Bornstein Law


In an only-in-San Francisco moment, lawmakers push union-like protections in buildings with five or more tenants, whether rent-controlled or not.

Every Labor Day, Bornstein Law has paid homage to a pantheon of figures who have fought to raise wages, shorten hours, and provide supplemental benefits. In the words of John F. Kennedy, it was “through collective bargaining and grievance procedures labor unions have brought justice and democracy to the shop floor.”

Now, will these same protections be extended to apartment buildings?

For San Francisco Supervisor Aaron Peskin, there should be solidarity between tenants in all buildings with five or more units. Borrowing from the “storied playbook of labor,” the Supervisor has crafted a proposal that would amend the Administrative Code to compel a dialogue between landlords and tenants.

This discourse is not optional; landlords would have to recognize “duly-established tenant organizations” and come to the table to discuss “landlord-tenant regulations, and/or similar issues of common interest or concern among tenants in the building.”

If landlords refuse to meet and engage in a constructive meeting of the minds, tear down flyers, harass organizers or otherwise don’t give a megaphone to tenants that want to organize, it is considered a reduction in services, and the tenants, in turn, can petition the Rent Board for a corresponding rent reduction.

Excessive protections for a city that already has a plethora of safeguards for tenants? 

For Charley Goss of the San Francisco Apartment Association, the potential legislation is overkill and would fuel “hostile interactions and an ‘Us versus Them’ environment which will unnecessarily deteriorate and politicize the landlord-tenant relationship,” he told TheRealDeal.

We agree. San Francisco has the most ensconced protections anywhere. Wrongs can be righted through the court and the Rent Board. Inspectors can be called upon to identify inhabitable living conditions. And let’s not forget there is no shortage of tenants’ attorneys willing to air out grievances, often at no charge thanks to the “no eviction without representation” movement.” According to Supervisor Dean Preston, the city’s program to provide free legal aid to tenants is fully funded for the first time in years.

A law that requires compulsory meetings would only create an adversarial tone between landlords and tenants, even if both parties are communicative and no conflict exists.

Although it is a good practice to have a fluid dialogue with tenants and hear their concerns, “forced meetings don’t typically result in success,” Daniel Bornstein commented when we first heard of the proposal to give tenants union-like protections.

Tenant unions are not a new concept in San Francisco

There are already lively activities being orchestrated by tenant unions. The Veritas Tenants Association, for instance, is staging a debt strike because they feel marginalized. The city’s largest landlord asserts that it is engaging in productive conversations with tenants and there is no reason to disbelieve them.

Indeed, we noted early on in the pandemic that Veritas was a good corporate citizen and a pioneer in forgiving rent debt even though they weren’t required to do so. This act of generosity didn’t go far enough for tenants’ activists.

While nothing currently prohibits tenants from banding together, landlords are not required to formally recognize and meet with a tenant organization. The proposed legislation would change that – landlords would have to come to the table.

Some key provisions to digest

Although landlords can set reasonable guidelines for the time, place, and manner of tenant organizing activities – these campaigns cannot get too rowdy and interfere with the quiet enjoyment of residents – this outreach must be allowed in common areas of the building.

The organizers are allowed to go door-to-door to distribute literature and educate fellow tenants on joining a tenant organization.

Noteworthy, however, is that the tenant who does not want to join the movement can say “no thanks” and the activists must honor their requests. Any literature placed on or in front of the tenant must give the name, telephone number, and address of the distributor. The organizer would have the right to convey information, but tenants have the right to bow out of any future entreaties. No means no.

What is a “tenant organization” anyway? It is not just a group of five or more tenants who are mad as hell. It requires some structure. 

In order to be recognized as a bona fide tenant organization, organizers must provide a petition signed by at least 50% of the occupied units in the building expressing that they want to form a tenant association.

We find this to be a low bar – residents are only asked if they would like to have a say in airing out concerns with the landlord, so the necessary written statements should be rather easy for the organizers to obtain, whether those statements are by individuals or collective written assertions to participate.

Once formed, tenant associations are required to hold regular meetings open to all residents of the building and elect officers to serve for two-year terms.

The proposed ordinance requires that both landlords and tenant associations “confer with each other in good faith.”

While this is an ambiguous term that may ultimately be litigated in front of the Rent Board, suffice it to say that both parties should hear each other out and invite a free-flowing exchange of information.

Certainly, landlords should take copious notes of correspondence with the tenant organization and document any concerns raised, along with any course of action taken to come up with an amicable resolution. When landlords formally meet with the tenant’s association – as would be prescribed by law, or perhaps on a more frequent or impromptu basis, meeting minutes should be recorded.

The tenant association could claim in front of the Rent Board that the landlord did not engage in good faith discussions, but what we want to do is provide a counter-narrative.

Tenants’ advocates are a resilient bunch. Their motto seems to be if a measure fails, try, try again.

A similar bill died on the vine in the statehouse. SB 529 would have given tenant associations the right to get together and withhold rent. Supervisor Peskin’s proposal stops short of allowing tenants to stop paying rent; the Rent Board would be the final arbiter of whether or not a rent reduction is warranted. Bornstein Law has not been a Johnny-Come-Lately on this subject.

Read our earlier blog: Withholding rent in the spirit of protest

Parting thoughts

In the eventuality San Francisco’s law passes, what can a landlord do? It has been said, “if you can’t beat them, join them.” Conceivably, we can question the validity of a self-professed tenant organization and say that they did not comply with the procedural requirements to call themselves a tenant organization. This would only deteriorate the rental relationship.

Better, in our view, to continue and amplify communication with tenants. Interestingly, the proposed legislation would not require landlords to act on every request made by a tenant organization or rush to fix a perceived problem that is voiced. The law merely requires concerns to be heard.

Of course, Bornstein Law stands ready to facilitate this communication and represent landlords in front of the Rent Board if the tenant organization decides to escalate the matter and argue for a reduction in rent.

Please stay dialed into future developments and edicts. The proposal has not been signed into law yet, but given the San Francisco Board of Supervisors’ affinity for tenant protections, we have no reason to believe that the measure will not sail through.

Zoom meetings and other virtual conferencing have become the new normal and nothing in the raw language of the proposed ordinance prohibits landlords from meeting with the tenant organization members remotely – we feel this would be the best venue to bring all parties on the same page to fulfill the spirit of the law of giving tenants an easy platform to speak their minds.

We draw a parallel with rental housing

We’ve been unable to find any “ how-to” manual on how to be a landlord, operate a landlord-tenant law firm, or for that matter, run any kind of business during a pandemic. The reality is there have been many grey areas in the law. Normally, laws have had time to be ironed out in the courts, but we have not had that luxury of careful, studied review of government edicts. 

With that in mind, we were intrigued to come across this article that begins with a provocative question: “Can I require my employees to be vaccinated?” There is no clear answer, and we can relate. 

Our fraternity of landlord attorneys has become friendlier competitors during the pandemic by musing back and forth through email chains about interpretations of eviction moratoriums and other edicts. Sometimes, there have been fifteen different opinions because we are all in uncharted territory. Practicing landlord-tenant law during these bizarre times has been part social engineering, part law, and part “best guess.” We have attempted to triangulate our individual opinions, but let’s move onto the question at hand. 

If you ask California’s Department of Fair Housing (DFEH), it is legal under civil rights laws for businesses, including property management companies, to require workers to get vaccinated, so long as it does not infringe on civil rights. 

See the agency’s guidance on what employers can and cannot do (PDF) »

There is some sentiment that an employer cannot compel its employees to get vaccinated because the FDA has stopped short of granting full approval to any of the cocktails of vaccines. Instead, the FDA has authorized the vaccines for emergency use and thus, vaccination in the workplace is left up to the individual themselves. But is this technicality splitting hairs? 

In her blog, Harvard Law School Professor Dorit Rubinstein Reiss submits that while there is little precedent on this, most judges would take the side of an employer that requires workers to get vaccinated. It’s shaky legal ground with arguments for and against mandates. 

As the pandemic persists, so does the Constitution. 

DFEH makes it clear that an employer who mandates a shot in the arm has an obligation to uphold the civil rights of their employees, and we cannot help but make a comparison to fair housing laws. Problems arise when individuals fall into an ever-expanding “protected class.” 

Just like a landlord cannot deny a tenancy based on a disability or religion, it’s entirely possible that a worker can object to inoculation because he or she is disabled or holds a religious belief. And just as housing providers must offer a reasonable accommodation to protected classes, employers can make reasonable accommodations to employees who are adamant about not getting vaccinated based on a religious creed or other assertion, weighing, of course, the employee’s civil rights against the safety of the rest of the workforce or the general public. 

Such a modification might involve shifting the worker into another position, allowing him or her to work for home, or some other solution. This balancing act, however, should be delicate. 

In an earlier blog on using background checks in tenant screening, we urged landlords and property managers to apply the same standards in evaluating a tenancy, keeping the policy consistent with each and every applicant. In like fashion, we think that if employers require vaccinations, it should not be exclusionary. For example, if workers are told they have to be inoculated but supervisors get special treatment and are exempted from the requirement, the employer can run into trouble. 

DFEH points out that if making a reasonable accommodation would result in an undue hardship, the employee could be excluded from the workplace. So, just like housing, the key word is “reasonable,” and that will be determined on a case-by-case basis. 

Constitutional lawyers we are not, but what we can say with certainty is that the pandemic has raised weighty legal issues that haven’t been tested until now. Whether or not employers can tell their workforce to get vaccinated is just one. 

Where do emergency powers of government end? Can the executive branch rewrite state law? What is the liability of landlords who are responsible for providing a habitable apartment but the tenant refuses access to the rental unit? Does the Centers For Disease Control and Prevention have the authority to issue eviction moratoriums? What is a landlord to do when an infected resident does not wear a mask and is spreading the virus to other residents? 

Riddles are abound with no easy answers. 

Some of the more notable figures in housing and landlord-tenant law we came across in 2020.

With landlords and tenants hanging on by a thread, many people have stepped up to offer solutions. We survey some of the most influential people in housing, along with up and coming figures who will shape the future.

Assemblymember David Chiu

Any discussion about landlord-tenant legislation in 2020 would be incomplete without the mention of David Chiu.

Already the most prolific author of tenant protections, Assemblymember David Chiu was instrumental in brokering the COVID-19 Tenant Protection Act of 2020 (AB-3088), a law we discussed at length here.

With eviction protections expiring on January 31, 2021, it is up in the air how lawmakers will craft more permanent solutions to the economic fallout of the pandemic. With the introduction of Assembly Bill 15, Mr. Chiu wants to extend the eviction protections under AB-3088 until the end of 2021.

Debra Carlton

2020 was a rough year for rental property owners, but they had no greater ally than the California Apartment Association. As its Executive Vice President, Debra Carlton was always on the front lines making the case for landlords who faced unpaid rents, rising vacancies, and unreasonable eviction restrictions.

A lot has gone wrong for landlords in the past year,  but if anything went right, Debra Carlton probably had an imprint in it. She was widely quoted in various media outlets as the definitive voice for landlords.

Carlton argued that lawmakers did not do enough to help owners and operators keep their properties running, not to mention paying property taxes and mortgage expenses.

Listen to her give her takes in a recent radio program »

Prop 21 went down in defeat, solid leaders empathetic to the hardships of property owners were elected to the statehouse, and an ill-conceived COVID-19 measure that would be catastrophic to landlords failed, as did a bill limiting security deposits. Housing supply bills, on the other hand, won passage.

Throughout the pandemic, CAA was committed to telling a counter-narrative that was often drowned out in the media but heard by many sober minds. Debra Carlton and CEO Thomas Bannon were the chief ambassadors.

While the first reflex of lawmakers was to protect renters, Carlton was always quick to point out that landlords have hardships of their own and that a reasonable compromise should be reached so that both tenants and landlords can come out ahead on the other side of COVID.

Carroll Fife

After Carroll Fife was evicted and displaced from her Oakland district, she said she would come back. She made good on that promise.

One of the masterminds behind the Moms 4 Housing movement is now council-member elect and vows to combat the housing crisis from inside City Hall.

The community organizer was the mastermind behind the grassroots collective launched after a group of homeless and marginally housed mothers occupied a vacant West Oakland house that was owned by a real estate investment company. The cause reverberated throughout California and around the country.

The message that housing is a right struck a chord during a time when rents remained untenable for many and was amplified from the growing distrust and frustration with investors who left properties vacant when housing was most sorely needed. Long-lasting change followed.

Legislation was enacted that makes it harder for corporate homebuyers to go on a shopping spree at a foreclosure auction and tenants now can advocate for themselves in ways they never could before by having the opportunity to purchase their building if it goes up for sale, or designate a housing organization or land trust dedicated to affordable housing to become the new landlord.

San Francisco Supervisor Sandra Fewer

The retiring Supervisor is the chief architect of legislation that would require landlords to report reams of information about their business to the Rent Board. Fewer is convinced that the City needs more transparency in its housing stock and wants the board to have new fangs to track landlord-tenant relationships, investigate housing services and rents, and better administer the ordinance. 

We strongly objected to the colossal database on many grounds and made our case against it here

Michael Weinstein

In his quest for the expansion of draconian rent control measures, the head of the AIDS Healthcare Foundation can’t seem to take no as an answer.

After voters overwhelmingly rejected Proposition 10 in 2018, Weinstein reincarnated a different ballot measure in 2020 that shared the same fate.

Millions of dollars were infused into a campaign that would authorize local governments to bring back vacancy controls, cap rents between tenancies, and allow cities and counties to apply local rent ordinances to newer apartments – as soon as they turn 15 years old – and to a greater number of condos and single-family homes.

The advertisements aired to persuade voters were widely decried as misleading.Sid Lakireddy

Like Debra Carlton, Sid Lakireddy has advocated vigorously for landlords, but he has a special affinity for smaller landlords. While larger landlords might have the cash to compensate for a small number of tenants not paying rent during the pandemic, smaller landlords often do not, says the President of the California Rental Housing Association (CalRHA). CalRHA is composed of organizations that broke away from the California Apartment Association and in less than 5 years, has amassed more individual members and rental units covered than any other group. 

Chief Justice Tani G. Cantil-Sakauye

When Governor Newsom gave unprecedented power to the policymaking arm of the California judiciary to halt evictions, it rose to the occasion by enacting temporary emergency rules that suspended court actions on evictions and judicial foreclosures during the COVID-19 pandemic.

With pending litigation that argued it is not the role of the judicial branch to set housing policies, the Chief Justice Cantil-Sakauye agreed and nudged lawmakers and the Governor to do their job in crafting solutions to the economic fallout of COVID-19.

“The duty of the judicial branch is to resolve disputes under the law and not to legislate. I urge our sister branches to act expeditiously to resolve this looming crisis,” she said in a statement. Landlords and building owners, many of who are facing financial distress and lapsed mortgages of their own, celebrated the Judicial Council’s about-face.

Rep. Marcia Fudge

The incoming HUD secretary will inherit an acute housing crisis with millions of people behind on rent and mortgage payments. A Biden administration is expected to lobby for billions of more dollars in rent relief, and HUD will likely push for more funding to address the intractable homelessness problem.

We also predict that rental applicants and tenants can sue landlords for discrimination with greater ease.

Supervisor Dean Preston

As a tenant defense lawyer and the founder of Tenants Together, Supervisor Dean Preston has been at the center of a movement railing against real estate industry excesses. With a deep distrust of the free market’s ability to address housing needs, the District 5 Supervisor has been vocal in his calls for tenant protections.

Preston was the chief architect of the city’s ban on no-fault evictions like owner or relative move-ins and capital improvements. Yet there seems to be a soft place in his heart for small landlords who should not be “left out of in the cold if tenants can’t pay rent because of COVID.”

With back rent piling up under the eviction moratorium, Dean Preston was the author of a Rent Resolution and Relief Fund, an initiative to provide funding for landlords whose tenants have been unable to pay rent because of a COVID-19 related hardship.

Noni Richen                                                                  

Since Noni bought a pair of flats in 1974 and rented out a four-unit building near her home, she has embarked on a mission to advocate for the rights of “mom and pop” landlords in San Francisco.

Never one to mince words, the head of the San Francisco Small Property Owners Association Institute has been outspoken in providing a counter-narrative in a time when political rhetoric falls squarely on the side of tenants. 

 For Noni Richen, this is not a David versus Goliath battle. She correctly points out that small landlords are bedrocks in our community and provide the biggest segment of safe, clean, and affordable housing. If you ask her, landlords are worried about how they are going to pay their expenses while renters are comfortable and safe. Tenants are clients and customers and contrary to what some might say, it is not in the best interests of landlords to evict anyone. 

The organization has provided more than lip service. SPOSFI has joined other landlord and realtor groups in suing San Francisco over its temporary eviction ban. Although that lawsuit was in the loss column, Noni and company would score a victory by successfully arguing that San Francisco’s amended buyout ordinance is invalid and unenforceable.
















TransUnion conducted a study to keep a pulse on the financial health and stability of the renter population and the ripple effect on property owners and operators. We offer a couple of takeaways.

Every now and then, it is helpful to focus on the larger picture.

It should go without saying that these have been difficult times for everyone, and that the pandemic does not discriminate against property owners and renters. Our hard-won experience has shown that property owners and their agents have worked with tenants so that both landlords and tenants come out ahead on the other side of COVID.

Real estate numbers have remained relatively strong, and this may be counterintuitive during a public health crisis. The reality is, everyone is tightening their belts. There has been a surge in single-family home sales, according to one economist known for being good at predicting bad news, because aspiring homeowners have piled up a lot of money for a down payment.

This pool of money represents “involuntary savings” that has accumulated during a period when money can’t be spent. Can’t buy a 49ers ticket, can’t go on a cruise, can’t get a massage, or can’t even go out to eat.

Another stabilizing force has been savvy real estate investors taking advantage of declining home prices.

Thrifty renters are spending wisely, too, according to TransUnion’s analysis

Many experts predicted that consumers would turn to debt to meet expenses like rent, but according to the credit reporting agency, they were wrong. Consumers have shown an increased awareness of credit, the study makes clear, noting that renters are religiously checking their credit during the pandemic, with 57% of those surveyed in the study stating that they check their credit once per month.

The opening of new trade lines has actually decreased, and this has led to a corresponding rise in credit scores across the board.

Importance of credit is a positive sign for property owners owed rent debt

Under the COVID-19 Tenant Relief Act of 2020, there will be a mountain of rent debt accrued during the pandemic that can be recovered in civil courts, but our strong preference, of course, is that the rent be paid and that property owners avoid litigation. We are encouraged that conscientious renters have indicated they want to preserve their credit and avoid a judgment on their record. In a recent webinar, we delve deeper into the subject of recouping rent debt.

The TransUnion study offers a bit of advice to property managers, noting that as credit scores in general rise, it may be worthwhile to revisit their credit screening criteria to ensure they account for this change in credit behavior.

You can download the insightful PDF here.

Under fair housing proposals being floated, landlords would have to accept guarantors on behalf of unqualified tenants

The Fair Employment and Housing Council is part of the California Department of Fair Employment and Housing (DFEH), the top regulator in implementing California’s civil rights laws. This body is considering a number of proposals and interestingly, is considering a plan to force landlords to accept guarantors on behalf of tenants. 

It’s well established that California’s Fair Employment and Housing Act protects rental applicants based on many categories, including source of income. Housing providers cannot, for example, refuse to rent to someone or otherwise discriminate against them, because they have a housing subsidy, such as a Section 8 Housing Choice Voucher, that assists in paying rent. 

Under the banner of “source of income,” the Council is proposing to expand protections to rental applicants who have someone willing to act as a guarantor. It’s analogous to co-signing a loan. If the tenant is unable to pay the rent, a third party would guarantee that the rent is paid, or would they?

These so-called guarantors may be living outside of California or outside the country, for that matter. Take, for instance, an international student visiting the Bay Area and mom and dad are oceans away. Landlords and property managers would find it extremely hard to collect rent. 

