Issue:  Vol. 47 / No. 42 / 19 October 2017
 

Couple fights to stay in apartment

NEWS


s.hemmelgarn@ebar.com

Ben Quirk, left, and Chris Vaughn are fighting to remain in their apartment. Photo: Rick Gerharter
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ADVERTISMENT

A couple's struggle in a landlord-tenant dispute to hold on to their Castro apartment could serve as a cautionary tale about the importance of a formal, written rental agreement.

The case involves Chris Vaughn, 29, and his partner of seven years, Ben Quirk, 24. Vaughn has fibromyalgia, a chronic condition characterized by widespread pain throughout the muscles and other parts of the body, as well as fatigue. Vaughn also said that he has post-traumatic stress disorder related to abuse he suffered when he was a child.

The rent for the spacious apartment, which was originally rented by friends of the couple in April 2004, has been $1,500 a month. Vaughn and Quirk moved in in July 2004, though their names were not added to the lease.

The original tenants, who had been listed on the lease, moved out in August 2007 and now, West Coast Property Management, which manages the property, wants to raise the rent to $4,000 per month. Daniel Piccinini, the attorney representing West Coast in the case, said rent control doesn't apply because it is a single-family residence.

Vaughn said that he had a verbal agreement with the man who was a co-trustee of the trust that owns the property when he moved in that the rent would never be raised.

Vaughn and Quirk are determined to hold on to the apartment – they've put a lot of work into fixing it up, and Vaughn wants to stay in the neighborhood because it's safe and close to his medical appointments.

The couple said that they have tried to stick to the process and be nice, but Quirk said that West Coast and Larry Stebbins, a co-trustee of the Bansemer-Zimmer Living Trust, which owns the property, have "chosen to do whatever they want to harass us out of the unit."

But Piccinini said, "My clients are just being treated so badly here. It seems like there's got to be an ulterior motive for what's happening."

Piccinini is representing West Coast and the trust in the Rent Board case.

Vaughn, Quirk, and some others have started staging Saturday protests outside Herth's Castro office in an effort to generate publicity.

Quirk said he's targeting Herth because "Herth is Larry Stebbins. Larry Stebbins is legally Herth."

However, he said signs would be changed to specifically protest Stebbins and mention that Stebbins owns Herth.

Stebbins said Herth "manages no property, owns no property, and is not the rental agent for any property. Herth has nothing to do with this issue."

Stebbins, who said he's never met Vaughn or Quirk, said, "These people placing themselves as victims is truly an abuse of the rent control ordinance that has been developed to protect tenants."

Winding road

Vaughn and Quirk have already faced a lawsuit, which was dismissed, and Piccinini has taken the case to the San Francisco Rent Board. Phil Horne, the couple's lawyer, said he plans to file a lawsuit for malicious prosecution and breach of contract against West Coast Property Management and the trust within a month.

Vaughn said he gets about $890 a month in Social Security disability payments. Quirk said he has a net income of about $4,000 a month in the medical software field.

The couple said despite their desire for privacy, they felt it was important go public.

"It's not just us," Vaughn said. "It's a tenants rights issue happening to people all over the city." lang=EN

The breach of contract allegation stems from 2006, when Vaughn said he heard that the owner wanted to raise the rent from $1,500 to $1,900 per month. He said he spoke to Ron Bansemer, who was at the time a co-trustee of the living trust. Vaughn said that Bansemer told him he had "no intention" of ever raising the rent.

Vaughn said that when he asked Bansemer about signing paperwork on the matter, Bansemer declined. The couple had started looking for another apartment, but stopped after Bansemer said he wouldn't raise the rent, Vaughn stated in a written declaration for the Rent Board.

Vaughn said Bansemer also didn't have a problem with he and Quirk living in the apartment, but again nothing was put in writing.

In October 2006, Bansemer, who reportedly has advanced Alzheimer's disease, resigned from the trust, and co-trustee Richard Zimmer died. Stebbins and Bernard Katzmann, a Herth real estate agent, took over as co-trustees. Stebbins said he'd been named as a successor trustee in 1994 or 1995.

Juliana Kaitting, administrator at Mission Villa Alzheimer's Residence in Daly City, confirmed that Bansemer is a resident there but would not allow the Bay Area Reporter to speak with him.

After the trustees changed, West Coast was hired to manage the property. Stebbins said he can discuss rent increases with the company but he can't go against its recommendations in a way that violates his fiduciary duties to the trust.

Referring to what rent on the unit has been, Stebbins said, "If I say '1,500,' I'm going to have attorneys that are representing the beneficiaries say, 'What the hell are you doing?' and I better have a pretty good reason for doing that."

Agreement in question

Stebbins questions whether Vaughn had any agreement with Bansemer.

"At the time the alleged conversation occurred between Ron Bansemer and the holdover occupant, Ron would not have known to whom he was talking or what unit was under discussion, nor what the content of the information was," Stebbins said. "Ron would have smiled and said 'yes' or would have smiled and nodded."

Vaughn and Quirk expressed surprise at Stebbins's statement. In an e-mail to the B.A.R., Vaughn wrote, "When I spoke to Ron Bansemer, he was completely lucid and fully engaged in the conversation. In addition, when I went into Herth I asked to speak to Ron or Dick about the rent. ... If Ron was not of sound mind, then Herth's employees never should have referred me to him."

Bansemer owned Herth from 1994 to 2005.

Quirk wrote in a separate e-mail, "If Stebbins is saying that Bansemer was not of sound mind, then Bansemer should not have been allowed to sign over his rights as trustee."

