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There are tenants with many horror stories to tell about irresponsible landlords and the menagerie of shocking abuses are often plastered in the headlines. It’s much rarer, however, to see stories of landlords being abused, and so we were interested to come across the plight of these Oakland homeowners who were on active duty in the Air Force.

That duty called when the couple was temporarily stationed in Maryland, and so they rented out their home on a month-to-month basis to tech service tenants. When it was time to come back home after their assignment was complete, however, the service members with two young children were forced to pay nearly $7,000 in relocation payments because of Oakland’s Uniform Residential Tenant Relocation Ordinance, a law we chimed in on here.

The law took effect in January and is intended to help tenants who are displaced when property owners want to take their property off the rental market so that they or a relative can live there. Owners can turn out tenants only if relocation fees – $6,875.58 – $10,445.60  depending on the type of unit – regardless of the tenants’ income or if they actually use the funds to relocate.  An additional payment of $2,500 is due for families of lower income, containing elderly individuals and/or minor children.  Further, the relocation payments will increase on a yearly basis.

The Oakland couple has now attacked the ordinance in a federal lawsuit filed against the city. Ballinger v. City of Oakland alleges the law is not only misguided but violates the owner’s Fifth Amendment’s Takings and Public Use Clauses, as well as due process.

The plaintiffs’ attorney, Meriem Hubbard, explains why the ordinance doesn’t pass constitutional muster.

California, especially the larger cities, (has) a real housing problem — and that problem is not created by the people who want to move back into their own homes… So we are saying that that is a Fifth Amendment taking (of private property).

Our takes

Relocation payments have been judicially challenged before. In an earlier post, we noted that courts have likened unreasonable relocation payments to “ransom.” This is, however, the first time we’ve seen a tenant relocation scheme attacked on constitutional grounds in federal court. If the plaintiffs prevail, it would have some interesting implications in unraveling other ordinances, though the facts of this case are a bit unusual because the property owners are in the service.

A higher loyalty than rent ordinances?

It will be interesting to see whether the court gives some sort of deference to military service members who are also landlords when an order comes down for them to relocate elsewhere, whether from California to Maryland or being deployed oceans away.

The law has given preferential treatment to tenants when duty calls – although tenants cannot prematurely break their lease in ordinary circumstances, we explained earlier that an exception has been carved out for military personnel, a group who can end their leases without penalty if certain criteria are met. Will the same latitude be given to service members who own a rental property? Will armed forces members be absolved of doling out relocation payments?

If so, two “protected” classes would be pitted against each other – one the outgoing tenant and the other, the property owner, ironically both relocated.

A rising movement

Although the Bay Area has arguably been the biggest laboratory of tenant protection measures, they have been exported elsewhere. Portland has pushed the envelope when it comes to relocation payments and its ordinance, too, is being challenged in court by landlords who say they are stymied by the draconian ordinance.

Calls for expanded relocation assistance payments have been spreading in tandem with rising costs of living and a sense of unfairness that tenants reenter a merciless rental market, yet the case at hand illustrates that owners have hardships of their own. In the debate for relocation payments, owners are often mischaracterized as greed-fueled landlords whose immoral acts have fomented a homeless crisis, when in fact, mom and pop rental property owners are good stewards who treat their tenants with respect and provide cities like Oakland with its largest segment of safe, clean and affordable rental housing. They also are saddled with already high and steadily rising costs, just like everyone else.

We love this piece by the EBRHA that puts a human element on several landlords whose voices go unheard in the fevered pitch for tenant relocation payments.

Of course, Bornstein Law will keep you up to date as the Oakland lawsuit progresses, as well as other developments the rental housing industry should be aware of – we invite you to follow us on Facebook to stay in the know.

In future posts, we will dive into the relocation payment ordinances by city but until then, we wish you a happy holiday season and renew our commitment to helping owners power through their real estate challenges – contact our office for informed advise.

 

Renters who rely on Social Security Disability have no control over when they receive their check in the mail and so landlords who have a blanket policy of demanding rent on the first of the month may have to bend a little to accommodate SSDI recipients, suggests a federal court ruling. First, some backdrop.

Landlords are always a moving target when it comes to costly housing discrimination lawsuits and especially in California, a state which defines discrimination much broader than federal law. Tenants who profess a need for comfort animals or medical cannabis, recipients of housing vouchers, illegal immigrants and several other groups have successfully lobbied for added protections.

With the envelope of protected classes constantly being pushed, landlords find themselves walking on eggshells when denying tenancies or setting rules that may be perceived as favoring any group over another. Although California has defined disability more expansively than the federal government and has carved out new categories of renters entitled to increased safeguards, there are efforts underway in Congress to add teeth to tenant protections. This Kaine-Hatch bill would expand the Fair Housing Act and ban discrimination based on the source of income or veteran status.