We can’t help but draw a parallel with the newly enacted Assembly Bill 3088, which converts rent debt into consumer debt recoverable through civil courts. We have said that even if a judgment is obtained, it may not be worth the paper it is printed on. Rent debt is not an attractive debt to chase and while we hate to be pessimists, we predict that many landlords looking to collect rent debt that accrued during the pandemic will find it to be an exercise in frustration and futility. This is especially true with tenants who already have marred credit and are not concerned about another blemish on their record. Arrears may end up on the desk of a collections attorney or agency. If it comes down to third-party collections, the landlord conceivably could get pennies on the dollar.  

Unqualified applicants welcome

Of course, property owners and managers have always used minimum-income standards when screening rental applicants – oftentimes, the yardstick is income three times the monthly rental amount. This proposal would disrupt the longstanding policy of ensuring stable income so that a prospective tenant has the ability to pay rent for the unit they are applying for.

Not surprisingly, both the California Apartment Association and the California Association of REALTORS® voiced strong opposition to the proposal. “The point of a guarantor is to essentially act as an insurer, who steps in only in the event of a default by the resident,” says Whitney Prout, CAA’s legal and compliance counsel and someone who chimed in on the proposal during a public hearing before the council. “Requiring housing providers to rent to unqualified applicants doesn’t help anyone – the property owner loses rental income, and the resident ends up in an unaffordable and unsustainable housing situation,” she went on to say. 

Bornstein Law agrees with this sentiment. In a string of other blogs on fair housing policies, we have said that the envelope is constantly being pushed, in terms of what groups rise to the level of a “protected class,” but this proposal will impose an unacceptable risk to rental housing providers endeavoring to protect their investments. 

In a recent webinar that took the format of a town hall, we were thrown a curveball. The last question posed was what we thought would happen to the housing industry and the overall economy if a new president were elected or if Trump were to stay in office. We can’t see that far – November is an eternity. 

Our role at Bornstein Law is not to get mired into politics, choose sides, or predict a future that is becoming stranger and stranger, but to assist owners in a time when they have been deluged with new laws and rules to follow. We are taking this one day at a time, and our goals are not all that lofty. We want property owners and tenants to come out successfully on the other side of COVID and not wake up to a blue sky turning orange. 

Some encouraging signs that a rust-colored sky will pass. 

The real estate market has been surprisingly robust, and this isn’t intuitive – you might have guessed at first that the pandemic would decimate our community. The strength of the market is probably owed to a confluence of factors. 

Skittish investors are shifting their money from the stock market to real property, low-interest rates have inspired new homeownership, and residents are migrating away from high-rent areas. The federal government has injected a massive amount of liquidity into the economy, at least at the outset of the pandemic. 

While the feds pumped out a lot of money, exactly how tenants could pay the rents and how landlords could survive without rental income was a peripheral concern for Washington – the survival of landlords seemed to be an afterthought. This has left many cash-strapped California renters forced to accumulate a mountain of debt as mom and pop landlords teeter on the edge of losing their properties and retirement income. 

Daniel Bornstein told the San Francisco Chronicle that rather than landlords shouldering the societal burden of unpaid rents, interest-free loans should be made available to keep property owners solvent while giving some leeway to tenants who risk eviction. Since then, the COVID-19 Tenant Protection Act of 2020 has passed, which will inevitably and tragically lead to the eviction of distressed tenants who will not have a bucket of cash to pay the 25% of total rent that becomes due in January of 2021. We cover the new law here.

Like everyone else, Bornstein Law wishes this pandemic will end, job-shedding will stop, and we all return to some semblance of normalcy. We like boring.

It’s rare that landlord and tenant groups see eye to eye, but everyone has called upon the federal government to do more. Whoever occupies office, we trust that they will think coherently on the economics of housing and not put landlords at risk. Until then, property owners have been asked to shoulder an inordinate amount of responsibility for the societal costs of the crisis.=

Our landlord clients feel as though the heavy lifting has been borne by one class of individuals at the expense of others.

~ Daniel Bornstein quoted in the ABA Journal

Putting politics aside

Bornstein Law dodges the question of who we want as elected officials. Our primary wish is for everyone to stay healthy, maintain a positive orientation, and have a rust-colored sky replaced by blue. Literally and figuratively. 

We want boring again. 

Billionaires can help economically distressed landlords and tenants with a sensible solution.

Tenants are fearing homelessness, while many cash-strapped landlords are in dire straights. Private-sector interest-free loans could assuage the fear of eviction while keeping landlords solvent.

When COVID-19 reared its ugly head, tenants’ advocates sounded the alarms, and lawmakers heard the call. Fearing massive displacement of renters who have lost income due to the pandemic, and with unemployment benefits ending soon, politicians have gotten together to enact ever-expanding eviction moratoriums and a wide range of tenant protections. 

Meanwhile, landlords are struggling and especially mom-and-pops who are bereft of income. We were disheartened by a survey conducted by the Terner Center for Housing Innovation at the University of California, Berkeley that reported 1 in 4 small landlords have borrowed funds to absorb costs and some are on the brink of going out of business or losing retirement funds.

Relief proposals have been lopsided

There is no doubt that this virus and the economic fallout does not discriminate against landlords or tenants. Everyone has suffered. There is no “tenant camp” or “landlord camp.” The question now is how to bounce back and find equitable solutions that recognize the pain of both tenants and rental property owners. Thus far, the proposals have been lopsided. 

In Sacramento, several crackpot measures like reducing rent across the board by 25% (AB 828) and giving tenants years to pay back COVID-related debt have been defeated or stalled. SB 1410 was one of the few bills that acknowledged the hardship of landlords. In its original form, SB 1410 would pay 80% of back rent to landlords in exchange for reasonable concessions. The re-worked bill was watered down, however. and would not have provided much-needed cash assistance to landlords. Instead, owners would be entitled to tax credits spread out over many years. With the proposal butchered, SB 1410 lost its blessing from the California Apartment Association (CAA). 

Mortgage forbearance is a band-aid fix 

Another bill, AB 1436, would be a token act that grants a one-year mortgage forbearance to small landlords with up to four units; landlords with five or more units could request just six-months forbearance. Although branded as landlord relief, AB 1436 provides no aid to landlords trying to make ends meet.   

A reality that often goes unacknowledged is that when owners don’t make money from their rental properties, tenants suffer. Maintenance, upkeep, and necessary repairs fall to the wayside. 

There are other measures we won’t survey here, but suffice it to say that after looking high and low, we could not find any legislative proposals that assist in helping owners. It’s been said by one former California governor and president that government is the problem and not the answer, but there is a private market that is willing and able to chip in and offer solutions.  

Bay Area wealth can put a big dent in the crisis

Let’s explore the possibility that vocal, socially conscientious people who have the means to make a difference can step up and actually put a dent in this crisis. 

Being in the tech capital of the world, there’s no shortage of money to go around. As Forbes reports, California is home to 165 billionaires, of which a good number reside in the Bay Area. Governor Newsom in his first days in office called upon tech giants to provide developers with low-interest loans to build housing for teachers, nurses, and other middle-class Californians. So asking well-to-do companies to help solve our current crisis is not a radical idea.

A lifeline for landlords 

There have been numerous well-endowed individuals, corporations, philanthropies, and foundations who have raised their hand and said they want to be part of the solution. They can now step up and help preserve housing by giving interest-free loans to tenants in order to fulfill past due rent. In so doing, they would give a lifeline to landlords who depend on rental income to sustain life and maintain the comfort and amenities that tenants want and demand.  

“Someone needs to tap (the billionaires) on the shoulder, and say, ‘Now is the time to be there for us. What are you waiting for? This is the crisis.”

This is what Daniel Bornstein told the San Francisco Chronicle, and the publication conceded it’s not that far of a stretch considering Jack Dorsey, the head of Twitter and Square, forked over $1 billion to coronavirus relief and donated $10 million to close the digital divide for Oakland students.

Billionaires, please stand up 

Facebook, Apple, and other huge tech companies have put their money where their mouth is by pouring many millions into affordable housing programs. How about a similar effort—a private-sector pool of wealth providing interest-free loans—to enable tenants to pay their rent? Many tenants need the funds now—and landlords rely on that money. True, state and local moratoriums on evictions for pandemic-related non-payment of rent still obligate the tenant to pay their back rent, but they defer that obligation to the point that it becomes increasingly unlikely that the tenant will be able to pay it back—especially if she has accrued up to 15 months of indebtedness, as AB 1436 would have allowed. Worst of all, however, these eviction moratoriums place the burden entirely on the owner to collect the back rent, an effort that anyone who’s been through it knows, is costly, time-consuming, emotionally draining—and often unsuccessful.

Obviously, many details need to be worked out for the successful implementation of this model. For example, who would administer the loans? Would the funds be disbursed directly to the landlord in order to ensure that the money gets spent to pay rent and not simply into the pockets of unscrupulous tenants? Having the private sector step in to get the money flowing to keep both tenants and landlords solvent is far faster and far more efficient than looking to government to do it. It’s the smart thing to do.

We call upon those with the means to make a real difference in the current crisis. It’s altruism at its best, but it’s also enlightened self-interest and good business. To the billionaires, we say: “You’ve made money. and now it can really matter.”

Editorial note: A special thanks to Gideon and our friends at the Small Property Owners of San Francisco Insitute for contributing to this blog.

With a wealth of experience in tenant buyout agreements during every era and in every Bay Area locale, Bornstein Law is uniquely positioned to survey a patchwork of rules related to tenant surrender of possession agreements.

In a tenant buyout agreement or tenant surrender of possession agreement to be proper, the tenant volunteers to voluntarily vacate the premises in exchange for compensation, a waiver of rent, or both. 

At first, these agreements were unregulated by Big Brother. During this period of laissez-faire, our offices were doing several tenant buyouts a week. Then politicians and regulators said that these contracts didn’t pass the smell test. 

Fearing that tenants were bamboozled into handing over the keys without knowing the true value of their rental unit and wanting to keep track of how many buyouts were being inked in the shadows, rules were enacted to require landlords to provide a statement of rights to the tenant and give them the ability to mull over an offer and change their minds, even if they initially agree to the buyout agreement.

Have a willing taker that accepts the bait? Hold on.

Tenants also now have ample opportunity to consult with a tenants’ attorney or counselor to discuss their options and no means no – when a tenant turns down a buyout agreement, the owner has to wait a long time to broach the topic again. And localities want to know that the conversation is taking place, requiring owners to file paperwork with cities to bring these agreements into the light of day.

After new regulatory regimes were put into place, Bornstein Law continued to effectuate ethical, legal, and enforceable buyout agreements, but with onerous new rules, considerably less. Now with COVID upon us, we have been busy drafting these agreements because they are one of the few vehicles landlords have to transition tenants out of the unit. 

So, it seems we have come full circle.

We were the engine of a lot of buyout agreements at first, only to see a decline after regulators put a damper on them, and now we are experiencing a surge. With buyout agreements back in vogue, Daniel Bornstein will be hosting an August 12th webinar on this topic. Some points to be discussed:

  • The confluence of factors in managing landlord-tenant relationships during the pandemic and in what circumstances a tenant buyout agreement might make sense.
  • Myriad disclosure requirements, rules and timeframes tenants have to rescind the agreement, taking time to explain the nuances in cities throughout the Bay Area
  • From start to finish, how to broach the topic of a tenant buyout agreement and negotiate the “just right” dollar amount and why, whenever possible, we like to stay behind the scenes of these negotiations and take more of an advisory role. 
  • Why we often prefer tenant buyout agreements over owner move-in or relative move-in agreements (OMI/RMI) and why buyout agreements are sometimes mistaken for “cash for keys.”

We don’t say this in a braggadocio way, but we know of no other law firm that can explain tenant buyout rules across multiple jurisdictions in an easily digestible fashion. Our hard-won experience has given us the specialized knowledge to speak authoritatively on this subject, and we look forward to imparting our insights in this online event. To our knowledge, this is the first webinar of its kind and we invite you to join today.


Taking away a property owner’s right to evict is unconstitutional, it is being argued in the courts, and the law is on their side.

The pandemic has been incredibly difficult for everyone. Although the cunning virus doesn’t discriminate against anyone and doesn’t care if you are a property owner or a tenant, or what political persuasion you may have, somehow landlords have been asked to bear the brunt of these tough times. 

Fearing catastrophic unemployment and a tsunami of evictions, it seems that lawmakers got together to enact measures that protect tenants at risk of displacement, but comparatively little protections have been put in place for landlords. Now, owners are starting to speak up and commence litigation. 

Bornstein Law has said now is not the time to raise rents. Many localities have a wholesale ban on rent increases, but even in the case when a rent increase is permitted under Costa Hawkins, or when owners can use “banked” rent increases, we have said the optics of raising rents now are not attractive. Nor is it the time for municipalities to rewrite state law by depriving owners of their unlawful detainer rights, but that is exactly the goal of some lawmakers who have used the COVID outbreak to usher in sweeping new protections totally unrelated to the crisis. We are encouraged that by filing lawsuits, landlord groups have ensured that owners will get their day in court and there will be checks and balances. 

In commensurating and empathizing with our clients, we have regretfully said we can’t see the light at the end of the tunnel. In our last webinar, Daniel gave some grim predictions that but for the most egregious of circumstances, landlords cannot expect to recover possession of the rental unit until far-flung in the future.

The light at the end of the tunnel may now come in the form of a barreling freight train of litigation we’ll examine here. 

Christensen v. California Judicial Council

The California Judicial Council has a valuable role to play, for sure. The stated mission of the policymaking arm of the judiciary is to ensure “consistent, independent, impartial, and accessible administration of justice.” This 21-person panel composed of trial judges, state bar representatives, legislative representatives, appellate court judges, and the state supreme court is tasked with administrative duties. They set procedural guidelines to keep the courts operating efficiently, but it is far beyond their purview to legislate or weigh the interests of society. The judiciary cannot step on the toes of the legislature and make law, but it appears that is what the Judicial Council did in issuing emergency rule 1. 

An imbalance in the separation of powers is at the heart of litigation filed by the Pacific Legal Foundation. One of the plaintiff attorneys embroiled in the case, Michael Spoon, explains all of their constitutional concerns in this webinar hosted by the Apartment Owners Association.

One of the most compelling arguments being made is that under the fiat of the Judicial Council, unlawful detainer actions are suspended for 90 days after the state of emergency is lifted. Surely, the Emergency Services Act gives the Governor extraordinary police powers to temporarily suspend certain statutes, but this authority ends when the state of emergency is lifted – all statutes must be restored when Governor Newsom’s Executive Order is rescinded. How, then, can the Judicial Council deprive rental property owners of their unlawful detainer rights under state law for 90 days after the emergency declaration expires? They cannot, submits the Pacific Legal Foundation. 

“All of us are endeavoring to balance justice against this overwhelming contagion in order to minimize illness and death… We are at this point truly with no guidance in either history law or precedent, and to say there is no playbook is a gross understatement of the situation.”

California Supreme Court Chief Justice Tani Cantil-Sakauye

We applaud the good intentions of the judiciary to get ahead of a health crisis, but public policy cannot be made by this branch of government. At any rate, the unlawful detainer rights of owners should not be a casualty of the pandemic.

Evidence that the judiciary is making law is clear to see

The Judicial Council recommended on June 10 that the eviction ban should be lifted, but the top legal umpire, chief justice Tani G. Cantil-Sakauye, took exception. According to the Pacific Legal Foundation, she explained that she took the matter into her own hands because the legislature was not in session and there was no other functional arm of government to address a pending housing crisis.

As reported by the California Globe, Cantil-Sakauye’s refusal to lift the ban was influenced by low-income housing advocates and a UCLA  study that warned of mass homelessness if landlords were allowed to evict. We can only conclude by the chief justice’s own remarks that the judiciary has seized the moment to not just set procedural rules for the court but to create their own laws to deal with the impacts of the pandemic. 

The plaintiffs express confidence they will prevail when the case is heard in September. At issue, though, is whether the government appeals and whether the eviction moratorium is put on ice during the lengthy appeal process. Let’s cross our fingers. 

San Francisco given an inch, takes a mile

A recurring theme we have seen throughout the pandemic is municipalities pushing the envelope by exploiting the pandemic to not just preserve housing in a time of adversity but advance a larger agenda of tenants’ advocates. A case in point is San Francisco, and we can draw a parallel with the separate lawsuit lodged against the California Judicial Council. That is, rules or ordinances cannot conflict with state law that gives owners certain rights to recover possession of their property.

Related blog: Tenants’ advocates rewrite law under the guise of COVID

In San Francisco, any rent that has gone unpaid during COVID cannot be used as a reason to evict. Instead, it is reclassified as consumer debt. In an earlier post, we mentioned that several landlord groups balked at this ordinance and filed suit, claiming that once emergency declarations are lifted, the City cannot usurp the unlawful detainer rights of rental property owners. The landlord’s right to evict is sacrosanct under state law. Granted, the Governor can temporarily suspend these rights in a state of emergency, but once orders are lifted, localities cannot deny owners their rights afforded under California law. 

The lawsuit brewing in San Francisco will come to a head on July 30. The Judge initially refused to issue an injunction that would strike down the ordinance but set a later date to hear the case on its merits. We will keep you informed on the progress. 

Parting thoughts 

Landlords have been asked to make an inordinate sacrifice for the community, and they have not been as vocal as tenants’ advocates. We recommend you join a trade group, contact your elected representatives, call the radio shows, or otherwise let your voice be heard in this exercise we call democracy. Contracts matter, and when landlords and tenants enter into an agreement, that agreement should be honored. Please speak up and say so.


A mixed bag of legislation stands to help or hinder landlords.

There’s never a dull moment when following the prolific number of proposals simmering in Sacramento, and we are not always the bearer of bad news. We can report that a measure to slash rents 25% across the board has stalled. Assembly Bill 828 will not see the light of a hearing until later this summer. 

Rental property owners and operators can also breathe a sigh of relief that Assembly Bill 3260 has died on the vine. The legislation would have rewritten state law by prohibiting landlords from demanding a single, upfront security deposit and instead, allow tenants to stretch their security deposit over a six-month period or in the alternative, obtain a security deposit insurance policy to cover any damages caused upon their exit. This has been especially concerning with an exodus of tenants leaving their residence because of the pandemic, a topic we took on here.

Ominous proposals still on the horizon

Assembly Bill 1436 would compel landlords to defer rents for possibly years on end for tenants who have been unable or unwilling to pay for housing during the state of emergency.

While we would naturally expect owners to object to such a radical proposal, we were intrigued to hear a prominent tenants’ attorney vent on the issue and declare it to be bad policy.

How to pay the mortgage as renters withhold payments amid Coronavirus sheltering? 

This was a provocative question Daniel was asked to chime in on, and he called for more proactive measures that protect cash-strapped owners. 

Daniel floated around a sensible proposal to the San Francisco Chronicle, namely to get local and state officials together to create a pool of wealth that could come from community-minded billionaires, and in turn, cities can give interest-free loans to pay rent. Close to home, the San Francisco Board of Supervisors is considering the creation of a COVID-19 Rent Resolution and Relief Fund to provide much-needed support to eligible landlords whose tenants are unable to pay rent due to the crisis. The lion’s share of those funds would be available if approved by voters in a contemplated November ballot measure that would double the city’s transfer tax on residential and commercial property valued at $10 million or more.

On the statewide level, we were glad that lawmakers took a similarly balanced and inventive approach with a voluntary tax credit program to help landlords recoup rent that has gone unpaid during the COVID-19 crisis. It took the form of Senate Bill 1410.

In its original iteration, the bill would have covered at least 80% of unpaid rent attributable to the pandemic, in exchange for reasonable concessions on part of the landlord. Over the past week, however, the bill was watered down considerably and has lost its blessing from the California Apartment Association. Under the revamped legislation, landlords would not see relief until 2024 and then, only in the form of tax credits. In turn, tenants would be responsible for paying back the State. Many of you would say this measure is too little, too late, and that owners will not see any aid until far-flung in the future.

We hear your pain and can only say that something is better than nothing. It comes as little solace, but at least the State of California would be the debt collector. We have maintained that unpaid debt accrued during the state of emergency is not an attractive debt to chase. In San Francisco and Alameda County, however, landlords will unwittingly fill the shoes of a debt collector if back rent is not paid and to boot, cannot use the unpaid balance of rent debt accrued during the crisis as a theory to commence an unlawful detainer action.

