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We were recently invited to give a speech about domestic violence in rental units in general, and specifically, HUD’s application of the Violence Against Women Act (VAWA), a federal law that has been instrumental in bringing the once taboo of subject of abusive relationships to light. Since it was signed into law by President Bill Clinton, VAWA has expanded in size and scope, as evolving social values have redefined domestic partnerships and recognized more subtle forms of abuse.

Aside from physical and sexual abuse, behaviors that arouse fear, prevent a partner from doing what they wish or force them to behave in ways against their will, acts of emotional abuse and economic deprivation, threats and intimidation, and stalking after the relationship has ended, can now be considered a serious situation requiring intervention, prosecution, or protections. The National Domestic Hotline has done an excellent job in depicting the ugly head of domestic violence and early warning signs here.

The goals of federal law and California law are in unison, though VAWA has the resources to bring courts, law enforcement, prosecutors, victim services and other advocacy groups, the private bar and other parties together to work alongside each other in a coordinated effort that typically cannot be achieved with the limited assets of state and local governments.

An added benefit of VAWA is that protection orders can be enforced across jurisdictional lines, under the legal term “full faith and credit,” meaning a court in any jurisdiction will honor and enforce orders issued by a court in other jurisdictions.

So, for example, a victim of domestic violence in Boise, Idaho has a protection order and flees to San Francisco to remove themselves from the abuser, but the offender relocates to San Francisco to catch up with the victim. With the added teeth of VAWA, Idaho’s order can be enforced in the newfound surroundings of San Francisco. Our friends at the Battered Women’s Justice Project expounds on the concept of full faith and credit in this PDF.

In an earlier article, we noted that Civil Procedure §§ 1161 & 1161.3 attempts to ensure tenants who are subjected to domestic violence are not victimized twice by prohibiting landlords from terminating a tenancy or refusing to renew the tenancy based purely on acts of aggression and seeking emergency assistance and this sentiment is shared by HUD – its stated position is that “nobody should have to choose between an unsafe home and no home at all.”

HUD has provided a framework to handle instances of domestic violence, and the first priority is to slay the beast. Once the perpetrator of domestic violence is removed from the rental unit, the question is whether the offender is the only resident who established eligibility for assistance.

Clearly, if the bad actor is the only tenant who qualifies for housing vouchers, they may leave close family members in the lurch. HUD takes a humanistic approach by giving other remaining tenants in the unit – husband, wife, sons, daughters, etc – the opportunity to qualify for housing voucher assistance, or give them enough time to find another place to live.

If someone asserts they are a victim of domestic violence or he or she is in imminent danger, they may seek to be transferred to another apartment if one is available.

To get the full scoop, get it straight from the source by downloading HUD-5380, the Notice of Occupancy Rights Under the Violence Against Women Act.

Parting thoughts

Under recent California law and also echoed in HUD guidelines, sufferers of domestic abuse do not have to jump through so many hoops as before to claim their status as a victim – the documentation requirements have been relaxed. In some cases, this means that tenants can bow out of the lease prematurely, without penalty. Add in the casualties of other occupants in the rental unit, this can become tricky.

Whenever domestic violence rears its ugly head, many issues arise, and rental property owners are not expected to fully understand the morass in the normal scope of operating their rental business. It’s been said that home is where the heart is, but when the heart is broken, what happen to the home? That’s a question best approached with Bornstein Law.

 

 

 

It’s been said that home is where the heart is. But what happens when the heart is broken, and an aggressor poses a foreseeable threat to other tenants, or the discord spills into other rental units and interferes with other tenants’ quiet enjoyment of the premises? Clearly, a rental property owner cannot be a social architect or mend broken relationships, but the owner does have certain duties and rights that may not be immediately clear when under the pressure of strife within their dwelling.

When a landlord encounters domestic violence in the property, the law prescribes what can and cannot be done to address this difficult topic and restore harmony to the dwelling. While it affords a great deal of tenant protections to domestic violence victims, the law also outlines tenant responsibilities to the landlord in a balancing act that recognizes the interests of both parties. First, some backdrop.

