I allowed tenants to put their grills on the roof deck. One of the charcoal grills was not well maintained and now hot ashes can drop on the roof. I am worried about it starting a fire. Under the new Mirkarimi ordinance, can I ask the tenant to remove the old grill without having to reduce his rent? I am still allowing gas grills on the roof.      

Your question, although stated simply, actually raises a firestorm.  It is not clear from the question of what material your roof deck is constructed.  The California Fire Code contains very strict guidelines about roofs and grills.  It is very likely that the presence of any grill (gas tank or charcoal) on your roof deck is in violation of the Fire Code, unless your roof deck construction meets the Fire Code requirements for non-combustible material.  You should contact your local fire inspector for more information.  

However, for purposes of this question about the Mirikarmi ordinance, we will assume that the grill’s presence on the roof deck is permissible per the Fire Code, and that you simply want the tenant to remove it because of the fire hazard.   

The Mirikarimi ordinance provides that a landlord may not take away a tenant’s use of garage facilities, parking facilities, driveways, storage areas, laundry rooms, decks, patios or garden access without one of the 15 “just causes” under Rent Ordinance Section 37.9.  Section 37.9 (a)(3), commonly known as the “nuisance ground,” states that a just cause arises if a tenant is creating a substantial interference with the comfort, safety, or enjoyment of the landlord or tenants in the building.  Clearly, hot ashes on the roof are a safety issue.    

A thirty day notice changing the terms of the tenancy requiring the removal of the grill could be served to the tenant pursuant to this provision.   If the tenant is actively using the grill and the fire risk is high, you may want to concurrently serve a three day notice, requiring the immediate removal of the BBQ so as to protect the other tenants and the building without delay.    

In your situation, you are not per se removing the tenant’s complete access to the roof deck, but rather simply asking that the grill be removed.  Of course, the tenant will argue that his sole purpose in using the roof deck is to barbeque, and thus removal of the grill is tantamount to removing his access to the roof deck. (Some landlord attorneys have actually had tenants assert this position in court!)  As such, there is the possibility that the tenant will seek a reduction in his rent if he is not allowed to replace his grill, so at the very least expect a Rent Board petition when the grill is gone.     

 - Marina Franco