In parting

Like most other pieces we disseminate, Bornstein Law has only scratched the surface here, but suffice it to say there is a lot on our radar and you can count on us for timely updates and informed advice whenever new laws and regulations appear. Thanks for the engagement and we look forward to continuing the conversation. An ever-expanding regulatory regime has engendered many questions, and we stand ready to answer them.

AB-1436 is the latest attempt to rewrite laws under the banner of COVID 

When Governor Newsom gave the green light for counties and cities to enact their own eviction moratoriums and exercise extraordinary police powers reserved for times of crisis, municipalities did not have to be told twice. Lawmakers were quick to enact temporary ordinances designed to prevent the spread of the virus and to preserve housing.

We believe this reflex was morally right and wholeheartedly agree with politicians, industry trade partners, and tenants’ advocates alike that now is not the time to attempt to evict tenants. Yet municipalities seem to be under the impression that they have been given carte blanche to rewrite state law. By definition, temporary emergency ordinances are short-term measures to deal with a calamity, but lawmakers have used these band-aid fixes as a laboratory of sweeping, enduring tenant protections and erode the rights of property owners.

Under the dome of the capitol, a proposal to slash rents 25% across the board was stalled, but undiscouraged tenants’ advocates concocted another bill that would authorize tenants to stop paying rent indefinitely.

Assembly Bill 1436 would create a statewide prohibition on evictions for back rent owed due to the public health crisis and give distressed renters up to 15 months after states of emergency have been lifted. The law would make no distinction between tenants with the financial ability to pay rent and those who have been genuinely impacted by the pandemic. Even tenants who have steady-drip, guaranteed government payments can stop paying rent, but it doesn’t stop there. Owners would not be able to tap into security deposits to recoup rent defaults, which means this reserve of funds can only be applied to property damage if this bill is passed. Since rent is deferred and not waived, it would also give tenants a mountain of debt – as one of our astute followers pointed out, “defer does not eliminate the debt, it just postpones it, so how will someone pay back 15 months of rent?”

Clever marketing – take away and what is remaining is a gift

AB-1436 is touted as a “balanced” approach for tenants to get back on their feet without fear of imminent eviction while allowing landlords to recover lost income.

Owners are stripped of the ability to use an unlawful detainer action, cannot tap into the security deposit, and are further prohibited from making a notation on the tenant’s credit report. Nonetheless, the bill is sold as a gift to landlords because they would still retain the right to sue the tenant to collect the debt. Having a host of rights taken away from them, landlords should celebrate they have any recourse whatsoever by pursuing civil remedies? That is how the sales pitch is narrated. California will take away most of your rights, but after losing months of rent, you still have a shot in the dark to recover losses in civil court.

Launching our bill to stop evictions for non-payment during the COVID emergency. California simply cannot afford a wave of mass evictions. We have to act.

Posted by David Chiu on Wednesday, June 10, 2020

Give an inch, take a mile

We don’t want to get lost in the weeds and rattle off a bunch of case law, but there is a cogent argument being made that the tampering with owners’ unlawful detainer (eviction) rights flies in the face of the constitution. Executive orders allow municipalities to suspend access to unlawful detainer procedures until such time the Governor’s order is lifted – they cannot last in perpetuity. In fact, explicit guidance is given in a provision that says no law can “restrict a landlord’s ability to recover rent due.”

Furthermore, the right of an owner to recover possession of his or her property based in part on any unpaid rent is well ensconced in state law, and just as settled is the inability of a city to use their police powers to enact an ordinance that conflicts with state law. Constitutional issues abound.

Nonetheless, many municipalities have availed its newfound powers to not just erect protections that are fleeting in nature, but ones that extend past the expiration date of the emergency. Worse, they are sprinkled with restrictions that defy California law. In San Francisco and Alameda County, for example, back rent debt accrued during the pandemic is reclassified as consumer debt and the owner is barred from using California’s eviction process to recover the debt or gain possession of the unit.

Municipalities push back from calls to waive rents

We have been captivated by the graffiti plastered throughout the Bay Area calling for the cancellation of rent and have taken our own photos of displays like the one depicted above. Of course, these acts of protest have also been animated by real people who display signs and chant for rent forgiveness.

While the cries for erasing rent debt altogether have been covered quite a bit from the media, it has not translated into any meaningful action as cooler minds prevail. We have seen Santa Clara County, San Jose, Berkeley, Richmond, and other locales take a serious look at wiping out rent obligations until city attorneys and other sober minds have pointed to constitutional concerns of taking property without compensation and the premonition that if rent waivers are passed, municipalities would be on the hook to pay back lost rental income once such an ordinance is inevitably shot down by the courts.

If we do nothing, we will see hundreds of thousands of evictions in our communities, and the number of homelessness will increase. It will result in more people on the streets.

~ Assemblymember Buffy Wicks

We take exception. Our own anecdotal evidence does not support the prediction that a tsunami of evictions will result from the pandemic, and there is no upside for landlords to go on an eviction spree. Instead, we have seen landlords and tenants working together to land softly on the other side of the crisis.

We always operate under the presumption that there are good landlords and bad landlords. Likewise, there are good tenants and bad tenants. By and large, though, owners and residents have felt the pain of one another and brokered payment arrangments whenever there is a shortfall in income. We recommend that all interactions with the tenant are documented, and if a more formalized forbearance agreement would give you peace of mind, we have prepared a library of correspondence to use here.

A resilient and adaptive bunch

The agenda of tenants’ advocates have morphed into many forms and fashions. If local or statewide rent controls are rejected at the ballot box, some concessions could be made to codify it into state law. If statewide law or ordinances are not savory enough, it can be brought back to the voters again to ask for a change of heart. If Costa Hawkins exempts single-family homes and this cannot be repealed, you can redefine the meaning of a single-family home in the courts and expose these structures to rent control.

We are awestruck by the inventiveness of a movement that is hellbent on scraping away owners’ rights and if it’s too ambitious to do it all in one bold initiative, the rights of owners can be melted away slowly as if it was a candle.

COVID provides the perfect cover to be exploited

While tenant protections were necessary to preserve housing during the pandemic, the public health scare has become a license to advance the agenda of tenants’ advocates who seek greater safeguards that would last far beyond temporary states of emergency.  Ironically, while landlords have been told to refrain from rent increases during disasters and adhere to price-gouging bans, our current crisis has served as a springboard for crusaders to accomplish what cannot be inked during ordinary times.

Continue the conversation

In a July 9 webinar, Daniel Bornstein will discuss landlording on the other side of COVID and recover lost rent, and we invite you to register for this free online event here.

Bornstein Law is in the business of answering tough questions, but after taking a survey gauging the impact of coronavirus on the real estate industry, we were especially intrigued by one query, which essentially asked if there were any “unidentified opportunities” for property managers in the COVID crisis or lessons to be learned. This prodding gave us some pause, but before we impart advice, some background is in order.

First and foremost, rental property owners have shined through.

We have seen dramatic images of tenants protesting in the streets, and this makes for a sensational story. The rhetoric and images of tenants’ advocates you may see in the media serve to drown out a more optimistic narrative we have witnessed firsthand.

We can attest through our law firm and property management arm that tenants are paying rents and if they are short on the full amount, the vast majority of tenants are communicating with owners. In turn, studious landlords are, by and large, working out mutually agreeable payment plans.

It is the nature of the media – and perhaps the human brain – to fasten onto what is wrong and not pay attention to what is right. A visual fire of a residential building is much more interesting than a building sitting there nicely with residents in harmony and walking their dogs outside. The inferno will make the news, while the humdrum will not. Rent strikes are the proverbial burning building.

What goes unreported are the countless acts of owners who are exercising compassion in giving leeway to cash-strapped tenants. These landlords are not studying the patchwork of local ordinances that specify what documentation is required for a hardship. What documentation of hardship is required, and when it should be produced is largely irrelevant – they are not bogged down in legalese; they simply have a “heart to heart” conversation with tenants.

Internally, we haven’t polled our clients but for that, we turn to our friends at the Small Property Owners of San Francisco. In their May newsletter, the results are in for the pointed question of the month – how has the pandemic affected property owners? We are encouraged that these tales are being told, and what they reveal is not a wave of protest or conflict, but cooperation and empathy.

Let’s get to the root of the question: Are there “unidentified opportunities” amid the pandemic, and what can we learn?

In a word, it is retention. Clearly, rental property owners and operators do not want a revolving door of tenants, but responsible ones who reside for the long haul. Retaining good tenants is good for business in every season, but even more imperative now.

For the time being, the courts have essentially been grounded to a halt, and so barring egregious acts of rogue tenants who pose imminent threats to health and safety, it is not realistic for landlords to believe tenants can be transitioned out of the rental unit anytime soon.

It is the prerogative of the owner to commence an unlawful detainer action, but it will fall on deaf ears because of court closures. Keep in mind, owners will lose their unlawful detainer action if rent is accepted after the action is commenced. Accepting rent in the midstream of an eviction action is a cardinal sin that made our top five reasons owners falter.

Better to work out a payment plan and condense the understanding in a rent forbearance agreement, a document we will gladly assist in preparing.

Related: Rx for COVID-19’s Impact: Boost Retention

It’s been said that a bird in the hand is worth more than two in the bush, but aside from receiving much-needed cash flow, now is a good opportunity to build rapport with tenants and ensure longevity with those who are temporarily distressed. We would be naive to say that all tenants will be appreciative of their landlords’ latitude in making payments, but a great many will.

And so, with long-term tenants even more valuable today, it’s vital to hold on to the residents you have. Communication has always been important in every season, but doubly so now. Whether by phone, email or text, communicating with them in the way they prefer to be communicated with is yet another signal you are trying to be a fair landlord or property manager.

Oakland tenant wish list doesn’t see the light of day. 

Under the guise of a COVID-19 emergency, the Oakland City Council is voting on over 60 Amendments to the Tenant Protection Ordinance.

If the ambitious agenda of tenants’ advocates cannot be passed with ample notice to the public or survive careful deliberation with input from all stakeholders, amendments can be rammed into an emergency ordinance designed to come to the aid of residents impacted by the novel virus. After all, who can be against the City responding to a public health crisis? According to our friends at the East Bay Rental Property Association (EBRHA), there are several changes in front of the City Council, and here are some of the most concerning:

  • Owners would no longer have the right to agree upon occupancy limits and would be compelled to welcome in additional tenants at any point during the tenancy to the maximum allowed by law.
  • Flying in the face of vacancy decontrol, owners would also be forced to accept sub-tenants. This indefinitely extends the terms of tenancy to new residents.
  • Although the position of the courts has been a 5% late fee is customary, it is proposed that late fees be capped at 1%.
  • A prohibition of unilateral changes in the terms of the tenancy.
  • Tenants would have expanded rights to sue landlords for harassment, adds teeth to tenant privacy.
  • The construction of Accessory Dwelling Units would be stifled with new barriers.
  • Propels a landlord’s failure to pay out relocation benefits to an affirmative defense a tenant can use in an unlawful detainer action.
  • MORE

› Download the proposed changes here (PDF)

The EBRHA argues these provisions have only a tangential relationship with the current crisis, at best, and if the tinkering with tenant protections were truly necessary to address the pandemic, they would be limited in nature and would end at the conclusion of the COVID-19 crisis. Bornstein Law also fails to see the nexus.

Related from Oakland’s version of rent and eviction relief during the coronavirus pandemic

Owners and operators can attend the virtual meeting on Tuesday, April 21 at 1:30 pm.

For the public good, or to the detriment of the landlord?

In an earlier blog, we submitted that owners of “unused” properties became a whipping boy with a newly minted vacant property tax designed to fund homeless programs and services, affordable housing, code enforcement, cleaning up the eyesore of blighted properties, and illegal dumping. The parallel? Owners can be harmed by initiatives that are marketed as being for the good of all, whether or not they have contributed to societal woes.

Where this line is drawn, and how much responsibility rental property owners should shoulder in solving intractable problems has been a perennial question that has been litigated and one we have chimed in on many occasions in the media. Ironically, more layers of onerous regulations crafted to protect renters will only serve to harm tenants, remove housing inventory and create more blight as property owners are disincentivized to beautify, upgrade, and maintain their real estate investment if they don’t just throw in the towel and purchase property elsewhere.

Oakland owners can reach out to their elected officials or use the EBRHA’s automated tool to email a voice of opposition to the entire City Council.

Early on in the public health emergency, many rental property owners felt left to the wayside. With newfound police powers, many municipalities ushered in sweeping tenants’ protections and this patchwork of new regulatory regimes culminated in our Governor issuing a statewide moratorium on evictions for non-payment of rent cases.

While there were five-alarm fire bells going off for renters, would there be any reprieve for owners?

Forgotten landlords argued that while tenants face job loss and substantial reductions in income as the result of COVID-19, owners face financial obligations of their own. Mom and pop landlords are especially vulnerable without the cash or credit availability to cover their costs when rents aren’t paid. Daniel Bornstein told KPIX Five that penalties that arise when owners are late on their mortgage should be proactively waived across the board.

The collective moan of financially strained owners and operators were eventually heard in a patchwork of relief we’ll go over now.

Fannie and Freddie were prophetic in averting a large-scale crisis in the making by offering mortgage forbearances

Holding or backing approximately 48.6% of outstanding multifamily mortgage debt according to recent data, Fannie Mae and Freddie Mac were one of the first to throw a life preserver to landlords, but with a caveat. Owners could benefit from a mortgage forbearance on the condition that they suspend all evictions for renters who cannot pay their rent because of the coronavirus.

These government-sponsored enterprises understood that since they had no contact with individual renters, the only way to provide genuine relief to renters was to provide relief to the kings of the castles. Missed rent payments translate to an owner’s inability to pay the mortgage, all but guaranteeing the entire property would go into foreclosure. Rental property owners are encouraged to contact their mortgage servicer to inquire about what relief is available.

Governor Newsom brokers a deal with lenders for 90-day mortgage payment relief

On March 25, Governor Newsom announced that many financial institutions have signaled their intention to work with owners who are unable to fulfill their mortgage payment obligations. Onboard is Citigroup, JPMorganChase, U.S. Bank, and Wells Fargo, along with nearly 200 state-chartered banks, credit unions, and servicers.

Specifically, the deal would defer mortgage payments for three months, although borrowers have the opportunity to request additional relief. There is also a pledge not to initiate foreclosure sales or evictions for the next 60 days. Another promise: not to report late payments to credit reporting agencies. Late fees will also be waived.

Select lenders have also implemented deferral plans during this declared emergency, allowing borrowers to put a hold on their payments for up to 120 days. These deferred payments will be applied at the end of the borrower’s loan period. Bank of America was a bit of a pariah – it would only agree to 30 days.

If owners are experiencing a drought in rental income, they are well-advised to reach out to their mortgage servicers regardless of who they are or where they fit into the scheme of the Governor’s deal. After weathering the foreclosure crisis of yesteryears, Bornstein Law can attest that lenders are generally willing to work out a solution with borrowers falling on tough times, as there is no upside for a bank to foreclose on a property. Communication is key.

Landlords attempt to find Uncle Sam to benefit from the federal stimulus package

The Coronavirus Aid, Relief and Economic Security Act, or CARE, was rolled out on March 27 and the temporary economic relief package is best compartmentalized.

Paycheck Protection Program, or PPP

PPP is a $350 billion tranche designed to divert an employment crisis by helping businesses maintain their payroll. Run through banks and credit unions, PPP infuses up to $10 million in loans to companies with 500 or fewer employees. If businesses avoid layoffs, some or all of the loan could be forgiven.

Many rental housing providers, however, have been left on the sidelines because of the interim final rule, which essentially says the payroll of third-party contractors is not calculated in the size of payroll. This is problematic because clearly, although landlords rely heavily on management companies and independent contractors, Section 1102 of the CARES provides that the maximum amount available under the PPP is equal to the lesser of $10 million or 2.5 times the “average total monthly payments by the applicant for payroll costs incurred during the 1-year period before the date on which the loan is made . . .”

Multifamily hasn’t been cut out completely so much as it has been seriously limited by provisions of the SBA Paycheck Protection Program. Many sectors of the industry, such as residential property management companies with multiple physical locations, passive owners, apartment buildings and those who contract third parties for property management are currently ineligible per SBA guidance.

~ Greg Brown, senior vice president of Government Affairs for the National Apartment Association, quoted in this Forbes article.

We hasten to say that while landlords cannot include payments to certain third parties as payroll costs for the purposes of a PPP application, they do benefit indirectly through PPP loans obtained by their tenants. With owners and operators limited in their ability to obtain direct relief through PPP, let’s move onto a more advantageous, less-publicized program for landlords, namely the Economic Injury Disaster Loan.

Economic Injury Disaster Loan, or EIDL.

Section 1110 of CARES significantly expands this program, which permits the Small Business Administration to grant loans of up to $2 million at a statutorily-capped interest rate of 3.75% and a term of up to 30 years. One component of the program is a shot in the arm of up to $10,000 in immediate funds “within three days” that, under most circumstances, doesn’t have to be paid back. This effectively makes it a grant, versus a loan.

These funds can be used for mortgage payments and other debts and so a hypothetical landlord who does not employ many people but has a substantial real estate portfolio can benefit greatly from an EIDL and receive a forgivable cash infusion to pay their mortgage, utilities, and other operating and maintenance expenses, without regard to the size of payroll.

These dual programs are not exhaustive

SBA Express Bridge Loans are meant to give quick cash of up to $25,000 to small businesses that have a business relationship with an SBA Express lender. The agency is also advertising a financial reprieve through debt relief afforded to businesses who already have an SBA loan and have suffered a financial impact in the wake of the pandemic.

Parting thoughts

The early report card is in, and it is one of frustration among owners and operators competing with many other businesses clamoring for funds. The East Bay Times tells the stories of many owners who are running into one brick wall after another in the application process.

This exercise is worth pursuing, however, with the same patience and discipline that is already the order of the day. Any red tape, delays, or lack of guarantees only serve home to drive home our advice to communicate with the tenant about their circumstances and work out a mutually agreeable payment plan. Bornstein Law stands ready to facilitate in that dialogue.

The agency assuages the concerns of rental property owners over phony comfort animals while enforcing the need for reasonable accommodations for those with a genuine need.

In an earlier blog, we said that the days are numbered for dubious and predatory websites that sell certificates, registrations and licensing documents for assistance animals to anyone who answers certain questions or participates in a short interview and pays a fee.

The number of these websites has grown exponentially with at least one offering a how-to manual on suing a landlord when an assistance animal is turned away. HUD has expressed skepticism over these letter mills and after issuing concrete guidance on assessing a person’s request to have a reasonable accommodation under the Fair Housing Act (FHA), the agency has finally provided some structure and clarity regarding an apartment’s owner’s prerogative to accept pets.

While we know this can be an emotional subject for many, Bornstein Law wants to reiterate that we are not against pets, no more than we oppose handicapped parking spaces.

We do believe, however, that rental property owners and operators should be the final arbiter of what goes on in their units, and that a mandate to accept animals should be reserved for tenants who require an animal for an equal opportunity to use and enjoy their homes.

This sentiment was echoed by the National Multifamily Housing Council in a statement that the heretofore lack of clarity in the law puts an undue burden on housing providers and “undermines the intent of the Fair Housing Act to help those truly in need of an emotional support animal.”

In stating their position, the NMHC goes onto say that the sorely needed guidance “will help rental housing providers mitigate abuse, ensure better compliance with fair housing laws, and, vitally, improve the ability of owners and operators to protect the rights of disabled persons to live with their service animals and emotional support animals.”

Disabilities saw and unseen

HUD’s new tutelage has made a clear distinction between a person with a non-obvious disability and in those situations when a disability is not readily apparent, documentation from a medical professional may be required. Although housing providers have less rope to hang themselves, we still need to be careful about prodding too much, or in the event a disability is obvious, asking for any documentation whatsoever.

The terms floating around can be like consuming a box of animal crackers

Many rental housing providers have gotten tripped up over the categorization of animals, whether the furry or scaly friend is a bona fide service animal, an assistance animal, an emotional support animal, comfort animal, a companion animal or other terms they can be lumped in, or simply just a pet.

Let’s compartmentalize animals into one overarching term – assistance animals – and divide these into two parts.