Long gone are the days of “don’t ask, don’t tell,” when domestic violence was a whispering subject of taboo. There’s been a seismic shift in public policy and the way law enforcement respond to domestic disturbances. Unlike the protocols of yesteryear when it was presumed that whoever raced to the phone first was the victim, determining who the aggressor is, is a factually complex and emotionally-charged decision that the police are tasked to make.

In tandem with the changing posture on domestic violence, more than ever, landlords must be aware of what is going on within their rental units and cannot turn a blind eye to infighting that can quickly reach a boiling point.

What is domestic violence, anyway?

California law seeks to prevent violence in familial or “intimate relationships,” a definition that has been expanded with shifting values and demographics. Domestic violence occurs when a spouse or former spouse, cohabitant or former cohabitant, an individual who is a parent of a child in common, or a dating partner, commits a criminal act of abuse. Aside from the “traditional” domestic charge against an intimate partner that is prohibited in California Penal Code Section 273.5, a host of other charges can arise, such as Simple Battery, Criminal Threats, Stalking, Sexual Battery, and more.

The legal definition of domestic violence can be found in a myriad of provisions within the Civil Code, Penal Code, or the Welfare and Institutions Code, and are broadly defined as “the act or acts of domestic violence, sexual assault, stalking, human trafficking, or abuse of an elder or a dependent adult.” For the purposes of this article, we’ll use the term domestic violence to encompass all forms of abuse.

Keep in mind, domestic violence can take many forms and it need not be the stereotypical slapping around — many times, an abuser uses more discreet methods of exerting control over the victim, through spoken, emotional or psychological means. For example, an utterance of, “I want to kill you” can potentially trigger domestic abuse, as well as stalking tactics after a relationship ends. While many acts of domestic abuse go unseen, let’s assume for the purposes of this discussion that the landlord knows there is something wrong.

However it rears its ugly head, domestic violence must be met with decisive action by owners. Failing to address these conflicts head-on can expose landlords to liability, due to the fundamental responsibility of rental housing providers to provide a safe and secure dwelling. When there is a foreseeable threat to tenants and the owner does not undertake proper measures to correct the abusive behavior of the aggressor or remove the person from the premises, and someone is later injured from the foreseeable threat, the landlord is partially culpable for turning the other cheek, in the eyes of the law.

Taking Proactive Measures

California Code of Civil Procedure §1161(3) allows the landlord to serve a 3-Day Notice to Quit when there are breaches to the rental agreement for something other than non-payment of rent, and this notice may be appropriate when a tenant commits domestic violence or sexual assault against another tenant or subtenant on the premises. Although perpetrating domestic violence is a permissible ground for serving the 3-Day notice, it must be properly served upon the tenant. A common theme we see at Bornstein Law is the improper service of notices that triggers a potential counterclaim of procedural missteps which could be avoided with the guidance of a real estate attorney.

Tenant Protections

A prevailing sentiment among lawmakers and regulators is that domestic violence victims should not lose their housing because of abuse or calling 911. This has been codified in California Code of Civil Procedure §§ 1161 & ,1161.3, which, with certain exceptions, prohibit a landlord from terminating a tenancy or refusing to renew the tenancy based solely upon acts of aggression that constitute domestic violence. This specific protection applies when the aggressor does not live in the same rental unit as the victim, perhaps an intimate partner who comes around but is not named in the lease.

A tenant’s mere assertion that he or she is a victim of domestic violence is not enough to invoke protections. The acts of domestic violence must be documented, as evidenced by one of the following ways.

  • A temporary restraining order or emergency protective order lawfully issued within the last 180 days.
  • A copy of a report, written within the last 180 days, by a peace officer employed by a state or local law enforcement agency acting in his or her official capacity, stating that the tenant or household member has filed a report alleging that he or she or the household member is a victim of domestic violence, sexual assault, or stalking.

