandalism, prostitution, gang-related activity, stealing packages out of the mailroom, and so forth.

There are many landlord-tenant attorneys in the Bay Area, but Bornstein Law has developed a core competency in handling these types of nuisance behaviors.

Which notice to serve is a consequential decision that should not be taken lightly. Once a 3-day notice to quit is served, the landlord is going down the path of eviction and this may be a costly process. Moreover, not a penny in rent can be accepted in the drastic measure of serving this notice. We are happy to make this evaluation with you and determine how real and foreseeable a threat is.

From our hard-won experience, past behavior is the best predictor of what will occur later - there is a high recidivism rate for nuisance behavior.

At any rate, notices must be properly prepared and landlords are strongly advised to have an attorney draft it up; there are brilliant and zealous tenant attorneys hellbent on finding errors in the notice and even if the nuisance can be proved with a preponderance of the evidence, the landlord can still lose the eviction action because there were donut holes in the preparation or service of the notice.

It's also critical to build a storyline by clearly laying out the nuisance behavior in a clear, compelling fashion. Bornstein Law can assist in establishing a fact pattern in a cohesive way for a judge or jury to consider.


Defenses tenants or their attorneys can raise

The first and most likely defense is either that the nuisance never happened, or the behavior is not so serious that it should result in the termination of the tenancy.

Evidence that landlords can assemble to prove a nuisance includes credible eyewitness accounts, police reports, video recordings, photos of any damage, and the like. Yet there is a concern for retaliation if a witness testifies; the potential witness fears retribution for being a “snitch.”

In concert with our clients, we want to assure any witnesses that their name need not be revealed in the filing of a 3-day notice to quit - we can build a case without naming the bystander who can substantiate the nuisance, as long as he or she is credible.

95 out of 100 times, eviction actions settle, and this figure should further assuage the concerns of witnesses. There is a high probability that his or her testimony will not be required.

We know that the witness may still be fearful of being hurt and plaintiffs have to recognize this concern. If there is a plane crash 5 out of every 100 flights, no one in their right mind would get on a plane.

However, if the case goes to trial, we will make it clear that our office subpoenaed the witness. They were compelled to come to court and do not necessarily come of their own free will. We like the coverage of a subpoena because the optics are that the complainer did not initiate the dispute - they are merely showing up to court when ordered to do so.

Generally speaking, however, a witness must have the courage to come forward and testify under oath as to the nuisance conduct in order to accomplish the landlord’s goal of a vacancy. When there is narcotics trafficking, it is especially concerning for anyone witnessing the revolving door of patrons buying drugs, but another point to stress to witnesses is that when a formal notice is served upon drug peddlers, it is likely to spook them and more often than not, they will cease their narcotics business and open up shop elsewhere.

Bottom line: as long as we are confident that there is something nefarious going on, Bornstein Law will act upon it and we don't initially have to name any witnesses at the outset. Whoever has an account of events can remain anonymous.


Another defense that can be argued is that the tenant engaging in a nuisance has a mental disability

While a disabled tenant would ordinarily be afforded special protections under fair housing laws - the landlord normally has to accommodate the disability - Bornstein Law has successfully argued that some conduct cannot be accommodated.

For sure, there is a legitimate interest in providing housing for a disruptive tenant who professes a disability, maybe to get his or her medication stabilized. Yet some threats are so dangerous and imminent, that public health safety trumps the goal of assimilating that person into the building.

Can a reasonable accommodation be made by putting in more insulation to muffle noise, or moving the problematic tenant to another part of the building, for example? Perhaps. Perhaps not. But some instances have an easy answer.

Pouring lighter fluid in the building and attempting to light it with a match leads to a rather clear-cut decision to serve a notice to quit. Firing a gun, brandishing a knife, smashing a window with a baseball bat, or making death threats is also grounds for serving a notice to quit. We can go on, but you should get the picture.


Let's talk about Temporary Restraining Orders (TROs)

When there is clear and convincing evidence of a threat, a TRO can be sought to compel a bad actor to away from someone.