The definition of a service animal has remained unchanged. Namely, it is “any dog that is individually trained to do work or perform tasks for the benefit of an individual with a disability, including a physical, sensory, psychiatric, intellectual, or other mental disability.” Other species of animals are not service animals under the definition of the American with Disabilities Act (ADA).

While guide dogs for the blind are the first thing to come to mind, service animals can perform a host of other tasks like alerting their owner to signs of a seizure, retrieving items such as medicine or the telephone, interrupting impulsive or destructive behaviors, among other duties.

There are, however, “other trained or untrained animals that do work, perform tasks, provide assistance, and/or provide therapeutic emotional support for individuals with disabilities” that are considered assistance animals. This broader category of assistance animals need not be dogs and indeed, the media has made a laughing stock out of potbellied pigs, peacocks, turkeys, alligators, and other species that have been allowed to board airplanes or allowed into rental units, because these animals aide their owners.

Interestingly, HUD probes into whether the animal question is a common household pet.

In promulgating its guidelines, HUD offers a question and answer format, and one question is whether the animal is “commonly kept in households.” If the answer is in the affirmative, the owner or property manager should make reasonable accommodations under federal and state fair housing laws.

If the tenant who would otherwise be entitled to a reasonable accommodation seeks to co-exist with an animal that is not considered commonly kept in households, accommodation would not be required unless it falls under the rarest of circumstances. No kangaroos or monkeys allowed.


It is uncontested that a disabled person deserves reasonable accommodations under federal and state law – HUD’s new guidelines have not changed the landlord’s duty to accommodate residents with disabilities, but has provided a framework to get to the heart of the question: what is a disability?

In a balanced approach, the agency has painstakingly offered a framework for rental providers to evaluate the veracity of a tenant’s claim they are disabled while ensuring reasonable accommodations are not stripped away from tenants who are in fact disabled.

You can read the unabridged notice here… 

Caught in the crosshairs of an affordable housing crisis and a homeless epidemic, vacant property owners are seeing their properties being taken over by unwanted occupants, facing a punitive vacancy taxes, or both.

The occupation of vacant homes has been a newsworthy subject lately, brought to the limelight by single, working women and their children who took over an empty, investor-owned West Oakland house in November. The difficulty of homeless mothers trying to make ends meet amid high rents is certainly one that many can relate to or empathize with, and so the timing was perfect to spawn a movement known as Moms 4 Housing, a group that encourages people to seek comfort in other people’s homes without permission, much less a lease agreement.

Although the cause of preventing homelessness and giving a boost to working mothers is a platform that no one can argue with, the group’s means to an end has been put to the test.

While most squatters live in the shadows, there was nothing clandestine surrounding the move into a house on Magnolia Street that has purportedly been sitting empty for two years.

In front of a throng of reporters, community leaders and supporters, the unauthorized occupants and ambassadors for Moms 4 Housing used the stage to protest the lack of affordable housing in the Bay Area, calling special attention to greed-fueled speculators who they see as profiteers in the widespread displacement of struggling mothers throughout the Bay Area.

Come their day in court, however, an Alameda County judge ruled against the high-profile Moms 4 Housing movement. A one-page order now lands on the desk of the sheriff’s office to evict within five days.

With four mothers now camping out in the property, the household refuses to admit defeat and vows to continue the crusade to protect the human right of housing. Their ambitious agenda includes using eminent domain to reclaim property from corporate speculators and outlaw short-term rentals.

The anger of the emerging group is very heartfelt and legitimate, with virtually everyone agreeing the affordable housing dearth is unacceptable. Mayor Libby Schaaf goes a step further in an email statement, saying “the path to undo the harms caused by decades of exclusionary housing policy is to adopt legislation” that requires an “array of transformative changes that will help lift all of us out of this crisis.”

However, we were hard-pressed to find any officials or other sober-minded third-parties who condone the takeover of vacant homes as an acceptable means to accomplish meaningful change – certainly not Wedgewood Properties, the Southern-California-based real estate investment company that successfully staved off the continued occupation of its property.

Bornstein Law has not been a Johnny-come-lately on this subject. We have always maintained that the housing crisis is due to a multiplicity of factors and that owners should not be assigned inordinate blame. Nor should they bear the brunt of solving it. It takes an entire community to tackle this intractable issue, our founding attorney told the San Francisco Chronicle when asked to weigh in on the story. 

Telling the Chronicle that allowing the mothers to stay implanted in the home would open a floodgate of people moving into vacant properties and staking a claim to the right of occupancy, Daniel Bornstein says there is a sense of unfairness in the  expectation  that owners  should  shoulder  the  responsibility.

“In the end, the housing crisis is a community issue and a single owner isn’t the sole person to be responsible for the burden… it isn’t fair to the individual who owns the house to be responsible for housing people at the expense of others.”

You’ll get some argument from the attorney for the mothers. While ‘people over property’ has been a clever phrase coined for tenants’ advocates, it is not about private property versus human rights – it’s about challenging “certain business models that are destroying the fabric of our society,” according to Leah Simon-Weisberg, the legal director for Tenant Rights Program at Centro Legal de la Raza and acting counsel for the protesting mothers. She goes on to say that for-profit developers take advantage of the housing crisis.

Such lofty arguments had little sway in a court that is not tasked with reshaping housing policies and upending industries, but merely to decide whether the mothers are legally entitled to take possession of the Magnolia Street dwelling. Although the defendants filed a right to possession claim, this was a shot in the dark with no legal merit.

In an earlier post, we dived into the law surrounding squatters’ rights, the legal hurdles unauthorized occupants have to overcome when making an adverse possession claim, and how owners can take back their property with a forcible detainer action.

However insurmountable the odds of winning the legal entitlement to a property after breaking into an empty house with family and belongings in tow, it has been done. In a related story, The Mercury News recently followed the path of one man who moved into a dilapidated Oakland house and sued to be declared the home’s rightful owner – in this instance he prevailed.

Regardless of the outcome of the case at hand, a movement has been galvanized by the empathy and momentum their cause has gained. The undercurrents have even percolated to Saturday Night Live. When making his return debut to the show, Eddie Murphy reincarnates the beloved “Mr. Robinson” to make light of weighty issues like gentrification and squatters’ rights.

We all understand there is a crisis, but fixing it requires some creative problem solving and a constructive dialog that is often lacking in a contentious housing debate. You might think a group who advocates for the entry of vacant homes out of necessity and to protest a lack of affordable housing might welcome Senate Bill 50, dubbed the “More Homes Act,” with open arms.

Instead, Senator Scott Wiener’s ribbon-cutting ceremony of his revised bill was disrupted by protest.

San Jose Mayor Sam Liccardo also chimed in, tweeting, “Am puzzled to see @moms4housing take such an adversarial posture toward #SB50, which could do more to produce affordable and accessible housing than virtually any other bill in the last decade.”

We’re loosely reminded of former President Bill Clinton’s advice to the Occupy Wall Street movement, which was gaining steam at the time in raising awareness of income inequality, though the disconnected group was inept at rallying around a solution or even articulating any.

“I think what they should do now is work amongst themselves and with officials and business leaders and other labor leaders… I would organize some meetings and I would try to come up with one to three things that I was for. We know what they are against but now they have to be for something. So that would be my recommendation.”

~ Former President Bill Clinton

Local governments take a more insidious fight to vacant property owners

If elected officials do not embrace the illegality of occupying someone else’s home, they turn to a favorite tool to frown upon underutilized land and properties that can be better used for the public good – taxation.

In an early post, “Vacant property owners a whipping boy with new tax,” we said that Measure W, known as the Oakland Vacant Property Tax, saddled owners of properties that go “unused” for more than 50 days with a punitive tax to fund homeless programs and services, affordable housing, code enforcement, the cleanup of blighted properties and illegal dumping.

We are not always the bearer of bad news – since we last took on the subject, we can report the City eased the sticker shock for landowners subject to the new parcel tax on vacant properties, slashing the $6,000 annual fee in half for most people. Although over 70 percent of Oakland voters approved the measure because it was cleverly marketed, vacant land owners showed up at public meetings in droves in an attempt to add clarity to the ambiguous law and ask officials to cut them a break.

Owners say this concession is a good first step, but the tax remains a punishing expense for owners who are struggling to scrape up the funds to build. While this debate has been centered on well-funded speculators who presumably have the coffers to make vacant properties blossom to full potential, mom-and-pop owners have been largely left out of the discussion. We think a better route to encourage the development of vacant properties is to remove the maddening regulations that impede owners to build on their so-called vacant land.

This story is just one of many that color the challenges that rental properties face, but you can power through these obstacles with the informed guidance of Bornstein Law.

In what would be one of the biggest expansions of San Francisco eviction protections in decades, the Board of Supervisors unanimously approved an ordinance that would extend eviction controls to an estimated 35,000 rental units.

Owners of buildings with the first Certificate of Occupancy issued after June 13, 1979, have thus far escaped rent and eviction controls, but these exemptions will likely be stripped away. Now on the desk of Mayor Breed, the ordinance is a pen stroke away from becoming law.

You can read the unabridged ordinance here ›

The proposal comes on the heels of passage of statewide rent caps and eviction controls. Among other provisions, AB-1482 will impose rules throughout California that spell out when and why landlords can oust tenants, but, in a rolling time frame window, the bill only applies to buildings erected prior to the last 15 years and then, only when the tenant has occupied the unit for at least one year.

California law further exempts duplexes where the owner resides in one of the units and single-family homes that are owned by a natural person, and not by a corporation, real estate trust, or an LLC when at least one member is a corporation.

For San Francisco lawmakers, these protections are not inclusive enough – the City wants to build upon AB-1482 and double down.

We have noted that dozens of forward-thinking municipalities have enacted stopgap measures in anticipation of a binge in rent hikes and evictions, as some rental property owners attempt to evade the newfangled rules scheduled to go into effect on January 1, 2020.

More than preempting state law, San Francisco has blazed its own trail, taking a more proactive approach by using the political tailwinds to entangle more buildings into a web of eviction controls.

For the chief architect of the bill, Supervisor Matt Haney, it is all about uniformity.

As a crash course for landlords who must now comply with new rules and a refresher for the rest of us, San Francisco’s ordinance delineates 15 permissible reasons to terminate the tenancy and they can be found here.

Some of our takeaways

A throng of owners of post-1979 buildings will face a steep learning curve once their rental business is exposed to a vast set of rules that were once foreign to them.

We would expect owners of condos to be especially caught off-guard, since a large number of these units will no longer be exempt. Do not worry – Bornstein Law will not let you get lost in the woods, as our office is committed to helping owners familiarize themselves with the new lay of the land.

For buyers looking to have a blank canvas and for owners who are attempting to effectuate a vacancy, there are legal vehicles to accomplish these goals, even within the framework of San Francisco’s elaborate eviction rules.

Can’t buck the system, but savvy owners and buyers can use the tools given to them.

If you study San Francisco’s just cause ordinance, you can theoretically demolish the building, but it is extremely difficult to get approval to do this, rendering this option impracticable. We would also categorize Ellis Act evictions as drastic measures met with opposition, long notices and substantial payouts to displaced tenants, so let’s move on to more sensible, doable solutions.

When an owner or close relative wants to recover a tenant-occupied rental unit for their own use, an Owner Move-In or Relative Move-In eviction can be accomplished fairly easily, as long as there is no history of acrimony with the outgoing tenant and there is no reason to question the good faith intent to continually occupy the property for at least 36 months. Of course, hefty relocation payments are required whenever the tenant is escorted out of the unit through no fault of his or her own.

Sometimes, however, it is just easier to cough up funds for the tenant to leave on his or her own volition. As its name implies, a tenant buyout agreement is simply an understanding the tenant will voluntarily vacate the unit, in exchange for compensation, rent waiver, or both. If an owner elects to dangle these perks and the tenant accepts them, the owner can get the  assurance they will not be sued for wrongful eviction if there are any missteps, or the unit was not a principal place of residence.

When entering into a tenant buyout agreement, the owner is not only paying  for the vacancy – the money serves to remove any residual claims that could arise from the tenancy down the road.

More on buyout agreements ›

For those of you who want to cash out and sell the property

Certainly one surefire way to circumvent San Francisco’s expanded eviction rules is to sell the investment property. If owners elect to do this, they will be met with still more regulations in the form of COPA. Before you start singing the hymns of Barry Manilow’s “Copacabana,” we are referring to the Community Opportunity to Purchase Act, an ordinance we covered in-depth here.

Under COPA, owners of buildings with three or more rental units are obligated to notify “qualified nonprofits” of the intent to sell. Those organizations dedicated to preserving affordable housing will not only have the first opportunity to purchase the multifamily property; they also can match or best any subsequent offers from private buyers. Our firm can help you stay compliant with an ordinance still in its infancy.

Together, we’ll make sense of this all.

For over 25 years, Bornstein Law has helped rental property owners achieve their real estate goals in a shifting legal landscape. Although new laws and regulations blow in the wind, our commitment to your success does not. Although we are in yet another season of new landlording rules, you can absolutely count on our dedication to provide informed advice to power through challenges. Contact us to get started.

HUD takes the stance that animals should only assist tenants with a genuine need and not a mere assertion of a disability.

Dogs have evolved from man’s best friend to must-have accessories while their owners are dining, shopping or lingering in other public places. We don’t want to single out K-9s in this discussion, so we’ll add to this list cats, pot bellied pigs, peacocks, alligators, ponies, and other fury friends allowed into a rental unit when the tenant says they need emotional support.

It’s been some time since Bornstein Law has addressed the concerns of landlords who are called upon to accommodate comfort/emotional support animals, or “assistance animals” in the vernacular of HUD, but after the feds have now paid attention to this emotionally charged subject, it is time for us to revisit it.

While measures were put into place to balance the safety concerns with the right of passengers with disabilities to access air transportation, we are beginning to see some semblance of sanity on the ground as the government takes aim at websites that are essentially letter mills that crank out certifications of a tenant’s claimed disability without third party verification, much less an evaluation from a medical professional.

At least one website has a how-to manual on suing landlords if an emotional support animal is denied by the landlord.

Today, landlords have to define what an animal is, be it a comfort animal, an emotional support animal, an assistance animal, a bona fide service animal, or an ordinary pet. Heeding calls to add clarity to this wilderness, HUD has finally recognized that the system can be manipulated by tenants who falsely claim they need their animals to cope with a fictitious disability.

What’s reasonable?

When we first announced that HUD is scrutinizing bogus claims by tenants that they need these companions to alleviate anxieties, an astute observer on social media said “all animals are comfort and emotional support.” We agree. Animals bring joy to our lives, something we can attest to as pet lovers.

We also know that animals pose some serious issues to landlords in terms of their ability to assess pet deposit fees and apply policies that are uniform and in compliance with fair housing laws.

In a press release, Housing and Urban Development (“HUD”) Secretary Ben Carson expressed his disfavor with certain websites that peddle phony assistance animal documentation, stating that these animals should be reserved for those with a legitimate disability and not a means for opportunistic websites to profit by churning out documentation indiscriminately.

As the most qualified pediatric neurosurgeon to ever head HUD, his medical credentials are beyond reproach.

“These certificates are not an acceptable substitute for authentic documentation provided by medical professionals when appropriate…. these websites that sell assistance animal certificates are often also misleading by implying that they are affiliated with the federal government. Nothing could be further from the truth. Their goal is to convince individuals with disabilities that they need to spend hundreds of dollars on worthless documentation to keep their assistance animal in their homes.”

Anna Maria Farias, HUD’s assistant secretary for fair housing and equal opportunity, goes a step further saying these “pay for disability on demand” websites not only smell fishy, but they actually harm those who are in genuine need.

“Websites that sell verification for assistance animals take advantage of persons with disabilities who need a reasonable accommodation to keep their assistance animal in housing, she says, before going on to say the request for Federal Trade Commission action “reflects HUD’s ongoing commitment to protecting the housing rights of persons with disabilities.”

It’s as if an able-bodied person parks in a handicap spot. Cracking down on fraudulent claims is not peeling back the protections of the disabled. It advances them.

When a tenant merely asserts the need for a companion of any species, it has an impact on the landlord’s ability to assess pet deposits and fees and to apply policies relating to animals. If an assistance animal is denied co-tenancy, the rental property owner can be exposed to fair housing complaints.

An assistance animal should not be confused with a service animal trained to perform certain tasks such as helping a blind person navigate, alert to impending seizures, or aid in hearing impaired individuals.

2020 begets a new opportunity to become a better landlord or advising your clients how to cauterize risk and optimize the value of their investment portfolio.

We continue our tradition of offering resolutions rental housing providers might consider as we prepare to usher in a new year. Here’s what made the top of our list.

I will serve notices without delay.

Our hard-won experience has shown many landlords are conflict avoiders and would rather kick the can down the road, in the wishful thinking that these disputes will resolve on their on their own. Ordinarily, the passive landlord risks losing months of rent payments, compounded damage to the unit and other consequences unless he or she takes proactive action. Increasingly, though, time is not on the side of landlords, as two newly minted laws are added to the mix.

Weekends and court holidays will no longer count toward the expiration of three day notices, thanks to AB 2343, a statute that affords tenants more time to respond to evictions.

Under AB 1110, landlords will soon be required to provide a 90-day notice to tenants whenever rent increases exceed 10%, essentially giving month-to-month tenants an extra 30 days heads up, since under existing law, the owner must be afforded 60 days notice before the effective date of a rent increase north of 10%.

I will take care of my resident managers, in full compliance with employment laws. 

If your unit has 16 or more units, the law prescribes that a “responsible person” must reside on the premises and “have charge” of the building. These resident managers are considered employees and not independent contractors. Two items to be aware of:

  • The maximum allowable rent charged to a manager who is required to live on site as a condition of employment will increase, and the maximum amount of discounted rent that may be credited to the wages owed to the manager will likewise be adjusted.
  • Lawsuits by disgruntled resident managers and their enterprising attorneys are proliferating, with the financial consequences of a verdict against the landlord quite hefty.

Hiring, compensating and terminating resident managers is tricky, making it imperative that you familiarize yourself with the rules and perhaps tether your rental business to an attorney with experience in employment and landlord-tenant law. We provide more context here.

I will thoughtfully review my communication in rental ads, leases, and other correspondence.

With the collective moans against rising rents, displacement, and epic communes, the political rhetoric has taught us that landlords may have a target on their backs, but rental property owners can become more of a flaming beacon by muttering things that are better left unsaid.

Take for instance, a Craigslist apartment listing that says, “NO Section 8.” This is a prima facie violation of California’s fair housing laws and some opportunistic attorneys will cook up a lawsuit based on this exclusionary language.

Case in point is this story surrounding a San Diego attorney, who single handedly brewed over 50 lawsuits against offending landlords who advertised their disfavor of tenants with subsidized housing vouchers.

We were intrigued to come across this article spawned when one landlord put a clause in the lease requiring prospective tenants to certify he or she does not have psychological issues that would necessitate the need for an emotional support animal. The ad became a heat-seeking missile in the news feed, replete with quotes from tenants’ attorneys.

To avoid a costly lawsuit or backlash, landlords are well advised to keep their eyes and ears opened, and their mouths closed. When it comes to this type of communication, less is more.

I will review my policy regarding short-term rentals.

As Daniel told the San Francisco Chronicle, the horrific Orinda shooting that took place in the Airbnb Mansion Party on Halloween night illustrated the risk you face when you “arbitrage your house on Airbnb… you may be ‘sharing’ with people who you don’t know from a hole in the head.’

There are more considerations for would-be hosts in this blog on the scary legal issues the Halloween massacre epitomizes.

I will invest in deferred maintenance, respond to repair requests quickly, maintain reserve funds, and only use licensed contractors. 

When a tenant faces an eviction action, he or she can claim that the rental unit is inhabitable, and we have seen an influx of enterprising tenants’ attorneys who use this defense, many whom provide legal assistance to outgoing tenants at no cost.

Make sure your building is up to applicable code and when residents have legitimate repair requests, please don’t be a pennywise and pound foolish – make the repairs in a reasonable timeframe. We also recommend maintaining liquid reserve funds, having enough money in the bank to respond to emergencies.

