Implied Right of Use of Common Areas in Apt. Complex (San Francisco: 2014, apartment)

[SusanYardley]

I live in Oakland in an apartment "complex" consisting of 5 units - a main house with 4 units and a cottage (where I live). The cottage is in the backyard of the property. The main house was recently renovated (it was empty) and new tenants have rented their units starting in January of 2014. I have lived on the property since January of 2005 - not that the length of my tenancy is relevant. The last tenants to move in asked the landlord to stop landscaping the back yard which was underway so that they could garden. Historically the backyard has been a common area. These tenants have now taken all of the soil - arable land - and planted a vegetable garden, which restricts the use of the backyard by other tenants. There are concrete paths to my cottage and to the back porch of the main house which is the only access for one of the other tenants. In other words, 2 of us have a legal right of way to our units through the back yard walkways.

Question 1: Do these areas constitute common use areas or are they mainly for access?

I have asked the landlord if they have exclusive use and get an oblique answer. If they have been granted primary rights to the backyard garden, I contend that it diminishes my implied right to equal enjoyment of the common area of the back yard. The other tenants have decided that this a majority rules situation, but conveniently leave me out of the vote and do not pay any heed to one other tenant's vote. I contend that they have no authority to vote away the rights in my lease. These tenants then rush ahead to finish their next garden project - all of which is not easily undone. Ideally like to have the vegetable gardeners have a much smaller defined and restricted area, leaving the rest of the back yard for common use - bar-b-ques, parties, etc. for the tenants. BTW, all of the planting of the garden was done without meeting with any other tenants, and post-fact their argument is that it is a "community" garden.

Question 2: Does anyone think I have a valid legal argument?

Thanks in advance for your thoughts.

[04kL4nD]

Sounds like the other tenants are bullies/jerks and the landlord doesn't care. If it bothers you, you can always move.

[SusanYardley]

Of course, moving is always an option. But I don't really want to. The only real jerks are the 2 women who have taken over the back yard for their gardening. They are self-centered, self-absorbed, self-serving and manipulative of other tenants. They also completely disregard the rights of other tenants, although only 2 units out of 5 are directly affected. Complete disregard is using other people's property without permission as if anything and everything present in the back yard was put there for their use. They also don't listen - they just proceed to do what they want while complaining I am mean and rude to them. They can't seem to figure out how they have anything to do with my reaction to them. I would not say that the landlord doesn't care, it is more like they don't want to get involved. That is why I am thinking of filing a protest of my CPI rent increase commencing June 1 - to "force" them to mediate the matter. I am claiming my amenities have been diminished by their implied agreement that these 2 tenants have primary use of what used to be a common area, even taking into consideration that these tenants want to share their vegetables and will allow others to garden in their garden (that is they can plant what is approved by them). So, I am really asking a legal question about the implied rights of a lease vis-a-vis use of and responsibility for common areas.

[dalparadise]

I'm no attorney and have no knowledge of property law. That said, if they planted the garden with the landlord's permission, it seems aboveboard to me, since your lease does not specify that use of the lawn is part of your agreement. In other words, "implied amenities" are going to be hard to hold on to, I'd imagine. The landlord should have the right to make whatever improvements to the property he sees fit, so long as they do not affect your access to amenities specifically spelled out in your lease.

Now, as this is common property in the community, I would think the yield of the garden should be shared (along with responsibilities for its upkeep). Future lease addendum a should spell out such access.

[California Vagabond]

Attorney Dave Crowe writes a column on tenants rights for the San Francisco Appeal. His law office's web site has a list of tenant resources, including resources for tenants in the East Bay. I gather that you've got both an Oakland Tenants Union and a Berkeley Tenants Union there. (But should add that I have no personal experience with either.)

Tenant Resources | Crow & Rose | Tenant Lawyers

It certainly sounds like the landlord doesn't want to get involved. In your shoes, I think I might look for a professional who can explain with certainty what a tenant's rights are in your situation, and what recourse you have (or don't have) for getting part of the common area back.

But while doing all that, I'd keep this in mind: the fight might not be worth it, even if you win.

Years ago, I knew a woman who spent several years battling another tenant in her building, and only gave up the fight and moved out after a cancer diagnosis. No one can prove that the battle and the cancer were related, but I thought so, and believe that she thought so, too.

If you're sure not to get any support from your landlord and things look like they're going to stay messy for awhile, it might make more sense over the long haul just to leave. It sounds like you're the aggrieved party, and it's a shame that this has dropped into your court.

[NoMoreSnowForMe]

In thinking of a way to get your landlord to deal with it, I'm thinking you should ask for a rent abatement (a reduction in your rent) because you are not getting what you were paying for - an apartment with a yard area to enjoy.

Squeaky wheels get the grease. Tell the landlord, if he wants to let these women completely take over the back yard, that's fine. But, you want a $100/month rent reduction because of it, because you rented a cottage with an open green area/yard, and you no longer have it.

If that doesn't work, and you're up to the hassle, I'd get myself a hoe, and get in the middle of that garden and start hoeing and weeding (woops, did I pull up your corn? Sorry!), and harvesting, and pruning.

Or, I might even figure out what percentage of that plot is rightfully mine, and raze the puppy and put in some dandelion seeds. Just plow that puppy down to the soil and say, well, this is my plot now.

I really and truly would do the above. I would find the battle exhausting, though, I admit. But, I would do it in the hopes that it forces the landlord to deal with the situation, and to also tell these bullies that I will not be bullied.

The PITA squeaky wheel gets attention. Be a pain in the landlord's rear until it will be easier for him to deal with it, than to not deal with it, if you know what I mean. Call or text him every day, make his life hell with emails and letters asking for a rent reduction, with details on what they are saying, on and on. So, he wants to shut you up worse than he fears dealing with these women.

I'm so sorry for your situation. I'm fighting my own management hassles in my building. I know what a pain it is and how tiring it is. But, so far, I've won my battles by being a bit of a PITA regarding exerting my rights. I win, mainly, by going over the manager's head to the corporate office. Sounds like you don't have that type of landlord. So, you'll just have to be a thorn in your LL's side until he deals with the situation.

Good luck to you.

[SusanYardley]

Thanks for your posts. Another tenant, who is also disturbed by this, has called for a meeting of the tenants on Wednesday. I'll see where this goes. It is about much more than just the back yard use - it runs to their attitude about other tenants' rights and respecting other tenants' property. They come across as if they are in control of the back yard, and they use whatever they want, whether it is theirs or not. They evidently have decided that all property in the back yard is, de facto, for community use - that is, there is no need to ask permission.

I don't want a pyrrhic victory, what I would ideally like is for them to acknowledge that other tenants are endowed with the exact same rights that they are and for them to respect those rights.