It is an emergency, bandaid measure to remove an immediate threat, but removing the tenant through the standard eviction process is a more preferable, long-term solution.

Historically, our office has used a TRO for clients who have front desk staff, building managers, maintenance workers, and other personnel who are subject to harassment and threats of violence. While a TRO stipulates that the menacing person keeps a certain distance away from an individual, the order doesn't necessarily remove them from the premises. So, ideally, we want to pursue an eviction action in order to eliminate the threat once and for all, as if removing a cancerous tumor.

Our office is open to proceeding with a TRO when there is an immediate need to safeguard someone, while simultaneously filing an eviction action in order to sever the tenancy.


Domestic violence

It's been said that home is where the heart is, but what happens when the home is broken? There is a different set of rules that apply when there is discord not between other tenants outside the household, but conflict within the household itself, or if the parties have a familial or intimate relationship.

Aside from the stereotypical wife-beater who lives in the unit, there are dating partners and stalkers who prey upon the victim. And under the California Code of Civil Procedure, Chapter 4, Section 1161.3, the victim has special protections our community needs to be aware of.

Landlords cannot endeavor to evict victims or refuse to renew a tenancy based upon domestic violence acts if the tenant can document the acts of abuse. The whole public policy behind this, of course, is that survivors of domestic violence should not be victimized twice by losing housing as a result of being mistreated.

Yet the law is not so forgiving to victims who allow the aggressor to visit the property. The victim cannot have it both ways - protections are stripped when they have an "open door" policy by welcoming the abuser back into the unit and the landlord has a reasonable belief that there is a threat to other tenants, guests, or licensees, or a risk to a tenant's right to quiet enjoyment. In this case, we can proceed with an eviction.

With some caveats, conversely, the victims of domestic violence can end the rental agreement without penalty and the landord may be required to change the locks, despite anything stated in the lease to the contrary.

For those of you with residents in public housing and Section 8, the Violence Against Women Act (VAWA) is a federal law that affords additional protections to victims.


Squatting should be treated as a criminal act of burglary and trespass, not allowed to fester as a civil action.

Intermittently, we have clients who have a vacant unit and suddenly discover that there are unwanted, unknown people who have moved in without the landlord's permission. The landlord may not become aware of these parasitic guests until long after they moved in.

The first impulse is to call the police, but we have to be artful in our communication. Squatters have become increasingly sophisticated, often producing a counterfeit lease or a utility bill, claim that the prior tenants gave them permission to stay in the dwelling, or otherwise asserting that they have a legal entitlement to occupy the premises.

Oftentimes, this argument is persuasive enough for responding police to dismiss the squatting as a civil matter, whereupon the landlord will be told to resolve it in court. Law enforcement officers are scared to intervene in landlord-tenant matters because they know it is supposed to be done in an eviction lawsuit.

What will trigger a more urgent police response is to call 911 and report an active burglary. The police will arrive more rapidly and treat it more seriously, with a greater likelihood that the squatter is arrested and removed.

We hasten to say that if the rogue occupant has some link to the property - a subtenant whose master tenant vacated the property and now that subtenant has been lingering for months on end, for example - calling 911 is not a smart strategy.

At any rate, the landlord has every right to change locks when no tenancy exists. Many nuances apply, and we often encounter them when a tenant passes away and their relatives move in. The stakes are ratcheted up in jurisdictions with strict rent and eviction controls, so please consult Bornstein Law whenever a change of locks is contemplated, as a landlord can incur significant liability for an illegal lockout.


Parting thoughts

There are many societal problems with no easy answers. Whether it is drug use, anger, violence, homelessness, unemployment, or other dysfunction, it will surely spill into rental units.

We need to think smartly and strategically about how to deal with conduct that is not acceptable. In our 26+ years of handling all manner of depravity in rental units, Bornstein Law is well prepared to evaluate fact patterns on a case-by-case basis.