If a project requires specialized knowledgeable or unique risks, it is not the time to skimp by hiring a friend of a cousin who is not licensed or performs work beyond the scope of their expertise. You may also consider hiring a property management company to take a hands-off approach.

I will review my lease with Bornstein Law to ensure it is not prehistoric in an age of new laws.

A recurring theme we notice in every season is the use of stale, templated documents, but with the advent of statewide rent caps and rent controls, using obsolete leases is all the more alarming.

We have studied AB 1482 and have requisite notices prepared. You are welcome to contact our offices to make sure your leases are compliant in a new era.


Coined the “Fair Chance” ordinance, lawmakers in Berkeley have introduced a measure that would prohibit landlords from conducting criminal background checks in vetting most applicants for rental housing throughout the city.

Owner-occupied properties that are triplexes, duplexes and single-family residences would be exempted, a concession made after mom-and-pop landlords shared unique concerns they live in close quarters with tenants.

The sweeping ordinance would be the first of its kind in California, though we hasten to say San Francisco and Richmond have banned criminal background checks in a smaller subset of affordable or subsidized housing. San Francisco illegalized criminal background checks in public housing, while Richmond’s ban goes a step further by applying the ban to all subsidized affordable housing and nonprofit housing.

Elsewhere, Portland and Seattle have inked similar laws that cover private rentals, though Seattle’s groundbreaking ordinance is mired in legal disputes. It seems that similar arguments are being made for and against Berkeley’s proposed amnesty against renters with a checkered past.

Predictably, tenants’ advocates led by Alameda County Fair Chance Housing Coalition and Just Cities, point out the structural barriers for ex-offenders reintegrating into society. Some studies cited find that formerly incarcerated people are almost 10 times more likely to be homeless than the general public, as their rental applications are discarded. On its website, the organization articulates in mission statement.

By creating equal opportunities for housing applicants, we can ensure that formerly incarcerated residents aren’t boxed out of housing and have a stable and healthy life upon release.

This sentiment is shared by Berkeley Mayor Jesse Arreguin and a chorus of others who note ex-offenders have paid their dues to society, and raise other concerns like unreliability of criminal reports, wrongful convictions, and a tendency for some landlords to promote fear-mongering.

A competing narrative by property owners and their advocates

Meanwhile, landlords argue for their free speech, property rights and the safety of neighboring tenants, claiming that such “ban the box” laws leave them blind to relevant public information about rental risks.

The law’s premise ‘is this paternalistic idea that the city gets to decide what information is relevant or important to a landlord’s decision making process.’

~ Ethan Blevins, an attorney at the Pacific Legal Foundation

If the ordinance is passed, aggrieved tenants could sue landlords over violations, similar to remedies afforded to tenants under Berkeley’s ban on discrimination against housing voucher holders. It seems that thus far, the city has not had the capacity to bring affirmative lawsuits against landlord offenders who blatantly advertise their disfavor of Section 8.

Yet as a sidebar, we urge property owners not to get a false sense of bravado from a lack of enforcement. There are many enterprising attorneys who can fill the void. A case in point is a San Diego attorney who recently single handedly filed more than 50 lawsuits on behalf of clients, alleging apartment listing ads contained language like “NO Section 8,” in violation of a local ordinance.

In an earlier blog, we went over a confluence of factors that have concealed rental risks. Limitations in technology, a culture of amnesty and new laws that impede the ability to detect evictions and other blemishes make it vital for landlords to do proper tenant screening on the front end, something our founding attorney accentuated in this video.

Our takeaways from Berkeley’s proposed ordinance and those that mirror it

Our role at Bornstein Law is not to take sides or legislate, but merely to advise owners and real estate practitioners on the legal implications of their policies and actions. The law attempts to strike a balance between the interests of property owners and the societal interest of transitioning stigmatized ex-offenders into normal life.

RELATED BLOG: Criminal background checks in tenant screening

Regardless of the fate of Berkeley’s ordinance, we can offer some emphatic statements.

If your rental business has a blanket ban against renting to tenants with a criminal history, it is likely a violation of fair housing laws and if you use criminal records to screen tenants, the policy must be narrowly tailored, meaning owners or their agents must weigh the nature and severity of the offense, and whether there is actual danger presented if renting to the tenant.
These carefully thought out policies should also be applied uniformly. If you deny a tenancy based on a criminal background check, yet welcome another ex-offender into rental units, you are inviting liability.
It’s also worth noting that landlords need explicit permission and signature from applicants to conduct a criminal background check. The field can be narrowed, however, by screening only those applicants who survive other checks, such as a credit report. Let’s move on to a larger, parting thought.

California defines housing discrimination more broadly than federal law, as a pool of “protected” classes are ever-expanding. When denying a tenancy, less communication is more, because common factors in costly lawsuits are landlord statements that shoo away certain groups or favoring others.

A landlord need not accept a certain tenant who is considered protected or vulnerable, but the prospective tenants cannot be given the cold shoulder simply because of their status.

For those of you who have followed us for any period of time, we are probably preaching to the choir. But even saying that may fly in the face of fair housing laws because of a religious connotation.

Winding down the earthly affairs of a departed loved one is a daunting task, and the pain of losing someone is often exasperated by the financial and legal complications that death brings.

When the estate home is occupied by tenants or beneficiaries/relatives or others who overwarm their welcome, this process can be all the more harrowing.

Let’s compartmentalize exactly who is occupying the property after the owner passes away. Are they tenants or licensees? That’s the quintessential question that must be answered, so let’s define the two.

It should go without saying that a tenant is someone who lawfully occupies the property by paying rent and have entered into a rental agreement with the deceased owner. What is worth noting is that upon death of the landlord, the tenancy will normally survive. Put differently, the passing of the owner is not a “just cause” for eviction, nor is it an opportunity for heirs to indiscriminately raise the rent without regard to rent control ordinances and the agreed-upon lease they inherited. Tenants cannot be summarily uprooted because there is a new sheriff.

When the property is legally transferred to someone else, the new landlord must honor the pre-existing lease, and likewise, the tenant is bound by the terms and conditions of that lease. In the eyes of the law, this covenant is a living, breathing creature and continues after the landlord’s passing.

When someone inherits a rental property and suddenly fills the shoes of the landlord, he or she is well advised to become familiar with state and local laws relating to this unique relationship, as there are many nuances in landlord-tenant law. In this already stressful time, adding new layers of complexity by staying compliant with myriad statutes and ordinances can compound the pressure and expose unsuspecting heirs to liability if there are any missteps.

It’s been said that ignorance of the law is no defense. That a novice landlord was bequeathed a rental property and was not versed in landlording rules will be not be an acceptable excuse in front of the court or local rent boards when a dispute arises.

More often than not, though, the heirs don’t want the investment property – they want to liquidate it, especially with the red-hot sticker prices of real estate in the Bay Area. A property that is vacant and properly staged will typically sell for more than if there are inhabitants residing in it. Bornstein Law can avail several possible avenues to help you effectuate the vacancy, but let’s move onto dwellers of the estate home who are not tenants.

When opportunistic or unauthorized residents claim the home of the deceased, many decision makers are conflict avoiders and put their head in the sand.

This is a delicate, usually emotionally charged subject. When the property owner passes, heirs and beneficiaries may assert they are entitled to the premises, or just kind of casually stake out a living space, as if pitching a tent, whether or not they are afforded the legal right to do so. Since they are close blood relatives or their acquaintances, the wayward guests may be parasitic and/or impede the sale of the property.

The buck stops with the Personal Representative, executor, administrator, trustee, whatever the title of the singular person in charge, but oftentimes this person lets people live in the estate home in an informal arrangement because it is family. This can quickly get out of hand, especially when roommates are added to the equation, rent exchanges hands, and it is later argued that tenancies are created. Worse yet, these inadvertent tenancies may be subject to rent and/or eviction controls, so the innocent heir looking to help someone out by providing a place to stay in the inherited home can be unknowingly exposed to a set of onerous rent and eviction controls when the resident hunkers down.

RELATED POST: The difficult prospect of evicting a relative

Unlike a buttoned-up tenancy agreement, a licensee is someone who is given limited access to a property. With Thanksgiving nearing, here is an easy example: You invite some friends over for leftover turkey and watch a football game. After a while, they will leave. As a licensee, they can’t stay there without permission or claim they are in possession of the property. They have to go when it’s time to go.

If someone continues to stay after the game is over and the pumpkin pie is gone, we won’t go so far as to say they are “squatters” who helped themselves to the premises wthout the owner’s permission, a subject we took on here. If they continue to stay after it is time to depart, though, the guest has violated a license to stay.

It’s the same concept with relatives and others who linger around when the owner passes. Assuming no tenancy was established with the guest/licensee, whoever is in charge of the estate can ask the unauthorized occupier to vacate the premises. If the recalcitrant guest continues to stay, a forcible detainer action can be filed.

An unlawful detainer and a forcible detainer are similar creatures – the end goal is to legally remove an occupant. Where the two differ is how the occupant plopped into the unit in the first place. If the occupant is a tenant, a carefully choreographed eviction procedure is required in the form of an unlawful detainer action. If the occupant is not a tenant but merely a licensee, a forcible detainer is the appropriate vehicle to create a vacancy.

We hasten to say that even without a written lease, a tenancy can be created when the guest pays rent to whoever is tasked with managing the estate’s assets. Let’s take a hypothetical.  The owner passes away and there is a sibling who wants to stay in the estate home. The individual reaches out to his sister, who has been appointed the Personal Representative responsible for liquidating the estate’s assets, and the incoming occupant offers to pay his sister to stay in the home of the deceased. The Personal Representative accepts the payment and sometime later, it’s time to sell and the PR asks her brother to leave. He refuses to leave.

In this event, an unlawful detainer would be necessary because money exchanged hands, a tenancy was commenced, and worse yet, the tenancy can be subject to just cause eviction rules. When monetary compensation is accepted, the occupant is not a licensee, but is a tenant and afforded the full suite of protections that come with a tenancy.

Parting thoughts

Being appointed the person to settle an estate is both an honor and a burden, and this burden is more cumbersome when family members, caregivers or others attempt to live in the property of the deceased. This requires stern action, “tough love,” if you will, but oftentimes this period is clouded by emotion and a reluctance to ruffle feathers. A competent attorney removed from the emotional fray can help make this process just a little easier so you can regain control of the property and move on to build greater memories.

Orinda was ranked one of “America’s friendliest towns” by Forbes and hasn’t recorded a homicide in nearly a decade, and so this posh community was an unlikely place for a mass shooting in a short-term rental.

While Airbnb advertises its value as helping make sharing easy, enjoyable and safe, it was sheer panic when a quiet Halloween was disturbed as jolted neighbors heard screams and the sound of bullets at a party around 10:50 pm, sadly taking the lives of five young people and injuring several others.

The Halloween horror took place in a spacious home nestled on the hillside at 114 Lucille Way. After the mansion was listed on Airbnb by owner Michael Wang , a Lafayette woman was all too willing to rent this gem, purportedly telling the owner that her asthmatic family needed a dwelling with fresh air to escape wildfire smoke.

In planned attendance would be 12 guests, just one shy of the maximum occupancy limits found in Section 17.3.12 of the Orina Municipal Code, but did this storyline smell a little fishy?

Daniel Bornstein said that a one-night rental on a Halloween night in suburbia should have raised eyebrawls, telling KTVU Fox 2 that greater scrutiny should be applied to ensure Airbnb is a good citizen.

13 is enough

Cities have wide latitude in enacting ordinances that regulate the modern-day iteration of the temporary flop and in Oriana, the number of occupants is capped to 2 people per bedroom, plus 3 additional people. As for the Lucille Way property, only 13 people would be allowed on the premises under the city’s formula.

Notably, owners are bound by stipulations made in the city’s Short-Term Rental Registration and Transient Occupancy Tax Registration Certificate Form and must attest their compliance with noise and parking regulations, among other rules. With everything in order for the get together, the transaction proceeded without complication.

A close-knit family reunion seemed innocuous enough, but what actually followed was a steady stream of over 100 revelers into the doors after responding to a widely promoted “Airbnb mansion party.” Take a look at the viral flyer that was purportedly used to publicize the doomed event on Instagram. BYOB and BYOW stands for “bring your own booze,” and “bring your own weed,” never a good omen for unsuspecting owners who hand over the keys.

Who will pay for ‘Airbnb Mansion Party’ deaths, injuries?

This is the provocative headline question posed in a San Francisco Chronicle article that enlisted answers from a panel of attorneys, Daniel Bornstein among them. The consensus?  It is unlikely that any criminal charges will be filed against the homeowner, renter, or anyone other than who pulled the trigger, or accomplices that aided in the shooting.

“Individuals are generally not liable for the criminal conduct of third parties,” Daniel told the Chronicle, though homeowners can be criminally culpable if there is a foreseeable threat to short-term rental visitants and this threat is ignored.

For example, if the owner of a short-term rental knows that a balcony is structurally unsound, lists the property on a home-sharing platform, and people then fall when the balcony collapses, this can rise to the level of a criminal act. Or, if the owner rents to groups that are known to have “bad blood” and there is a reasonable expectation that a fight will break out, it may be criminal to put together this toxic brew of people. This doesn’t appear to be the case at hand, though.

When short term rentals go horribly wrong, all parties tend to retreat into a shell and use the common narrative that “it wasn’t me,” and we would expect nothing less in this case. Before we test that defense, let’s look at where everyone stands on the firing squad in any inevitable lawsuit.

Poll: Americans strongly support reforming federal law to rein illegal short-term rentals

Does the buck stop with the homeowner?

When bodily injuries occur in a short-term rental, most claims would be governed by premises liability law, a subset of personal injury law. Premises liability law is based on the notion that property owners have a legal duty to keep lawful guests safe. In the eyes of the law, Airbnb guests are considered “invitees” and as such, are afforded a high degree of legal protection.

The riddle to solve is whether the owner’s negligence caused or contributed to the havoc wreaked in the rental home . California Civil Code 1714(a) makes it clear that:

“Everyone is responsible, not only for the result of his or her willful acts, but also for an injury occasioned to another by his or her want of ordinary care or skill in the management of his or her property or person…”

The plaintiff must prove four elements, two of which should be clear cut in this massacre. The homeowner owned, leased, occupied, or controlled the Airbnb-listed property and certainly, the plaintiff or plaintiffs were harmed when invitees perished.

What is left for a judge or jury to decide is whether the owners were negligent in the use of maintenance of the property, and this negligence was a substantial factor in causing the plaintiff’s harm. This will have to be aired out in court, and what we have in law is competing narratives.

We know from the news feed what the owner’s account is. He claims that after receiving noise complaints from neighbors, he checked his home security cameras. After discovering a raucous party, the owner told the Chronicle, he called the police and was en route to the scene at the first sign of distress, but not before a hail of gunfire erupted.

“We called the police. They were on the way to go there to stop them, but before we got there the neighbor already sent us a message saying there was a shooting,” he was quoted as saying. Whether the owner’s watchfulness, attention, caution and prudence (what we call a duty of care) is enough to let the owner off the hook will be litigated in court.

In the blame game, the owner points the finger to Airbnb, saying that homeowners “can’t control” who rent their homes on the platform. “Airbnb does not release the customer information before they really book, so we have no way to know. We also tell them there’s a maximum [number of] people and no parties, but people lie.”

Airbnb will take exception, arguing it is not a puppet and points out the owner is the final arbiter of who gets the welcoming mat.

Whatever plaintiffs emerge, they will surely submit that the owner should have anticipated something could go wrong at 114 Lucille Way.

The mansion has been on Orinda’s radar for some time, after the city issued citations for violating local parking ordinances and exceeding the legal capacity of the home. Neighbor complaints over noise and large congregations put the owner on notice that this was a potential party spot, let alone Halloween night, and he was obligated to take extra precaution, the plaintiffs will likely argue.

“It wasn’t me” may or may not work for the owner. With this box checked, let’s move onto Airbnb to see if they can get a black eye.

We would fully expect Airbnb to assert they were far removed from the chaos and is not responsible for the actions of gun-toting guests. The peer-to-peer sharing company was merely a conduit between the owner and errant occupants, they will say.

Airbnb didn’t pull the trigger, didn’t load the gun, but did they hand the firearm to the perpetrator by making the ‘Airbnb Mansion Party’ available for the world to see? Before testing Airbnb’s defense and examining what liability may await them, their response to the shooting and some background is instructive.

No stranger to controversy and lawsuits the world over, Airbnb’s PR machine was quick to respond in order to get ahead of the disaster and try to win in the court of opinion. Brian Chesky took to Twitter announcing a ban on “party houses” and a commitment to clean house by removing bad actors. Although we have heard these pledges before, the CEO and co-founder promises to accelerate this process in a 10-day sprint.

We might express skepticism that any monumental change can be achieved easily or quickly. We noted in earlier posts that it has taken years to fight endemic discrimination in short-term rentals and bring these properties up to compliance with fair housing laws, and this bumpy road towards cultural change continues to this day.

Although the token ban on party houses and strong language was a PR necessity, it’s unclear how this disfavor against rowdy parties will be enforced, even with newfangled technology and a dedicated party house “rapid response team” being assembled. By their own admission to reporters, Airbnb said parties, weapons, smoking and marijuana were already banned under existing rules, so it now becomes a matter of increased monitoring and policing high-risk rentals.

No plans for metal detectors or drug-sniffing K-9’s in short-term rentals are being contemplated , but in an email to employees, Airbnb Co-Founder, CEO and Head of Community, Brian Chesky, shared a four-pronged plan to instill trust in an anarchy.

A donut hole in Airbnb’s litigation strategy?

When it comes to maneuvering the law, Airbnb has been proactive in suing cities that stand in the way of profits by enacting ordinances that remove lucrative, but illegal listings from their websites.

A recurring theme: invoking the Communications Decency Act, specifically one part of that act known as Section 230. That Section says that internet companies are not responsible for what users post on it. For example, if you post something defamatory on Facebook, you can be held liable, but not Facebook. Yet, many cities have punched back and debunked this logic.

There is a cogent argument that these websites do much more than publish other people’s ads. Short-term rental websites hold the hands of users, helping them register and post listings, connect hosts with prospective renters, provide a mechanism for ratings and feedbacks, and last but not least, put money in its coffers by taking a share of the proceeds. Under this theory, Airbnb is liable for facilitating third-party booking by essentially acting as a co-conspirator.

Airbnb is suing so it could illegally rent out homes in the city. Not exactly the type of behavior you would expect from good corporate citizen.  
~ Miami Beach Mayor Dan Gelber (Bloomberg Law, 1/4/2019) 

The courts’ interpretation of the 1996 law and the protections it affords Airbnb and its rivals has been put under a microscope, with varying outcomes.  Several federal and state courts have sided with cities by agreeing the high-profile unicorn is complicit in providing aid and comfort to owners who engage in illegal rentals.

With such a horrific event on its home soil, It’s with little surprise that the City of Orinda has entered into the fray, with proposals being floated to further reign in short-term rentals, if not ban them altogether.

Following the logic that Airbnb is so hands on and more than a matchmaker, can Airbnb be held partially responsible for the shooting deaths of five bystanders and the injuries of many more? Its convoluted and ironclad “Terms of Service” says no, but given the high profile of this case, you can rest assured that disclaiming the horrific event away will not be so easy.

A mass murder is not the garden variety of damage to a property that can go away by referencing 70 pages of fine print , so we expect that there will be a fight. As Daniel told the Chronicle, “someone will have to compensate someone for the harm that was generated in that house.” Given that there is hell to pay by somebody, Airbnb is a natural target with its deep pockets.

Of course, the vast and battle-tested legal team of Airbnb is well prepared to get into the ring. While the company’s core business model is home sharing, a close second is litigation, so they will be a formidable opponent for any enterprising attorneys that go after them.

What about the renter’s fault?

Unless we are getting misinformation, there is a prima facie instance of deception on the part of the renter, who indicated the colossal home would be utilized for a small gathering of family members, only to turn into an epic party for college-aged students.

Instagram user “tonecapone300” was ostensibly the host of the party, and undoubtedly a person of interest in a criminal investigation. Whoever is hiding behind this handle, they will likely resurface in any future civil litigation as the organizer of the doomed event.