Protection from Eviction & Exceptions

Although a landlord generally may not sever a tenancy or fail to renew the tenancy based only on acts of domestic violence perpetrated against the tenant, two notable exceptions apply. The law seems to recognize that protections should be given to genuine victims who need help, but not to those who have an “open door” policy of inviting the aggressor back into the rental unit. It also empowers the landlord to protect others within their rental unit. Thus, the delineated exceptions are:

  • The tenant allows the person against whom the protective order has been issued or who was named in the police report as having committed the act or acts of domestic violence, sexual assault, stalking, human trafficking, or abuse of an elder or a dependent adult to visit the property.
  • The landlord reasonably believes that the presence of the person against whom the protective order has been issued or who was named in the police report as having committed the act or acts of domestic violence, sexual assault, stalking, human trafficking, or abuse of an elder or dependent adult poses a physical threat to other tenants, guests, invitees, or licensees, or to a tenant’s right to quiet possession pursuant to Section 1927 of the Civil Code.

Still, the landlord must have previously given at least three days’ notice to the tenant to correct the violation.

Tenant’s Right To Terminate The Lease

Although in ordinary circumstances, the tenant may not prematurely end the tenancy, the law considers domestic violence an exigent circumstance. Civil Code Section 1946.7, then, allows the victim of domestic abuse to break the lease without penalty, though several caveats apply.

The survivor of domestic violence can provide the landlord a 14-day written notice of the intent to vacate, but must provide proper documentation that substantiates the incident. As indicated, it can be

“a copy of a lawfully issued temporary restraining order or emergency protective order that protects the tenant from further domestic violence, sexual assault, or stalking, or a copy of a written report by a peace officer employed by a state or local law enforcement agency acting in his or her official capacity, stating that the tenant or household member has filed a report alleging that he or she is a victim of domestic violence, sexual assault, or stalking.”

The underlying documents must have been generated within the past 180 days.

The Tenant’s obligation to pay rent

Provided that the proper and timely notice of the early lease termination is made with supporting documentation, the victim of domestic violence can move out without incurring the penalties incurred by other runaway tenants, but they are still obligated to pay the rent for no more than 14 days following the notice. If there are other tenants in the unit, their obligation to pay the rent continues unabated until the lease expires.

The laws surrounding domestic violence do not meddle with security deposit laws; the owner is not obligated to return any portion of the security deposit until the owner regains possession of the unit.

A few parting thoughts

We’ve only scratched the surface here, but we would be remiss not to remind landlords that given the sensitivity and volatile nature of domestic violence, they cannot disclose to a third party any information provided by the tenant unless the tenant consents in writing or is directed to do so by a court. The landlord may also have an obligation under the law to change the locks of the victims’ dwelling, a topic we will reserve for a future post. Although a landlord can evict the victim of domestic violence under only limited circumstances, these exceptions exist.

Finally, as if this area of law is not complicated enough, it can be muddled by issues that arise in terms of protective orders and court instructions, which may stipulate that the aggressor move out of the residence. Landlords are not expected to fully understand this morass in the normal scope of their rental business, making it imperative to consult with an attorney to navigate these perilous waters.

In over 23 years of managing landlord-tenant disputes, Bornstein Law been inserted into thousands of troublesome legal issues and domestic violence ranks amongst the most challenging. To equalize the situation and protect your rights as a property owner, contact our office today.

 

There’s been much news swirling around Section 8 housing, whether in Washington, the California statehouse or in the City by the Bay, where years of financial mismanagement has finally caught up with the San Francisco Housing Authority (SFHA).

Ben Carson muses about his future, but whenever he decides to bow out from heading HUD, he’ll leave behind a lot of ruffled feathers. Under his leadership, Carson has dialed back civil rights enforcement at the agency, suspended Obama-era rules that had been aimed at fighting housing segregation, and sought to triple the minimum rent paid by families on federal housing assistance.

For the embattled San Francisco Housing Authority, however, doubling the rent wasn’t an option. When HUD pressured the agency to bring in more money to cover budget shortfalls, SFHA balked at raising the minimum amount of rent housing voucher recipients have to pay, from $25 to $50 – the extra $25 was a deal breaker for the housing  authority.

When push came to shove, the federal government said: “You’re fired,” putting an end to a string of scandals and embarrassments. Rent relief for 14,000 low-income households is now in the City of San Francisco’s hands.

