One of my tenants lost her keys along with her ID, address and other identification. Our apartment building has special security locks on the front door. If we feel it is necessary to replace the lobby keys for all tenants, who should pay for this?
As is common with this type of question, there are not any clear-cut answers or specific laws or statutes that address this issue in San Francisco. With that caveat aside, the only sure recommendation is that you, as a landlord, should seek to include lease terms that provide for re-keying all units if one key is lost, thereby giving notice to your tenant that such costs will be borne by her.
To protect yourself from the tenant who makes a claim that her payment for the total replacement is unfair or excessive, we would suggest that you implement two simple procedures. First, be sure to collect a deposit from each tenant when he/she signs the lease in an amount that would cover the cost of re-keying all locks. Make sure that the deposit does not exceed two months’ rent, per state law. The deposit, can be used to “repair damages, exclusive of ordinary wear and tear, caused by the tenant or his guest(s)” such as repairing the damage caused by the breakdown of security at the building (Civil Code §1950.5). Second, prior to the tenancy, explain to the tenant that the loss of even one key could result in the tenant paying for the replacement of all keys in the building.
Although the above advisements would give the tenant warning, and hopefully cause her to be more careful with her keys, we can see how this straightforward remedy could be muddied. What about the possible high cost of re-keying a large apartment building? What about the tenant who simply misplaces her key, leaving it uncertain whether someone could identify the key as the one to your building? As a general rule, if you do not have notice of a potential breach of security, there is no duty to change the locks. By law, the tenant is “responsible for notifying the landlord” when she becomes aware of an inoperable lock at the premises, which we read to mean a lock that does not keep unauthorized persons out, even if those persons have keys. The landlord will not be liable unless he/she fails to fix the locks within a reasonable time after receiving notice of the problem (Civil Code §1941.3).
On a related issue, many landlords are surprised to learn that if he/she fails to maintain the integrity of dead bolt locks on all doors and locks on windows, a tenant may bring an action for damages and injunctive relief (Civil Code §1941.3). Also, the tenant may refuse to pay rent and can defend against an unlawful detainer action for nonpayment of rent on the basis that the landlord failed to provide adequate locks. The landlord should always make sure that proper locks are in place, both to ensure security, and, if that were not sufficient reason, to prevent any such defense from being asserted by a tenant in a unlawful detainer action.
By Sally Morin and James M. Millar of Millar & Associates (415)981-8100.