This is a perfect storm of the risk you face when you arbitrage your house on Airbnb … You may be ‘sharing’ with people who you don’t know from a hole in the head.

~ Daniel Bornstein to the Chronicle

Many hosts assume that if calamity strikes their short-term rental, it will be covered by homeowner’s insurance. Not true.

Business activities operated out of a home is likely not covered. While some policies allow owners to rent the home to a limited degree, the insurance company might require advanced notice, or to purchase a separate endorsement. A host’s personal umbrella policy may also have no protection when it comes to a business activity. Airbnb’s “host protection insurance” says it will cough up to $1 million to protect against third party claims for personal injury or property damage. This amount seems meager for the loss of five lives, and there are many loopholes, so if you are looking to rent out your home, it’s best to consult an attorney to ensure all the I’s are dotted and the T’s are crossed.

Short-term rental insurance is a topic we will take on in a future post, so be sure to subscribe, or follow us on Facebook for the latest insights.


From time to time, servicemembers and housing law intersect and with newfound protections afforded to the men and women in uniform, Bornstein Law wanted to revisit this topic.

We noted earlier that while tenants ordinarily have no right to terminate their lease early because of a new job or job relocation, military personnel have been carved out as an exception if they receive permanent change of station orders, or if their expected deployment will be 90 days or more. If either of these criterion is met, tenants on active duty can terminate the lease with 30 days’ written notice, without penalty.

That is courtesy, in part, of the Servicemembers Civil Relief Act, a 2003 law that restricts or limits actions against military personnel who are inherently transient. The Act was designed to relieve the stress of active duty service members and their families and allow military members to “devote their entire energy to the defense needs of the Nation.”

There are numerous obligations of both the landlord and departing service member under federal and California law, but we won’t get lost in the weeds now – suffice it to say that military personnel are given deference when being reassigned.

If amnesty is given to military members who are tenants, will they also be given favoritism if they are landlords?

That’s an interesting question we posed when we observed the case of Ballinger v. City of Oakland. When duty called for the Oakland couple, they left for Maryland for a short time but before doing so, rented out their home on a month-to-month basis. When it was time to come back home after their assignment was complete, however, the service members with two small children in tow had to fork over nearly $7,000 in relocation payments to their tenants.

The Air Force couple challenged the relocation scheme on constitutional grounds, but the court ruled they failed to “plead a cognizable legal theory” and that paying money to outgoing tenants is not an illegal seizure of property.

Military members get added recognition under new state law

The Governor recently signed a flurry of housing-related bills, two of them directly related to veterans, though not every landlord is a fan. In today’s polarized political climate, though, expressing concerns over added protections for veterans can be viewed as being against the troops.

SB 644 lowers limits on security deposits for active military – service members need only pay one month’s rent for unfurnished units and two months’ rent for furnished units.

If, however, the applicant has a poor credit history or track record of damaging rental property, these more relaxed security deposit rules would not apply. The lower security deposit requirement will not apply if the unit is rented to several individuals outside the service member’s close-knit family.

Although the bill has received widespread support and has been heralded by housing advocates, anti-poverty groups and veterans’ organizations, a high security deposit is sacrosanct to some landlords who fear that they will not have enough money on hand to pay for repairs and make no distinction that the tenant is in uniform.

At Bornstein Law, we say lighten up and give them a break. There’s plenty of more pressing concerns operating a rental business than shaving a security deposit for those who risk their lives to defend a person’s right to own a property.

Anti-discrimination laws extend to military members and veterans

We have stated in many venues that California has an ever-expanding pool of “protected” classes that cannot be discriminated against, and SB 222 adds veterans to a list of tenants who cannot be given the cold shoulder because of veteran or military status. Declaring that such bias is against public policy, the bill prohibits rental property owners from refusing to accept Veterans Affairs Supportive Housing Vouchers.

General Douglas MacArthur once said, “Whoever said the pen is mightier than the sword obviously never encountered automatic weapons.” We agree and pay homage to our brave heroes, but in landlord-tenant matters, we are reduced to the pen and legislation to ease the burden.

Everyone likes a comeback story, and at the risk of being wrong twice, we see a comeback story being unfolded.

Accessory Dwelling Units, also known as ADUs, granny flats, secondary units or cottages, are pint-sized units added to a property inside the envelope of an existing building and are typically developed in an underutilized area such as a garage, lower level storage area, attic space and the like. Traditionally, these compartmentalized units have been used to house relatives, but have been lumped into a larger public policy of increasing affordable housing stock, period.

In theory, these small dwellings could be a solution to California’s housing shortage because of their low cost and immediate feasibility, but in the real world, ADU projects have been costly and lengthy. We are encouraged, though, that the needle of progress is finally moving in the right direction.

We came across this scholarly report prepared for the San Francisco chapter of the Urban Land Institute entitled, “Jumpstarting the market for accessory dwelling units.” Drawing from the successes in Seattle, Portland and Vancouver, the study concludes, among other things, that making loans more accessible to more homeowners will spur ADU production.

The study also observes that city-approved manuals detailing the regulatory, design and project management processes furnished to homeowners, coupled with technical assistance and promotional efforts would likely help boost production.

San Jose, for one, got the memo and is taking the charge by releasing pre-approved floor plans for minimalist prefab homes. But, the pot is sweetened by a newly minted, city-funded loan program that would put $20,000 into the budgets of eligible homeowners to drop these pint-sized into backyards throughout the city.

Redwood City-based Abodu was the chosen one in designing the first round of pre-approved ADUs for San Jose households, and you can get a glimpse into the 495-square foot home here. For the price tag of $199,000, you can have a backyard cottage delivered and installed within two weeks.

San Diego has also been an early adopter and San Diego County Supervisor Dianne Jacob makes her case for slashing the red tape and cost barriers attendant to ADUs to make a dent in solving housing needs.

Up until the 911 calls for increased housing stock, land-use policy remained sacrosanct, no matter how dysfunctional the outcome.

Through carrots and sticks, the state has attempted to cajole housing-starved municipalities to take sensible steps toward slashing regulations surrounding ADUs, but a recent spate of laws has increasingly taken the form of a cudgel. Legislators have removed burdensome regulations like minimum lot sizes and setback requirements and have allowed up to two ADUs on every single-family lot. Senate Bill 13, meantime, axes owner-occupancy requirements and limits impact fees.

Even in San Francisco, the capital of burdensome rules for owners,  lawmakers have unanimously voted for a pilot program to waive Department of Building Inspection fees for ADUs, though the effective date has yet to be announced. For its part, though, the city has prepared an extensive guide with the attempt to sell the benefits of ADUs.

Our takeaways

As pioneers in navigating the permitting and legal complexities of constructing Accessory Dwelling Units or legalizing units in the shadows, Bornstein Law is encouraged that California and local municipalities have put away the scalpel and are taking a machete to convoluted city permits, exorbitant fees and other red tape.

Refreshingly, while we normally refer to added regulations when we cite a new regulatory regime, the one upon us now has peeled back onerous rules and so it may be time to reconsider whether building or legalizing an ADU makes more sense today. Of course, you can count on Bornstein Law to help you evaluate the risks an opportunities involved.

AB 1482 would impose statewide rent control and “just cause” eviction policies. To the elatement of tenants’ advocates, the measure has cleared many legislative hurdles to date.

As the chief architect of AB 1482, our own Assemblymember David Chiu, a Democratic from San Francisco, got some timely juice from Governor Newsom, who was recently quoted saying that statewide controls are “long overdue in the state of California.”

The venue in which Governor Newsom chose to make his remarks is not accidental and may be a double-whammy for rental housing providers. The occasion?

Mortgage servicers whose lending practices allegedly contributed to the 2018 financial crisis added $331 million dollars to the state coffers as part of a settlement. The Governor announced his support for AB1482 at an event promoting the allocation of $20 million dollars from this pot to provide free legal assistance to renters facing eviction. You can get the official scoop here, or for more on the controversial use of funds and concerns of misuse, there’s an interesting side story in this article.

What, exactly, would statewide controls look like?

Loosely modeled after Oregon’s calculus, AB 1482 would cap annual rent increases at 7% plus the Consumer Price Index, so let’s use a ballpark figure of around 10%. Nearly all of California’s rental housing stock, including apartments and some single-family homes, would be enveloped by the new law. With the state as the emperor, AB 1482 would apply in local jurisdictions where voters and elected leaders have rejected rent control policies.

Immune from the law would be new constructs less than ten years old, as well as detached single-family homes when the owner does not own more than 10 units in their name.

What says the rental property industry?

The debate has been well represented by hundreds of rental housing providers who flocked to the Capitol in opposition, and also in attendance in the latest hearing was Debra Carlton, the California Senior Vice President of Public Affairs.

“We don’t want to scare off development… We don’t want builders to go to other states. Unfortunately, we are seeing this now.”
~ Debra Carlton

She also reminded lawmakers that while new housing construction is sorely needed, developers have bowed out of many large residential projects originally slated for Southern California and have chosen to take the path of least resistance by going to Texas, Utah, Colorado and Nevada instead.

If AB 1482 becomes law, Oregon offers a premonition. As a pioneer in statewide rent control law, the state’s investment in multifamily housing has free fallen 38%.

“Just cause” eviction amendments

Bornstein Law has said in many venues that what can be asserted without evidence can also be dismissed without evidence. While photos, logs of correspondence, testimony of neighboring residents and the like go a long way for landlords to win an unlawful detainer action under the theory of a nuisance, AB 1482 would make this non-optional.

If the law comes to fruition, landlords need more than a good reason to evict – the eviction must be supported by the testimony of third-party witnesses. This tall burden of proof will make it difficult, if not impossible, to sever tenancies with problematic tenants.

What is the status of the law now?

After sailing through several processes, AB 1482 now falls into the lap of the Appropriations Committee,  a body that is known as a graveyard where difficult legislation can be quietly put to rest without forcing lawmakers to vote up or down on the bill, and we hope that this committee lives up to its grim reputation on this bill.

Here’s an infographic courtesy of the California Apartment Association illustrating where the bill is at now, and serves as a civics lesson for the rest of us.

Our final takes

It seems that the push for statewide rent control has come full circle. After voters resoundingly rejected Proposition 10 at the ballot box, we predicted that unrelenting tenant advocates would take the fight to local municipalities and they did, with varied success.

With still more upward pressure on rent, the case for expanded tenant protections reaches the domes of the Capitol again, but this time with more open ears and the sympathy of the Governor. While we hope that cooler heads prevail in the Senate, it is now time for rental property owners to think in terms of statewide rent and eviction controls.

Of course, you can count on Bornstein Law to keep you updated in the weeks to come and advise a course of action in the eventuality of new laws that impact your real estate business.

It is the responsibility of both the landlord and the tenant to maintain a habitable dwelling, but when there is a breakdown in communication, problems can brew and quickly escalate.

At the end of the day, rental property owners, real estate professionals, Bornstein Law and our property management arm, Bay Property Group, are in the same business. It boils down to managing relationships. Some are more difficult to manage than others.

After being inserted into thousands of problematic landlord-tenant relationships, the underlying cause in a staggering number of these cases is a lack of communication in many forms. Inspections of the rental property, or lack thereof, can serve as a perfect nest for this insidious miscommunication.

Often, the condition of the property is not brought into the light of day, and the culpability can rest with the landlord, tenant, or both parties who share the dual responsibility to create and maintain a “healthy home,” the term embraced by rental inspection programs.

Let’s talk about potential gaffes in the communication around inspections, starting with the tenant who has a responsibility to report maintenance issues.

Tenants can put shade on the property

Not uncommonly, tenants obstruct access to the rental property to conceal what is going on inside, and this becomes a cat and mouse game with the landlord. Whether it is because of nefarious activity, damage to the dwelling, or substandard conditions, we have seen tenants go to great lengths to keep their abode away from prying eyes.

Indeed, so adamant are some tenants in denying access to the unit, we have observed some who refuse to let in exterminators to remediate a bed bug infestation. Read our article on this subject

With the limited stock of affordable housing, we also see tenants who don’t want to initiate inspections or subsequent repairs for fear they will be displaced – they don’t want to stir up any dust.

Still other tenants are who we would call “silent tenants” who are too busy to engage with the landlord and, despite numerous notices, do not allow contractors access to their unit to make repairs.

See our article on the psychological profiles of tenants

Concerns of illegal immigrants

Tenants who do not have legal immigration status can be especially prone to burrow into the unit quietly and hesitate to report maintenance issues because they do not want to draw attention, a perceived threat that has been made all the more real by recent ICE raids. Rental housing providers should be aware that immigration status cannot be used as leverage against residents, a topic we took on in our article on what the immigration debate means for rental housing providers.

The cloth cuts both ways, so we pivot to the landlord’s role in ascertaining the condition of the building.

We have said in many venues, such as policing your rental units to identify unauthorized short-term rental activity, that owners or their agents should be the eyes and ears of their property. Although on-site inspections are usually conducted annually, an ironclad lease can stipulate to only two inspections in a year.

Of course, the landlord can get a glimpse into the condition of their property by making necessary or agreed repairs, decorations, alterations or improvements, assuming the tenant has not put up roadblocks as discussed above.

We hasten to say that in many rent-controlled jurisdictions, a failure to give the landlord proper access to inspect or repair the unit constitutes a “just cause” for eviction.

Some landlords avail themselves of Health and Safety Code Section 13113.7 and 13260 to repair, test, and/or maintain smoke or carbon monoxide detectors, but we urge caution when using vehicles such as this, because the excessive “dropping in” can interfere with the tenant’s right to quiet enjoyment and create hard feelings between the landlord and tenant, something we punctuated in our earlier article. We would also be remiss to say that, barring an emergency, landlords must give proper notice to enter the unit regardless of the reasoning to enter.

Real-life consequences

In a perfect world, rental property owners or managers would routinely inspect their properties, tenants would take good care of their units, alert the landlord/manager to any maintenance issues, and allow access to make repairs. Yet, it is not a perfect world we live in and there are plenty of opportunities for failures in inspecting or reporting.

These errors have reared its ugly head in many forms. An overwhelming number of blight complaints, health risks attendant to older housing stock, and recent infernos have forced cities to take a hard look at measures to ensure the livability of tenants by creating proactive inspection programs that identify potential hazards early on.

Of course, the tragic Ghost Ship fire in Oakland is seared into memory and has served as an impetus to these programs, as well as lead poisoning and other risks that threaten the most vulnerable populations, concerns articulated in this moving video by the Healthy Homes Department of Alameda County.

Many of these initiatives have a component of “self-certification,” the process by which landlords religiously make inspections, but are subject to random, proactive audits by the city.

Parting thoughts

Substandard conditions are not acceptable, but now is not the time for finger-pointing. Bornstein Law has always operated on the presumption there are good landlords and bad landlords and in like fashion, good tenants and bad tenants. Yet, we maintain that the vast majority of rental property owners are studious landlords who take good care of their properties and tenants, and so they should not be shouldered with an inordinate amount of blame.

Many problems can be avoided by being tethered to a law firm specializing in managing landlord-tenant relationships and, much like the spirit of proactive rental inspection programs, solve problems before they are enlarged.

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One of our top New Years resolutions for rental property owners was to have an emergency preparedness plan in place when Mother Nature strikes, and we are sad to fast forward to today when disasters have become the new norm.

RELATED: There’s a 72 percent chance of a major Bay Area quake by 2043

During tragedy, it is time for Californians to come together and extend our hands to victims, not for opportunistic merchants and housing providers to take advantage of the most vulnerable. Yet prosecutors throughout the state are fielding a steady stream of complaints by struggling or displaced residents who stare at rent or lodging hikes, sometimes in excess of 100%.

This disfavor of unconscionable rent hikes has been codified in Penal Code Section 396, which prohibits raising the price of many consumer goods and services by more than 10% after an emergency has been declared by POTUS, the Governor, or a city/county executive officer.

For any who would give in to the temptation to benefit from others’ misfortune, we will take price gouging and charitable solicitation fraud very seriously and will prosecute to the full extent of the law.
~ Kern County District Attorney Cynthia Zimmer

We hasten to say that local laws may also enact their own bans on price gouging. In recent memory, our neighbors in Vallejo ratified a proclamation capping rent increases above 10 percent per year.

Landlords risk getting down a rabbit hole of complexity

While the rules seem straightforward, our hard-won experience has taught us the law is cleaner on the page than it is in real life.

If you own rental housing that was not advertised for rent prior to a declaration of emergency, the law reads that landlords cannot increase the price cannot exceed 160% of the fair market value of rental housing, as determined by HUD.

There are no gambits to circumvent the spirit of the law

Landlords cannot justify an unlawful price by providing added-on services like cleaning, utilities, gardening and the like, because they offer a shorter lease term. Nor can landlords charge more than the allowable price when an insurance company offers to pay a higher price.

Finally, the statute criminalizes the act of evicting a tenant and then re-renting the property at a rate that the landlord would have been prohibited from charging the evicted tenant under the price gouging statute.

There are many nuances with the price gouging ban, best journeyed with an attorney experienced in handling landlord-tenant relationships. If you are contemplating raising rents in any circumstance, much less during a disaster, please seek informed advice first.

In parting thoughts, the vast majority of housing providers have shown great restraint and compassion for those affected by disasters, and we trust that this will continue. It is not only right. It’s the law.

In several past articles on fair housing and Section 8 tenancies, we said that no group should be painted with a broad brush and that discrimination lawsuits are the product of preconceived notions about classes of people.

We might be seen as hypocritical, then, when we outline five profiles of tenants. Not so fast -these personalities span every class, religion, color, source of income, and other characteristics. Indeed, tenants are individuals, and after managing thousands of landlord-tenant relationships, we can provide a contextual framework on where individuals fall into this spectrum.

The political tenant

This tenant inherently sees the landlord-tenant relationship fraught with tension because it begins with the presumption that the landlord is powerful, and the tenant is weak. When the landlord communicates with the political tenant, the tenant is always wary that the landlord is attempting to exploit him or her.

The silent tenant

The silent tenant is just too busy to engage with the landlord and as a result, the landlord may be obstructed in the relationship. For example, the landlord may send letters that go unanswered. When the time comes to make repairs and proper notice is served on the silent tenant, perhaps the landlord still cannot gain access to the unit – the tenant just doesn’t want to be bothered.

Passive aggressive tenant

The passive aggressive tenant can be disappointing because these type of tenants are nice as pie and you think you have a great relationship with such pleasant people but in the end, the tenant takes a surprising turn for the worse.

Passive aggressive tenants are very polite and engaging when you interact with them and they seem to be ideal residents until asked for some sort of responsibility in return as part of a give-and-take relationship. Once they are reminded of their responsibilities, the passive-aggressive tenant takes a hostile stance.

Although they appear to be very nice when there are no underlying issues, these type of tenants will suggest that the landlord has done something wrong to them when concerns are raised or instructions made by the landlord.

The dysfunctional tenant

The dysfunctional tenant’s personal life is constantly embroiled in crisis, making it difficult for them to properly engage in a landlord-tenant relationship. Oftentimes, the dysfunctional tenant will articulate the source of dysfunction to the landlord, in an attempt to gain empathy or sympathy. When the personal crisis leads to nonpayment of rent or other problems in the rental unit, the dysfunctional tenant has no shortage of excuses.

The fifth profile is the perfect tenant who religiously pays rent on time, responds to requests, they are personable and honorable, and that’s the type of relationship landlords would most likely expect.

Let’s move on to how rental property owners can respond to each persona.

As for the political tenant, communication should not be about the relationship itself, but about best practices in the relationship. If, for example, the tenant who has politicized the relationship has not paid the rent on time, you can address the failure to pay rent by saying, “you promised to pay the rent on time, we have a contract – why have you failed to do so?” Both the landlord and tenant have mutual responsibilities, and it is important to set expectations based on this contractual obligation without getting bogged down in the acrimony the political tenant tends to lean towards.

Documentation is always prudent, but even more so with the silent tenant. When tenants do not have the inclination to interact with the owner, the landlord should document their attempts to reach the tenant and amplify their written correspondence with these muted residents. What we’d like to see at Bornstein Law is a paper trail that shows a good-faith effort on behalf of the landlord to have fluid dialog with a tenant who does not reciprocate, so that when there is a conflict later on – for example, when the silent tenant does not grant access to make repairs because he or she has been uncommunicative – you have documentation that shows you as a landlord did your part to have open transmission of information.