The conclusion of this debacle came not long after the federal government reopened for business after a protracted shutdown that forced many landlords to tap into their reserves. In an earlier article, we said that participation in Section 8 has always been a trade-off between guaranteed subsidies and other perks, and less endearing aspects of the program. Yet the government shutdown taught rental property owners that housing authorities could run out of money. The prospect of programs going broke fundamentally challenged the inviolability of rent security that has been so appealing to landlords who accept Section 8 vouchers. Without the assurance of the government’s regular checks, this give-and-take relationship crumbles and the system collapses with it.

Of course, the Section 8 program has never been big enough to subsidize everyone who qualifies to be on it and the program largely relies on willing private landlords who opt to work with housing agencies and voucher holders. Yet, whoever came up with the clever phrase that a rising tide lifts all ships clearly did not have Section 8 housing in mind. In today’s red-hot Bay Area real estate market, many landlords are giving Section 8 a cold shoulder, leading some cities to offer the promise of easing inspections and other reform, as well as to dangle carrots to attract more landlords. Oakland, for example, is offering financial incentives to hang on to more landlords.

Many of our clients, however, have found that once they opt-in, it’s until death do us part. The Oakland Housing Authority (OHA) will only sever ties when the lease has been terminated in accordance with the Just Cause for Eviction Ordinance and so, given the difficulty of exiting Oakland’s Section 8 program, owners are advised to do a careful cost/benefit analysis before taking the plunge.

No matter where you stand in the love-hate relationship with Section 8, Senator Holly Mitchell, a Democrat from Los Angeles, would compel rental housing providers to consider tenants who receive federal housing voucher assistance. If passed, SB 329 would make it illegal to deny a tenancy on the grounds of the applicant’s participation in the federal Housing Choice voucher program.

A law is already on the books prohibiting discrimination against a prospective tenant based on some sources of income (for example, Social Security, pensions, CalWorks, or the type of job one holds). California does not define Housing Choice Vouchers or other rental assistance programs as income, so the state law does not currently protect Section 8 clients.

Under the proposed legislation, this definition of source of income would be expanded to include housing subsidies paid by the government directly to landlords.

We hasten to say that while current federal law doesn’t make it illegal for landlords to deny a tenancy based on Section 8 participation, some municipalities such as Berkeley and San Francisco have filled the void. In case you were wondering, those type of ordinances have survived judicial challenges.

Landlords are reminded they can use their regular screening criteria regarding tenant history. Any reason that can be used to deny any other tenancy – a checkered rental history, for example – can also be used when the applicant is a voucher holder. Some owners mistakenly believe non-discrimination laws require them to rent to any voucher holder. While housing providers cannot refuse to accept a tenant based on his or her use of a voucher to help pay rent, more suitable tenants can be found when vetting a pool of candidates. When it comes to this type of communication, less is more.

Discriminatory advertising

Caution should be used when advertising the rental unit, as we have seen many apartment listings with exclusionary language that runs afoul of fair housing laws. When the language expresses a preference for certain groups or, conversely, attempts to discourage other groups from applying, it invites liability.  Property management companies that experience high employee turnover and a lack of formalized legal training are especially at risk of publishing ads like these.

Getting the elephant out of the room

Many landlords who give the cold shoulder to Section 8 applicants feel their position is justified by some preconceived belief that housing voucher recipients will cause damage to the rental unit or instigate other problems. Bornstein Law’s position has always been that no group should be painted with a broad brush.

We always operate under the assumption there are good landlords and bad landlords and in like fashion, there are good tenants and bad tenants. While there is a set of landlords who can relate horror studies about renting to Section 8 tenants, there is no shortage of bad experiences that can be told by landlords who rent to other tenants who do not hold housing choice vouchers. Indeed, many tenants who rely on these vouchers are extra studious tenants because he or she does not want to risk becoming ineligible for the program, so, once again, we urge proper screening to evaluate rental risks on a case-by-case basis.

Domestic violence in public housing

It’s been said that home is where the heart is, but what happens to the home when the heart is broken? When domestic violence rears its ugly head, it is a difficult subject that cannot be ignored. In our next article, we take on the Violence Against Women Act and HUD protections afforded to survivors of domestic violence. Subscribe here to stay in the know or follow us on Facebook.

Although potential minefields always await landlords, participating in Section 8 has its own unique challenges, paperwork, and rules. but you can count on Bornstein Law for proper counsel.