He also wrote that the statement calls "into question any legal documents signed by Bansemer or any decisions he made from April 2006 onward."

Stebbins said, "I sat with Ron in the same room for nearly 20 years," and said that Vaughn and Quirk shouldn't be "making any clinical representation."

He also said Bansemer and Zimmer "were very sophisticated businessmen. If they wanted to make an agreement, that agreement would have been in writing."

Fixes

Vaughn and Quirk said they've spent from $10,000 to $15,000 on legal fees over the last eight or nine months, as well as getting the apartment into its current shape. Quirk said he's also advanced $10,000 to himself on a credit card to subsidize their efforts. They have receipts for home improvement supplies.

The apartment, which is clean and nicely decorated, includes two bedrooms, two bathrooms, a kitchen, dining room, living room, and a small office. The walls have been painted and there is new carpet.

The unit was originally rented to John Appelin and Morgan Russell in April 2004. Vaughn and Quirk moved in about three months later. The rental agreement Appelin and Russell signed, a copy of which Vaughn and Quirk provided to the B.A.R., states the "tenant may not assign this agreement or sublet the whole or any portion of the premises without the prior written consent of the owner," unless several conditions are met.

In July 2007, Russell and Appelin gave Quirk and Vaughn an agreement to vacate the apartment by August 31, but Vaughn and Quirk refused to sign it. Russell and Appelin moved out in August.

In photos taken before it was fixed up, the apartment looks trashed. Scattered, small holes scarred the walls; paint jobs were left unfinished; and at least one room was filled with possessions the other couple had left behind. One photo showed cat feces that had been left to petrify on a bathroom floor. Vaughn said the apartment reeked of cat urine and cigarettes. He said the couple, with the help of friends, eventually removed 25 trash bags full of trash from the apartment.

According to Vaughn and Quirk, on September 11, 2007, Ken Duncan, a West Coast property manager, inspected the apartment with a repairman. In a letter dated the next day, he wrote: "I spoke with the trustee this morning and laid out the situation as I see it. Both he and I would prefer that you two stay in possession. If I were to prepare it for new tenants, I would spend several weeks and quite a bit of money in the process. Given the location, size, and condition of the flat, I believe I could rent it for around $4,000 per month."

Duncan, who declined to speak on the record for this article, then proposed that the couple sign a new lease with a rent of $3,250 per month. The couple would have needed a roommate but agreed to the deal. However, just over a week later, they were served with a three-day eviction notice for not paying the rent. Piccinini said their check wasn't accepted because they weren't on the lease.

Stebbins said that he is "probably" the trustee mentioned in the letter, and said, "I don't want to displace anybody from their home, and if I can find a way to resolve this issue so that everybody wins and nobody gets hurt, I would love to do that." However, he again cited his fiduciary duties.

West Coast has offered another apartment to Vaughn and Quirk but it is not in the Castro.

In October 2007, Piccinini filed a lawsuit against the two couples for nonpayment of rent. However, he said he requested a dismissal after it was realized the September three-day eviction notice erroneously said it was for the rent that was due in August.

In February, Piccinini wrote the couple a check for $400 to cover their filing and motion fees.

Quirk told the B.A.R. that Piccinini has returned rent checks for September and October 2007, but he still has all the other checks.

Piccinini indicated the checks, the most recent of which was dated March 28, were returned.

Quirk said West Coast did cash his $4,000 check for this month's rent. Piccinini said he did not know about that.

In an e-mail to the B.A.R., to which he attached images of the canceled check, Quirk explained, "We had some savings and I made a cash advance to myself from a credit card. If things look hopeful over the next few weeks, I will ask a friend of ours for a personal loan to make June rent. I've incurred some significant debt, but it's worth it if we can get back to a place of providing Chris the stability he needs." He said the current situation is temporary.

Rent Board petition

In February, Piccinini filed a petition with the Rent Board to raise the monthly rent to $4,000 because Appelin and Russell are technically still the tenants of record, but they've moved. He said Vaughn and Quirk are not the tenants, but subtenants.

Calls to a number for Appelin and Russell were not returned.

There's also a question as to whether the property is exempt from the state's Costa-Hawkins Rental Housing Act, which according to the Rent Board says that single-family homes are generally exempt from rent control.

Piccinini said the property, which also currently includes two spaces used for commercial purposes, is zoned as a single-family dwelling. Documentation provided to the B.A.R. by Vaughn and Quirk indicates its authorized use is "three family dwelling and commercial." The B.A.R. was unable to independently verify the zoning by press time.

Vaughn and Quirk said they were never served with a notice under Section 6.14 of the Rent Board's rules and regulations. A 6.14 "provides for an unlimited rent increase on remaining occupants when the last original occupant vacates the unit, as long as the landlord timely served all remaining occupants with a written '6.14 notice.'"

According to Piccinini, West Coast has nothing on file to indicate the couple received such a notice.

According to Horne, not receiving the 6.14 notice makes Vaughn and Quirk co-tenants in the unit, and he said the verbal agreement from Bansemer is enforceable as a modification to the written rental agreement, noting that Vaughn relied on Bansemer's pledge to his detriment when he stopped looking for other places to live.

The ordeal has strained Vaughn and Quirk's relationship.

Asked what they'll do if, in the end, they don't win, Vaughn said he didn�t know.

"We've tried to stay very positive," he said. "... We really want to be able to stay there."

Quirk said, "I'd be forced out of the city, and I don't know if we'd necessarily stay together."

"That's where it starts to get really hard," Vaughn said.






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