When the passive aggressive tenant becomes animated and the landlord believes the tenant is incorrect, landlords should not get involved with drama but instead, pacify the situation. These tenants have a propensity for long-winded dialogue and emails, which can consume a lot of time and energy. The best practice is to not enlarge the discussion but to pacify the tenant by agreeing to disagree, use limited language, and deflate the aggression by moving on.

What landlords should know about dysfunctional tenants is that it is important to compartmentalize their empathy towards a tenant, which can diminish the control of the situation, and the fundamental objective of effectively running a rental business. The key to dealing with dysfunctional tenants is to see beyond the underlying crisis in their life and be firm with expectations.


COPA will give “qualified nonprofits” a right of first offer and the right of first refusal when an owner decides to sell a multifamily property.

After a cantankerous and litigated battle to regulate tenant buyouts, the San Francisco Board of Supervisors has upped the ante in tinkering with buyers’ and sellers’ rights and obligations by ushering in the Community Opportunity to Purchase Act (COPA).

When a multifamily property is put up for sale, “qualified nonprofits” will be first in line to scoop them up. Landlords who are subject to the ordinance must let nonprofit organizations know they intend to sell and give these providers of affordable housing the first crack at a purchase offer, but it doesn’t end there.

If a nonprofit comes to the trough, they will be able to match the offer of a private buyer. The seller is not obligated to sell to a nonprofit, but they must give the organization preferential treatment.

How to alert nonprofits of an impending sale?

To give first dibs to nonprofits, multifamily property owners intending to sell will have to notify the Mayor’s Office of Housing and Community Development (MOHCD), a conduit between owners and a cherry-picked group of organizations dedicated to creating permanent affordable housing for low and moderate income residents.

These pre-selected nonprofits need more than the wherewithal to purchase the property; they must also demonstrate the ability to manage it. The legislation will apply to any residential building with at least three rental units or a vacant lot zoned for at least three units, though there are exceptions to every rule.

Get strapped in

COPA raises a number of weighty questions and our friends at the San Francisco Apartment Association have stated the legislation is illegal and unconstitutional. The law is patterned in some ways after Washington DC’s Tenant Opportunity to Purchase Act and the District Opportunity to Purchase Act. Both laws have been the subject of much controversy and numerous lawsuits. Rest assured, San Francisco’s new legislation will similarly be contested.

Sellers and buyers of multifamily properties are ordinarily urged to consider the legal aspects of a transaction, but it is even more imperative to seek the proper counsel of Bornstein Law as COPA begins to take shape.

In the progression of tenants’ rights, there is an interesting riddle being litigated: What, exactly, is a “single-family home” insulated from local rent regulations under the Costa Hawkins Act?

California voters rejected Proposition 10 in 2018 and by so doing, drew a line to temper a city’s impulse to impose rent and eviction controls on certain properties, including single-family homes in most cases. Yet words matter.

Rent control by semantics?

The will of the voters could be circumvented and the agenda of tenants’ rights advocates superimposed, of course, if  a “single family home” is redefined. If the law changes the meaning of a single-family home, it naturally follows that protections will be stripped away from unsuspecting owners who become subject to a new regulatory regime after the language has been altered.

It seems that courts are open to hearing the argument that individual living quarters are considered a “dwelling unit” and thus, subject to rent regulation.

An Alameda County judge recently ruled that the owner of a four-bedroom detached home was indeed answerable to Oakland’s Rent Adjustment Program (“RAP”).

In issuing his ruling, the judge noted that, “For the purpose of landlord-tenant law, a ‘dwelling or unit’ or a ‘dwelling unit’ is not the entire property to which an owner holds title; rather it is an area understood to be committed to the habitation of a given tenant or tenants to the exclusions of others.” Inquiring minds can read the full decision here.

The same logic was used in this Southern California case, where the court ruled that in order for the property to be exempt from the Los Angeles Rent Stabilization Ordinance, a single-family dwelling must be “detached.” It found that the tenants’ rentals are not detached, but that each is part of a single larger structure containing other rental units.

So, gaining steam is a new logic that separates the parts from the whole. If single-family homes are the total pie, living quarters rented out to tenants are a piece of the pie. Those slices of the pie, it is being successfully argued so far, are governed by the protections given to tenants under local ordinances.

An independent judiciary

While we understand in math that fractions are part of the whole, the law has no mathematical certainties. What we have in law are competing narratives. Bornstein Law trusts that the courts will see beyond the horizon of landlord-tenant disputes and ensure all interests are considered impartially.

Where Bornstein Law fits in

Long before new legal theories were articulated by tenant advocates, we have warned that so-called rooming or boarding houses present unique challenges and especially so when tenants move in at different times with multiple rental agreements. Not to mention myriad code issues such as padlocks on the doors of individual rooms, and so forth.

Normally, we would say the stakes are ratcheted up in rent-controlled jurisdictions, but if tenants’ advocates have their way with case law, there will be no distinction with single-family homes.

Rest assured, the law is increasingly turning against landlords who create improvised or crowded living quarters just because space exists, and this disfavor has now trickled down to homeowners who may just want to make ends meet or get a few extra bucks by renting out a room or two.

As always, you can count on Bornstein Law for proper counsel in any type of rental relationship, however mundane or complicated.

We’ve all seen the anti-tobacco propaganda plastering the airwaves, but a revolution against vaping has been long underway. In San Francisco, for example, over 68% of voters recently ushered in Proposition E, a ban on the sale of flavored tobacco products including e-cigarette liquids, flavored little cigars, and menthol cigarettes.

In case you were wondering, landlords can prohibit the use of electronic cigarettes, also known as e-cigs, vapes, vape pens, mods and tanks, among other terms. The newest craze is the brand-centric term of “JUULing.” Some e-cigarettes are designed to resemble a traditional cigarette, while others take the appearance of cigars, pipes, pens and even sleek USB flash drives.

However cleverly marketed as a tool to improve the lives of smokers with an alternative and to accelerate cigarette displacement, the California Business and Professions Code, as well as the California Health & Safety Code, makes no distinction. Vaping is considered smoking and tobacco products include any “device that delivers nicotine or other vaporized liquids to the person inhaling from the device, including, but limited to, an electronic cigarette, cigar, pipe, or hookah.” It is well settled, then, that vapers cannot circumvent prohibitions of smoking, and this extends to rental units.

Under Cal. Civ. Code §1947.5, a landlord of a residential dwelling may prohibit smoking of any tobacco product, including electronic cigarettes, on the property or any portion of the building.

Now that we know that landlords can ban e-cigarettes, let’s dive into the “why” and “how.”

Although chain-smoking tenants notoriously leave behind nicotine-stained film that discolors everything the smoke comes in contact with, e-cigarettes are no better. Vaping is a misleading term, because the vapor is not water, but glycerin. Although semi-transparent, it does not go “poof” and evaporate into the air. It is slightly oily and the emissions are closer to aerosol gas than actual water vapor, holding particles composed of chemicals, flavoring and preservatives. These agents stick to any surface they encounter and after a long while, these particles form a thick film that is extremely vexing to discard.

Carpets, painted surfaces, and ductwork are especially difficult and expensive to clean. If you’d like more on the science of cleaning the damage left in the wake of vaping, consult this article from Landlordology.

Quiet enjoyment

In many venues, we’ve said that implied in every California lease is the tenant’s right to use the property for its intended purpose without interference. The fruit or candy-flavored vapor of electronic cigarettes may very well violate this covenant.

One of the take-aways from our in-depth piece on the use or cultivation of cannabis in rental units was that while the people have spoken and many landlords have joined the chorus who have legalized marijuana, neighboring tenants may not enjoy the putrid odors. To mar the quote of one famous Supreme Court Justice,  your right to toke ends where someone else’s nose and lungs begin. So, landlords who condone the use of electronic cigarettes, cannabis, or any tobacco product for that matter, must consider not only his or her preferences, but the collateral damage inflicted on other bystanders.

Ceasing the use of nicotine-delivering devices

Of course, nicotine devices in whatever shape or form are addictive and so it’s not beyond the realm of possibility that renters will ignore the ban and smoke anyway, requiring landlords to act. Rental property owners should consult with an attorney to review the lease to see if it needs to be updated for the modern age of vaping and other circumstances that may not be anticipated in a stale or templated rental agreement. In some circumstances, a change of tenancy, with proper notice, may be required to effectuate new rules imposed by the owner.

If other building occupants complain about the noxious odors and/or vaping residue emanating from the tenants’ unit, you certainly could allege that the behavior constitutes a nuisance and possibly proceed on a nuisance eviction.  Typically, even if a tenant has the “right” to smoke in a unit, if others complain, our office is able to proceed on a theory of nuisance.

Bornstein Law warned the rental property industry that the defeat of Costa-Hawkins repeal would by no means deflate resilient tenant advocates who would surely bring their agenda to local municipalities, and if statewide rent control was too ambitious, owner rights would be chipped away in piecemeal, as if watching a candle slowly melt away.

By all accounts, our predictions have come to pass, but this agenda has now taken a turn by an inventive movement to unionize tenants, and this perversion of labor law is gaining steam in California’s statehouse.

In an earlier post that surveyed many proposals by tenant advocates that are advancing under the dome of the Capitol, we chimed in on SB 529, dubbed the “Tenant associations: eviction for cause: withholding payment of rent.” This measure would allow tenants to withhold rent payments in protest when rent hikes exceed the rate of inflation.

The bill’s author, Sen. Maria Elena Durazo (D-Los Angeles) says that rent increases qualifies as a “grievance” to go on a rent strike with impunity. In essence, the legislation would insulate protesting tenants from eviction, so long as the nonpayment of rent is part of a peaceful assembly.

Sen. Durazo is well versed in labor law, with deep experience in union work that propelled her to a senior role with the Los Angeles County Federation of Labor, AFL-CIO. Her distinguished service on the National AFL-CIO Executive Council should be recognized.

During the Labor Day holiday weekend, Bornstein Law has made it a longtime tradition on social media to pay homage to labor leaders who have advocated for safety and the fair treatment of workers, so we, for one, applaud the progress made in the storied history of organized labor.

What leaves us scratching our heads in the abstract is how hard-fought protections of workers can be extended in any stretch of the imagination to the unionization of tenants who have entered into a rental agreement. Even more disturbing, though, is the prospect of a landlord losing rental income in a process whereby tenants can simply come together in a smoke-filled room and allege a grievance or complaint without any due process or requirement that deferred rent is actually owed to a landlord’s breach of the rental agreement or violation of the law.

SB 529 would create a hardship for rental property owners not based on the merits of the dispute or the transgressions of the landlord, but on the ability for disgruntled tenants to form a mob to level grievances about the owner, however unfounded or undebated, and take the law into their own hands to deny rent.

One of our followers astutely noted that rental housing providers cannot protest their mortgage, another poses the question of why developers would build more housing if the measure is passed, and yet another observer likened the proposal to thievery.

Undoubtedly, there are some actual wrongs that can be righted based on legitimate grievances, and we have said in many venues that while there are always some bad apples, we operate on the working presumption there are good landlords and bad landlords and in like fashion, there are good tenants and bad tenants.

Yet, there are already mechanisms in place to arbitrate who are good or bad actors, in a more thoughtful, deliberate process. Tenants have the prerogative under state law to withhold rent so long as they follow the procedures in Civil Code 1942. Tenants have the unfettered right to form an association without any restriction from the state. Tenants certainly have many venues to air out grievances to housing situations, whether by seeking help from housing departments, a phalanx of housing inspectors, mediation programs, rent boards, or the courts, as the California Apartment Association has pointed out in this letter opposing the bill.

This requirement will lead to significantly higher rents and put good tenants in danger by making it extremely difficult to remove bad tenants who are engaged in illegal and nuisance activity.


We are encouraged that the latest iteration of legislation to institute statewide rent control has stalled, but as we said in our introduction, there will be more insidious means to advance the tenants’ rights agenda, and SB 529 is a case in point.

Tenants have no right to vote among themselves to withhold rent based on an alleged and undefined grievance they have with the landlord, and we trust that no such misplaced right is afforded with new laws. Just as with labor laws that protect not just workers but employers as well, landlords should have some protections in a balancing act.

There are many layers of safeguards for tenants, and we should trust that these institutions will correct any grievances. Let the system work without holding rent hostage.

In an era when political rhetoric often falls squarely on the side of tenants and even squatter rights, Bornstein Law aggressively advocates for the right of rental property owners. Contact us for informed advice.



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.




If you ask the grandson of the iconic Flinstone house’s owner, Dino and Barney should keep smiling because it’s infectious. “I think the dinosaurs are beautiful. They make everyone smile and should stay.”

You’ll get some argument from Hillsborough officials, who have declared the bulbous, multicolored property dotted with dinosaurs a public nuisance. Assistant City Attorney Mark Hudak concedes the home is a site to be marveled but notes that other residents do not want to become the next Bedrock.

“It is one thing to spot this house when driving by on the freeway; you might find it amusing. It is a different thing to be a neighbor and see it all day, every day,” he told the New York Times. The town has filed a lawsuit in State Superior Court seeking to compel the owner to remove the menagerie of prehistoric animal statutes.

When we first shared the news on LinkedIn, it went viral and it’s interesting to view some of the comments by observers who, as of the date of this writing, were unanimous in their calls for the city to leave the 85-year old owner alone and continue the legacy endeared to so many.

What the law says

While being a bad neighbor is not itself a crime, there may be circumstances where a neighbor’s conduct is so egregious that it creates a public nuisance that affects the livability of the entire neighborhood. Of course, this is subject to interpretation. The underlying offense can mean anything from an owner letting their grass grow too tall, to operating a meth lab, and everything in between.

Ultimately, it will be up to a judge or jury to decide whether the reenactment of a 1960s prehistoric cartoon rises to the level of a public nuisance, defined in California Civil Code Section 3480 as a nuisance “which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.”

There are some clear-cut examples of public nuisances that are injurious to neighbors or the community as a whole. For example, raucous parties being held every night of the week in a quiet neighborhood, or a homeowner who digs a large pit in his or her front yard, risking that playing children can fall into it.

The Flinstone house is not so clear cut. Although the structure is clearly an eccentric one that doesn’t conform with community standards, therein lies its appeal and one may argue it is to the benefit of the community. We hasten to say, however, that the city has some legitimate claims that need to be aired out.

Does the town have a case?

According to the complaint, the owner made several modifications to the property, such as the addition of a retaining wall, steps, gates and a parking strip which allegedly creates “life-safety hazards.” It is also alleged the large figurines are so tall, they are classified as “unenclosed structures,” which require a permit.

We can confirm that all structures need to conform with applicable building codes, and so we will keep a watchful eye on whether there are any serious violations of the town’s municipal code.

Not to burst the bubble of Flinstone lovers, but the City Attorney also has point in saying that the opinion of neighbors matter. Those within close proximity of the alleged public nuisance should be deferred more consideration than transient drivers who enjoy seeing the Flintstone house from afar while driving on the 280.

In law, what we have is competing narratives, and we will see which narrative prevails.

Our takes, for what it’s worth

The legal process must play itself out and we’ll see if there are any legitimate safety concerns, code violations, or detriment to the neighbors of the Flinstone house, but as the creative types, we celebrate diversity, art, and expression. If the only objection to the property is it stands out as an oddity, we are rooting for the owner.


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.

Wholesale expansion to rent control was rejected at the ballot box in November 2018 as Proposition 10 went down in flames, but we urged the rental property industry not to celebrate for too long – our fraternity won the battle for the time being, but the campaign for a new regulatory regime steams forward as resilient tenant advocates are taking the battle to local municipalities.

Oakland is perhaps the most vivid example. Just as the cypress trees do not grow in each other’s shadow, Oakland no longer plays second fiddle to its sibling of San Francisco and is now a force in its own right. Yet history has shown that growth begets calls for increased tenant protections. If the agenda for statewide eviction and rent increase regulations had been too ambitious, tenant advocates still are chipping away at owners’ rights in piecemeal fashion on the local level, and Oakland has become one of most successful sandboxes in tinkering with owner rights. Even as the city carved its own destiny, it remains in the shadow of San Francisco’s onerous rent control rules.

Although cities have been ground zero for tenant advocates, the chorus has sounded once again to the Statehouse. The California Legislature has rolled out hundreds of bills impacting the rental housing industry, and we look here at some of the worst offenders here.

SB 329

This proposal floated by Sen. Holly Mitchell, a Democrat from Los Angeles, would make it illegal to deny a tenancy based on the applicant’s participation in the federal Housing Choice voucher program. Under current law, it is illegal to discriminate against a prospective tenant based on the applicant’s source of income. At present, however, Section 8 housing vouchers do not legally meet the source-of-income standard. SB 329 would change the status quo by expanding the definition of source of income to include housing subsidies paid by the government directly to landlords.

We hasten to say that while state law has lacked consistent standards in this regard, some municipalities have enacted their own protections for Section 8 tenants and so even if state law is mute on a landlord’s discretion to deny Section 8 applicants, some cities have resolved the quandary by enacting their own ordinances.

Section 8 has always been a trade-off between inspections, red tape and other less endearing aspects of the program and counting on Uncle Sam to pay its share of the rent on time. Yet the government shutdown has taught us that housing authorities might run out of money, forcing landlords to tap into reserves and casting doubt on guaranteed rent. The San Francisco Housing Authority is particularly broke.

Although the envelope of protected classes is constantly being pushed, landlords do not have to accept Section 8 tenants. Any other valid reason that can be used to turn down an applicant can also be cited to deny tenancy to a housing voucher recipient – a blemished rental history, for example. More suitable candidates can be found, but where landlords and property managers get in trouble is when they make emphatic statements about who their ideal tenant is, or paint an exclusionary picture of groups who are not welcome in the rental unit. When it comes to this type of communication, less is more. For more background, visit our earlier article on Section 8. 

SB 18

We have chimed in many times on San Francisco’s ordinance dubbed “The No Eviction Without Representation Act,” but for Senator Nancy Skinner, a Democratic from Berkeley, the right to free legal counsel to evictees should be extended beyond 49 square miles. The Homelessness Prevention and Legal Aid Fund would be established to provide legal aid to tenants facing eviction or displacement, using competitive grants.

Bornstein Law can’t help but draw a parallel in the language of this bill with Oakland’s vacant property tax. In an earlier post on the punitive tax aimed to repopulate land deemed to be underutilized by the city, we said that property owners were assigned inordinate blame for the intractable homeless problem. SB 18 likewise gives owners a black eye for a difficult situation they did not create.

However ill-coined, this bill would ratchet up the legal costs for rental housing providers and be especially detrimental to mom and pop landlords who would be forced to defend against numerous gambits attorneys use to delay an unlawful detainer action and coerce owners to settle the case. If we didn’t steadily rail against free legal representation afforded to tenants, you might say we are opportunistic in predicting this bill will only be a boon to attorneys.

AB 53

In an earlier article, we submitted that the law and a culture of amnesty stand to conceal rental risks. Bornstein Law is all about second chances and forgiveness. We are also about transparency and equipping rental housing providers to connect the dots and mitigate risk. If Assemblyman Reginald Jones-Sawyer, a Democrat from Los Angeles, has his way, however, landlords would be banned from inquiring about criminal records during an “initial application phase.”

Our friends at the California Apartment Association were instrumental in defeating a similar bill floated by Jones-Sawyer and we are optimistic that AB 53 will share the same fate.

Regardless of the outcome, we note that while turning down a tenant because of a criminal record can be legally justified, blanket bans on ex-offenders can run afoul of fair housing laws and if criminal records are used as a consideration in approving or denying a tenancy, the policy must be narrowly tailored. Evaluating criminal history is a subject we took on here.

SB 529

Sen. Maria Elena Durazo, a Democrat from Los Angeles, wants to allow members of a tenant association, by a majority vote, to withhold rent payments for up to 30 days in response to grievances with the landlord.

The withholding of rent is something most commonly seen as part of an affirmative defense to an unlawful detainer (eviction) action whereby the tenant or the tenant’s attorney argues conditions are not livable, a topic we chimed in on here. Regardless of the merits of the underlying reason for the grievance, SB 539 would legalize a mob mentality, permitting tenants to hold rent payments hostage so long as they band together in a team effort.