A perennial issue we’ve had at Bornstein Law has been communicating the law when it sometimes has the shelf life of a banana peel. When it comes to police presence at a rental unit, our earlier article stands to be upended.

In that venue on domestic violence, we noted among other things that when discord spills into other units and interferes with other tenants’ quiet enjoyment of the premises, a landlord should give deference to a tenant when they are victims of “domestic violence, sexual assault, stalking, human trafficking, or elder or dependent adult abuse.”

California Code of Civil Procedure §§ 1161 & 1161.3, prohibits a landlord from terminating a tenancy or refusing to renew the tenancy based solely upon acts of aggression, and so the law attempts to ensure that those preyed upon are not victimized twice by being evicted.

In other words, landlords cannot penalize residents if they call law enforcement to report domestic abuse or other crimes or emergency situations at the rental property. By merely calling for help, a tenant cannot be labeled a “nuisance.”

This sentiment remains, but under a bill which has been passed by the legislature and has now landed on the Governor’s desk, it will be easier for tenants to assert their victim status and thus, be entitled to legal protections.

People should be able to call for help without fear of losing their home

~ Assemblyman David Chiu

AB 2413 would loosen documentation requirements, which previously required that abusive acts be documented by protection orders or police reports. It also extends protections to tenants who are victims of other crimes, not necessarily domestic violence. 

The measure received nary opposition and was endorsed by the California Apartment Association. We applaud the legislation and wholeheartedly believe that tenants should not be punished for calling the police when they are a victim of a crime.

Not a blank check

We would be remiss not to point out that the law does not preclude an unlawful detainer action when repeated 911 calls are part and parcel of illegal activities or a larger pattern of behavior which indeed, creates a nuisance. To qualify that statement, it’s instructive to examine how the law defines this term. Under California Civil Code Section 3479, a nuisance is:

“Anything which is injurious to health, including, but not limited to, the illegal sale of controlled substances, or is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property, or unlawfully obstructs the free passage or use, in the customary manner, of any navigable lake, or river, bay, stream, canal, or basin, or any public park, square, street, or highway, is a nuisance.”

Of course, disruptive behavior and 911calls often go hand and hand.

While tenants cannot (and should not) be evicted for seeking police assistance, perhaps these calls are indicative of underlying conduct that is, in fact, injurious or interfering with the quiet enjoyment of other tenants. Put differently, a 911 call in itself is no reason to evict, but the activities that precipitated the emergency call can rise to the level of a nuisance.

When there are recurring disruptions in a rental unit, the tenants should be afforded the opportunity to correct the behavior. We noted in an earlier article, however, that illegal activity is not “curable,” and with our assistance, an unlawful detainer action may be accelerated.

Tenants in a position to bow out of the lease

Although most of the chatter about this law relates to a landlord’s inability to transition a tenant out of the rental unit, an overlooked fact is that a tenant may prematurely break the lease. In an era where political rhetoric often falls squarely on the side of tenant advocates, much of the discussion is about removing tenants when in fact, a landlord may want to maintain the status quo and desire that the survivor of domestic violence stays in the rental unit. The law, however, affords the victim the ability to exit the unit without penalty if certain conditions are met.

Contrary to popularized belief, then, a vacancy is not the goal of a landlord, but to the detriment of him or her in most cases.

In conclusion, the law is sure to be signed by the Governor and is good in theory, but like most other matters that cross our desk, the law is cleaner on the page than it is in real life. You can rely on Bornstein Law to translate how it impacts your rental business. 

 

Immigration law has become a combustible subject lately and while all politics are local, some are more local than others. The Bay Area has become a microcosm of weighty immigration issues that have recently stirred up a lot of soul searching and widespread national debate.

Our role at Bornstein Law is not to legislate or get mired into policy, but to educate the rental housing industry on legal issues that impact their business and to prepare for any anticipated changes in the law.

With California seemingly hunkering down as the capital of democratic resistance in the Trump era, the state was prophetic in enacting AB 291, or the Immigrant Tenant Protection Act. This law clamps down on unscrupulous rental housing providers who use an individual’s immigration status against tenants. Assemblymember David Chiu spoke to his colleagues on the Assembly floor and made his case for the bill.