AB 1110

Rent increases are already highly regulated, especially so in rent-controlled jurisdictions but for Assemblywoman Laura Friedman, a Democrat from Glendale, regulations don’t go far enough. This bill would increase the length of notice required for rent increases during month-to-month tenancies. 90 days’ notice for rent increases of more than 10 percent would be sufficient under the proposal and 120 days’ notice would be required for rent increases exceeding 15 percent.

More on the horizon

We are also following AB 36, a bill that lacks details, but is aimed at stabilizing rental prices and increasing affordable housing stock. In his State of the State speech, Gov. Newsom renewed his commitment to enacting some kind of tenant protections this year. “I want the best ideas,” the Governor said. To lawmakers: “Here is my promise to you: Get me a good package on rent stability this year and I will sign it.”

What the proposed law will look like is yet to be seen, but suffice it to say it will be consequential to rental housing providers. A recent LA Times editorial offers a premonition on what shape AB 36 will morph into.

Whether under the dome of the Capitol or in city halls, Bornstein Law is committed to keeping you abreast of changing laws and regulations.

In our earlier article, we said that what can be asserted without evidence can also be dismissed without evidence and stressed the importance of producing authentic testimony, documents, and other evidence in the event a landlord-tenant dispute is enlarged and lands up on the courthouse steps.

When a client comes into our office, we can immediately get a gut level reading of the quality of their documentation. Some of our clients have beautiful files, in perfect chronological order, with leases, rent increases, and tenant correspondence, even a log of telephone calls in the actual file. Other clients’ files look like a hurricane and this disorganization or lack of documentation becomes problematic in the unfortunate event litigation arises out of a failed rental relationship.

Property management companies tasked with overseeing bookkeeping, trust accounts, and complying with DRE rules and regulations have their own unique risks in their fiduciary duty if bookkeeping is not meticulously in order. When the California Department of Real Estate knocks on the door and discovers untidy books, the property management company can lose its license. Further, if any irregularities are discovered in client accounting statements, it can be calamitous. Daniel Bornstein addresses this more at length in this webinar on the top 10 pitfalls for property managers, but let’s move onto how long a landlord should keep documents after the tenancy has been terminated.

Once a tenant moves out, how long should documents be preserved?

This question is one of cauterizing risk and the short answer is that documents should be preserved until you are no longer liable in a potential criminal or civil lawsuit. In one of our most widely disseminated posts, we noted that tenant lawsuits are proliferating throughout the Bay Area, and even the most studious of landlords are susceptible.

Perilous actions take many forms, be it wrongful eviction, constructive eviction, harassment, myriad breaches of the rental agreement, violation of any number of local ordinances, personal injury or negligence, and more. Contact our offices to learn how long the tenant has to raise claims after he or she has moved out.

Also, keep in mind that keeping documents accessible may be prudent in the event of a state or federal tax audit. Generally speaking, the IRS can audit a landlord’s tax return for up to six years or even longer if fraud is suspected.

The preservation of documents is a double-edged sword. On the one hand, it is helpful for the purposes of recordkeeping and may be a source of exculpatory evidence against the claims of a disgruntled tenant. On the other hand, an enterprising tenant attorney may request archived documents be produced as part of an onerous and expensive discovery process.

If it’s the landlord’s policy of destroying documents, this should not be a shredding party but rather, the owner should use discretion. If there is a claim at hand, deleting documents relevant to the case will raise eyebrows.

Did the tenant move in like a lamb and move out like a lion?

How long to preserve documentation and correspondence will be shaped, in part, by the nature of the client’s departure.

From our hard-won experience, when the tenancy ends amicably with the residents vacating at their own volition without a dark cloud of notices, prodding, haggling, arguing or rent board appearances, the chance for any residue is small. When there is a history of acrimony between the landlord and tenant, however, your odds at facing a lawsuit down the road increase exponentially. Whenever possible, Bornstein Law likes to obtain a release of claims from tenants, but this goes beyond the scope of this article.

In conclusion

We are sticklers for documentation at Bornstein Law, and generally speaking, the more documentation, the better. This should be well-organized and thought out policy evenly applied. The life cycle of documents begins even before the tenancy begins and continues throughout the duration of the rental relationship, and even beyond.

Perhaps you do not have an imminent dispute, but like going to the dentist for a routine check-up and cleaning, perhaps it’s time to sit down with an attorney to ensure your lease is up to date and your documents are in order. Don’t do the heavy lifting later – an ounce of prevention is worth a pound of cure.

At Bornstein Law, we’ve always likened litigation to a game of tug of war – the harder each side tries to win and pulls on the rope, the tighter the knot becomes. With that in mind, our approach is to untangle the knot and not enlarge the dispute. Generally speaking, 99% of cases settle and ideally, disputes are resolved amicably with the least cost and complications, but we all know it’s not a perfect world we live in. Let’s assume the tenant strenuously pulls and the situation is in fact enlarged.

When you get the dreaded call from our office to inform you the tenants are disputing an eviction, beads of sweat may spill from your brow, but it’s time to be composed and get all of your ducks in a row.

It’s been said that what can be asserted without evidence can also be dismissed without evidence.

Whether the underlying eviction action is based on unpaid rent or eviction for cause, the plaintiff (landlord) has the burden of proof at trial and it is their duty to prove that either there is rent owed or the tenants are in violation of one or more lease provisions.

In law, what we have are competing narratives, and if the unlawful detainer lawsuit goes to trial, it will ultimately be up to a judge or jury which narrative prevails, after reviewing the testimony, documents and other evidence presented by each of the parties.

Getting your financial house in order

Many overexuberant owners of rental property march into court with oral claims of non-payment of rent without bank statements and tenant ledgers, and other supporting evidence. To obtain a Judgment and a Writ of Possession to evict a tenant, the landlord must prove each of the following elements of the case through a combination of witnesses and documentary evidence:

  • The existence of a written or oral lease
  • The occupancy of the leased premises by the tenant
  • The amount of the agreed-upon rent
  • The failure of the tenant to pay the rent

A rent receipt or a canceled check, of course, would be the easiest way for a tenant to prove that rent was paid. Every so often, we encounter landlords who mistakenly accept rent payments after the unlawful detainer action has commenced. This is a cardinal sin because if the landlord deposits any money from the tenant during the unlawful detainer process, the tenancy has begun anew – the owner has forfeited the right to proceed. Taking rent after the expiration of the 3-day notice to pay rent or quit is so egregious, it made our list of the top 5 reasons why landlords lose unlawful detainer actions. Take a look.

Like unpaid rent cases, sufficient evidence should be gathered to prove other lease violations that precipitate the unlawful detainer action. For example, if the evictee caused damage to the rental unit, it is important to bring along pictures, videos, or any other proof that would back up the landlord’s claim.

What to bring to court

The following list is not exhaustive but serves as a good starting point on what rental property owners should be armed with on the day of reckoning in court. Remember, this is not a platform to angrily vent your grievances about a nightmare tenant, but to submit appropriate, authentic evidence to paint a compelling reason as to why the tenant should be transitioned out of the unit.

  • The Notice to Pay Rent or Quit, or the Notice to Cure or Quit if based on another reason;
  • The lease agreement with the tenant’s signature;
  • Correspondence with the tenant, which may include letters you wrote or received about the rental unit, emails, text messages, etc.
  • Photos or videos that show unsafe or unhealthy conditions if the landlord alleges the tenant damaged the unit;
  • Building inspection reports, if applicable;
  • Bills from any contractors you hired to fix alleged damages;
  • Evidence from neighbors of the tenant if they lodged complaints against the tenant you are attempting to evict
  • Other witnesses who have personal knowledge of the facts.

In the event witness testimony is warranted, it is best to get a subpoena issued and properly served to compel his or her presence in court. This is true with willing, cooperative witnesses whose employers require that a subpoena be served on the employee to allow time off to court.

Tenant defenses

At Bornstein Law, we’ve had cases that seemed to be complicated, only to be resolved painlessly. When we broker a successful outcome for landlords, their praise is often prolific, although, in the back of our mind, we breathe a sigh of relief and say, “wow, we were lucky.” Conversely, we’ve had cases that had all of the indications of being easy, only to have what would be a perfunctory unlawful detainer action turn on us and become mired in complications.

One of the biggest variables in this equation is whether the defendant is represented by any number of ferocious tenant attorneys that are prone to articulating affirmative defenses to the unlawful detainer action, so let’s talk about them.

We noted in an earlier post on California’s implied warranty of habitability that a favorite gambit of tenant attorneys is to allege the rental unit is unfit or unsafe for humans to occupy and thus, the tenant is absolved of responsibility to pay rent for the substandard unit.

Indeed, landlords have the duty to maintain a rental unit according to a set of minimum standards, codified in Cal. Civ. Code §1941, 1941.1, and 1941.3. In this video, we’ve outlined nine bulleted points on what these standards are.

We hasten to say that in addition to relevant state law, there may be local ordinances and building codes that dictate what constitutes a habitable rental unit and so landlords otherwise compliant with statutes may be in violation of rules closer to home.

The tenant or his or her counsel commonly argues that since the rental unit is not in liveable condition, withholding rent is justified, an argument that holds water under Cal. Civ. Code § 1942 and the seminal case of Green v. Superior Court.

The importance of providing evidence extends to the tenant and the burden of proof is shifted to the tenant when this affirmative defense is asserted. Other stalling tactics include any number of frivolous pre-trial motions, such as a “motion to quash service,” motion to strike, allegations of discrimination, and still more demurrers designed to put a monkey wrench into the court case and ratchet up the legal costs of owners.

Parting thoughts

When landlord-tenant relationships reach a boiling point and arrive at the courthouse steps, sound evidence is critical to gaining an upper hand during the proceedings. Regardless of the merits of the case, a lack of evidence not only will dampen a landlord’s chances of effectuating a legal eviction. Without evidence in the unlawful detainer action, the process can deliberately drag on for months and ensure the tenant lives rent-free.

Bornstein Law can stop the madness – please consult us first before going down a rabbit hole of complexity that surrounds disputed eviction actions.



It’s back to basics at Bornstein Law. While our latest articles on Oakland’s slippery slope towards expanded rent control and other posts have been reactionary, certain immutable rules do not blow in the political winds. One of them is state law concerning security deposits.

A bit of trivia: Disputes over security deposits are the most common reason why landlords are dragged over the coals in Small Claims Court, and it’s no mystery why. Rest assured, one of the first things on the mind of outgoing tenants – even before they ask themselves how to get that giant sofa around the narrow doorway – is how they are going to get their security deposit back on moving day. Yet dealing with these disputes are anything but trivial.

This topic recently graced itself in the media after a California billionaire developer has been accused of wrongly keeping millions of dollars in rental security deposits from thousands of tenants. Former tenants also claim they were not provided adequate reasons for damages in apartments when they moved out, as required by state law. Instead, reads the lawsuit, generic descriptions such as “maintenance charge,” or, “cleaning charge” are listed.

Presumably, the billionaire has some financial cushion and can take a hit, but other landlords don’t have the luxury to be so heedless – a costly lawsuit can decimate their rental business.

Security deposit rules are codified in California Civil Code Section 1950.5 and spell out four categories as lawful deductions from security deposits. Landlords may be able to keep all or a portion of the tenant’s security deposit for enumerated reasons:

  • Repayment of back rent at the end of the tenancy;
  • Repair damage to the unit that is not ordinary wear and tear;
  • Cleaning the premises to restore it to the condition at the beginning of the tenancy; and
  • to remedy other defaults that may be designated by the rental agreement.

The law cannot anticipate all circumstances, and so it’s plausible that other charges can be justified on a case-by-case basis.

What is normal wear and tear anyway?

When a tenant absolutely shredded the carpet or completely stained countertops bright red, it’s a clear reason to deduct from the tenants’ security deposit. Ditto for the condition of this apartment – when we shared this photo, it went viral.

For less egregious defects, it’s a judgment call.

Wear and tear is the average deterioration of furniture, carpets, and fixtures of a rental property due to regular use over time and although California vaguely defines this term, there is ample case law that provides guidance. Scuff marks on the wall, small chips of paint from door frames, tread and dirt in carpets, small nail holes in the wall, minor wear on appliances, and the natural decrease of useful life for appliances and carpeting can be considered the result of the tenant using the property for its intended purpose.

For those of you who are visual, we’ve put together a handy, one-page PDF that provides a framework to determine whether defects rise to the level of neglect or if blemishes are to be expected in the natural course of the tenancy.

Download our Security Deposit Deduction Guide…

Bornstein Law has a keen eye for what is reasonable wear and tear and what is not – when in doubt, please consult us first.

Security deposits can come in many shapes and forms

They can be called last month’s rent deposits, pet deposits, key deposits, and others, but don’t let these names fool you. Under the law, they are considered the security deposit period, and cannot exceed legal limits when they are all added up.

Also, keep in mind that certain courts have said itemized deposits can only be used for its stated purpose. For example, pet deposits can only be used for the damage that Fluffy wreaked in the apartment, and not for any other damages unrelated to the pet. To avoid exceeding the statutory maximum and ensure the deposit can be used towards any loss, we advise having a single security deposit.

What the landlord can ask for

California prescribes the maximum dollar amount owners can charge. For unfurnished apartments, landlords can ask for a maximum of two months’ rent if the apartment is unfurnished and up to three months’ rent if the residence is furnished. Owners are entitled to ask for an additional half-months’ rent when the tenant has a waterbed.

Although state law does not require landlords to pay a tenant interest on the retained security deposit, some rent-controlled cities do mandate this. San Francisco is in a rather exclusive club of cities that specify the interest rate to be paid. The rate of interest owed on deposits is established by the Rent Board.

A word about “non-refundable” deposits

If you have “non-refundable” deposit, for example, an automatic deduction for flea spraying if a pet was on the premises, or a deduction for painting, steam cleaning, replacing the carpets and the like, this flies in the face of the law. When a tenant complies with the lease terms, he or she is entitled to all of the security deposit back unless there was serious damage.

Move-out inspections

California has one of the most cumbersome security accounting rules. Every tenant has the right to a pre-move-out inspection on the eve of vacating the premises. If the tenant waives this right, you have no worries. However, if a tenant asserts his or right to a pre-move out inspection, he or she must be afforded the opportunity to be present during the walk-through inspection.

This exercise must take place 14 days prior to the tenant’s actual transition. Any deductions the landlord intends to take after his or her observations of the unit’s conditions must be itemized in writing. During this period of time, the tenant has the ability to remedy any itemized deductions in order to preclude the owner from taking them.

When the tenant finally delivers possession of the unit, it’s time to conduct security deposit accounting, whereby the landlord documents any deductions. Landlords have 21 days to perform this accounting and return a tenant’s security deposit in full or partially.

If any deductions are taken from the tenant’s security deposit, the partial refund check must be accompanied by a written itemized statement that lists the amounts deducted and the reasons for the deductions.

If the deduction exceeds $126, the landlord must share copies of receipts for the charges incurred to repair or clean the unit. If the tenant takes issue with deductions or he or she did not receive an itemization accompanied by receipts, they can send a letter to the landlord, and even though the tenancy has ended by this point, any correspondence should be taken seriously – if the landlord does not respond within a reasonable time, it is ripe for a Small Claims Court Action.

Parting thoughts

We remind landlords that when the carefully choreographed steps of the security deposit are ignored, liability is not limited to the dollar amount of the security deposit. Courts are all too willing to punish nonchalant owners who hold tenants hostage with the security deposit and unnecessarily pocket money just because the tenant forked it over. A phalanx of tenant attorneys will gladly help tenants settle the score.

When it comes to security deposits, documentation is specialized, timelines are unforgiving, and the rules must be followed to the letter. Bornstein Law is very good at managing landlord-tenant relationships from the cradle to the grave of the tenancy – contact our offices to avoid or resolve conflicts and cauterize risk.

It’s been a bumpy ride lately for owner-occupied duplexes and triplexes. Following a spirited debate, these units are now subject to rent control after Oakland City Council voted to place a 180-day moratorium limiting rent increases to the annual CPI adjustment and entitle tenants to a wide range of added protections, including the right to treble damages, attorneys fees and costs.

Tenant rights under The Rent Adjustment Program begin no sooner than when the tenant moves in – per the program’s requirements, landlords are to give incoming residents formalized notice of tenant rights, known as the Oakland RAP notice.

There was a flicker of hope for owners as the democratic process was seemingly playing itself out. Landlords outnumbered red-shirt toting tenants on Tuesday, February 5 in front of the Community and Economic Development Committee. In the sometimes raucous hearing, befuddled owners left the corridors, chamber, and galleries with more questions than answers after the Council delayed a much-anticipated vote, based on the recommendation of City Attorney Doryanna Moreno, who cited unspecified legal issues brought to her attention.

Although there was no resolution either way, the pause was welcome for a group of landlords who felt confident the proposal would at least be put under further scrutiny, if not defeated on the 26th. This hope was dashed with an Interim Emergency Ordinance.

For City Councilmember Nikki Fortunato Bas and Lynette Gibon McElhaney, relief from rising rents couldn’t come soon enough. The pair floated an Interim Emergency Ordinance to temporarily eliminate exemptions from the Rent Adjustment Ordinance for owner-occupied parcels with two or three units, and a newly minted council sympathetic to tenants’ rights pushed the emergency amendment through Thursday in an effort to curb rent increases. The Ordinance is implemented immediately, not open to further debate or discussion. You can view the ordinance on our website here.

RELATED ARTICLE: We told Mercury News that being proactive and considering preemptive rent increases is good legal counseling. 

This ends a long era of protecting mom and pop owners of two and three-unit buildings from rent and eviction control measures after a long and storied campaign by tenant advocates to put exemptions on the chopping block. Some background is in order.

It’s important to make a distinction between two components of the Oakland Rent Adjustments and Evictions Ordinance. One pertains to rent control and spells out tenants’ rights, while the other establishes eviction protections by delineating the reasons why a tenant can be evicted legally.

The Oakland Residential Rent Adjustment Program (O.M.C. 8.22.030) applies to buildings that have a certificate of occupancy prior to January 1, 1983, but a notable exemption was carved out for duplexes and triplexes when the landlord occupies one of the units as his or her principal residence for at least a year.

Historically, owner-occupied duplexes and triplexes were also exempted from just-cause eviction protections, but the status quo was changed on November 6, 2018, when over 58% of Oakland voters passed Measure Y. Take a look at the storyline leading up to the proposal that sailed through to victory.

Removing the so-called “eviction loophole” wasn’t enough – it was just the opening salvo in efforts to erode the rights of small property owners and remove exemptions altogether. Act Two: as a companion to Measure Y, Councilmembers Dan Kalb (District 1) and Noel Gallo (District 5) floated a proposal to apply the Rent Adjustment Ordinance, better known as rent control, to duplexes and triplexes that house the owners and tenants. To Kalb, it’s all about uniformity.

“The key here is we’re trying to make all of our rent laws consistent with each other and cover the same types of units … this is an effort to conform with Measure Y that was passed by voters last year.”

Fair return

A property owner of a newly covered unit who feels he or she is being denied a fair return on the investment may file a petition with the Rent Program and submit evidence that in the wake of allowable rent caps under the moratorium, the return on investment is less than the return for a similar risk. To request relief, owners must have several things in hand, but this goes beyond the scope of this article. Suffice it to say landlords must have all of their ducks in a row, with the guidance of proper counsel.

Our takeaways

We predict that an already deluged Rent Board will handle many more complaints and new lawsuits will sprout up for an expanded pool of potential litigants. If we did not steadily rail against expanded rent control, you might think we are opportunistic in saying the moratorium will only be a boon for attorneys. Expanded rent control will also put a damper on the construction of Accessory Dwelling Units at a time when these pint-sized units are sorely needed to ease the housing shortage.

Of course, owners of units newly subject to rent control will be exposed to a regulatory regime previously foreign to them. For those owners who are cast into an unfamiliar labyrinth of rules and heightened risk, you can rely on Bornstein Law to get you up to speed on the lay of the land and provide a counter-narrative to newly emboldened tenants and their attorneys. Contact our office for informed advice.