The law added new teeth

Prior to the passage of AB 291, preexisting California law prohibited landlords from inquiring as to a tenant’s immigration status, but the bill was designed to address the unfortunate acts of intimidation some owners have used to influence tenants to vacate the unit or face being reported to immigration authorities. It adds greater teeth to anti-discrimination laws for renters that are already on the books. Specifically, AB 291:

  • Prohibits landlords from threatening to report tenants to immigration authorities, whether in retaliation for engaging in legally-protected activities or to influence them to vacate.
  • Bars landlords from disclosing information related to tenants’ immigration status.
  • Provides tenants the right to sue landlords who report them to immigration authorities.
  • Codifies an existing defense to unlawful evictions based on immigration status.
  • Prohibits questions about tenants’ immigration status in discovery or at trial.
  • Prohibits attorneys from reporting, or threatening to report, the immigration status of persons involved in housing cases.

The new law isolates the few bad apples, and so it will not affect the day-to-day operations of most law-abiding rental businesses; however, it does highlight the duty of care that landlords must use with the information they glean from their relationship with tenants. This includes their social security numbers, native languages, the times they are home, the identity of their families among other sensitive information, and so landlords must use caution to make sure that any information is not misused.

Perhaps more relevant to landlords is the California Translation Act and so we pivot to this law. 

Don’t get lost in translation

It’s an axiom in contract law that, generally speaking, for an agreement to be legally enforceable, the parties must understand what they are agreeing to. It logically follows that landlords would not want to prepare a lease in a foreign language.

As the most populous and culturally diverse state in the union, it’s with little surprise that California has the highest concentration of people who do not speak English at home — the number hovers at over 44 percent, according to the U.S. Census Bureau.

Enter the California Translation Act, a law codified in Civil Code § 1632 which was originally enacted in 1976 to increase consumer information and protections for the state’s burgeoning population of Spanish-speaking residents, but has since recognized the influx of persons who speak other languages, including Spanish, Chinese, Tagalog, Vietnamese, or Korean.

The statute says that when certain tradespersons or businesses negotiate a contract in these non-English languages, the merchant must deliver a translation of the contract terms and conditions in the native tongue of the other party prior to execution of the contract. Landlords are lumped into this category when they negotiate:

A lease, sublease, rental contract or agreement, or other term of tenancy contract or agreement, for a period of longer than one month, covering a dwelling, an apartment, or mobilehome [sic] , or other dwelling unit normally occupied as a residence.

An exception exists when the tenant has a competent interpreter who is present as you negotiate the lease agreement. But all too often, the landlord provides the interpreter (or does the translation himself or herself), or the interpreter’s full understanding of English is called into question later when a dispute arises, so we advise clients to tread with caution and ensure distance between the landlord and the translator.

The selection of a translator can be challenged down the road

The interpreter must be independent of the landlord, and a minor cannot be the translator — an English-speaking child who answers the door and serves as an impromptu intermediary won’t suffice because of the child’s lack of sophistication and, perhaps, understanding of all the terms.

Ongoing responsibilities

We hasten to say that a landlord’s responsibility under the California Translation Act extends beyond the outset of the tenancy — if there are any material changes to the lease, including, but not limited to rent increases, the modifications must also be translated in accordance with the Act.

In most cases, a tenant cannot prematurely break the lease without penalty, but there are exceptions to the rule. We noted in an earlier article that under certain conditions, the victims of domestic violence can walk away from the rental agreement without consequence.

Another exigent circumstance exists when the non-English speaking tenant claims to have been bamboozled by inking a lease in a language the tenant did not understand.

Given a rash of tenant lawsuits proliferating throughout the Bay Area, it is best to use caution and have a one-on-one with an attorney whenever you encounter a language barrier or have any uncertainties when drafting a lease.

Unwavering resolve

In our storied practice of managing landlord-tenant relationships for over 23 years, the political winds have blown in many directions, yet our fierce advocacy for property owner rights has remained a constant. For proper counsel to manage legal relationships, avoid or resolve conflict, and cauterize risk, contact our office today.