Courts warming up, too

Fair Housing Rights Center in Pennsylvania v. Morgan Properties Management Company, LLC is a case that has percolated to our radar after a federal district judge in Pennsylvania ruled that landlords can expose themselves to liability if they refuse to adjust due dates for SSDI recipients who may get their checks after the first of the month. Landlords who do not budge on when the rent is due can create a “disparate impact” on disabled tenants, the court ruled.

Although the case can be considered persuasive law and is not binding in California, it sets a precedent and there is no reason to believe that its logic will not be transplanted in a state that has more ensconced protections than any other in the Union.

Parting thoughts & takeaways

Landlords should always exercise caution when fielding rental applications and talking with tenants on source of income, among other swampy subjects that can invite potential liability. We noted in an earlier post that when it comes to this type of communication, less is more. This is all the more true because there are “testers” who attempt to entrap landlords by documenting acts of discrimination. That’s right – their sole intention is to catch a landlord in the act of violating fair housing laws. In our day and age, then, every request for an accommodation should be treated as a potential test case intended to ensnarl the landlord in a costly lawsuit, the likes of which are proliferating throughout the Bay Area.

Finally,  Bornstein Law admonishes landlords and property managers to establish well thought out policies that are uniform, and we are strong advocates for education. If there is any slip up when it comes to fair housing laws, courts will make no distinction between the landlord and his or her agents.

When in doubt, contact our office for informed advice.

Owners of pre-1994 multifamily properties have a short window of opportunity to comply with the water-conservation requirements of Senate Bill 407 or risk getting a knock on the door from the toilet police this New Year.

If your rental property still has the original toilets, showerheads, or faucets, it’s time to get off the pot and replace these water-wasting fixtures. The law was passed in 2009 but has been rolled out in stages. The mandate for water-efficient plumbing fixtures is the last piece of the legislation to be enforced, with a January 1, 2019 deadline.

Compliance flows for plumbing fixtures are as follows:

Showerheads: The flow rate must be 2.5 gallons per minute or less.
Aerators: 2 gallons per minute or less.
Toilets: They must use 1.6 gallons or less.

How, exactly, does a landlord ascertain if his or her devices are compliant?

The flow rate is sometimes listed on showerheads and aerators, but the numbers may have faded like an Egyptian scroll depending on their age.

According to our friends at the California Apartment Association, a low-tech solution is to use a flow bag. That is, you can hold the bag under the aerator or showerhead, turn on the water and wait five seconds. After running for five seconds, it will reveal the gallons flowed. Local water utilities often provide the bags or they can be found online.

Toilets can be a little trickier. If you can stomach the ickiness, they typically have a date stamped inside the tank that can be found to discover whether it is an uncompliant 3.5 or 5-gallon toilet or if uses 1.6 gallons or less. Another creative way to flush out whether the toilet passes the new standards is to open the tank lid is to measure from the bottom of the water line and the full flush water line. The difference between the pre-flush water line and the full flush water line will be a number of inches. If the drop is four inches or more, you have an older 3.5 or 5-gallon toilet. If its 3 inches or less, then you have 1.6 gallon or less toilet.

The CAA’s trusted vendors contained in its Industry Directory can assist landlords in this thankless process.

Is there really toilet police?

No actual police force, but if there were, the officer might look like this guy, who you’ve likely seen in your bathroom before.

In all seriousness, heavy fines can be levied on owners when upon inspection, plumbing fixtures are not up to specs, and so we admonish all landlords to take the law seriously. California lawmakers have declared adequate water supply reliability is critical to the state and is committed to protecting aquatic resources, and so the Senate Bill is not a water-saving tip – it’s the law, with consequences for not following it.

As always, you are always welcome to contact our offices with any questions on this law and any other landlord-tenant concerns.

With the holiday season nearing, the traditional images conjured are families gathering to feast and enjoy quality time together, yet we all know that not all families are so harmonious. When conflicts reach a boiling point with family members living in close quarters, the status quo may no longer be sustainable.

Transitioning relatives out of a property can clearly be a gut-wrenching decision that many families face, and with the rising rate of adult children living with their parents and a growing number of multigenerational households, these tortuous decisions are being made with greater frequency.

One study found that 15 percent of Millennials aged 25 to 35 were living in their parents’ homes. To put that in perspective, that’s five percentage points higher than the previous generation and almost double that of the Boomer and Silent generations, eight percent of whom lived at home in 1981 and 1964, respectively.

With a notoriously high cost of living in the Bay Area, it’s not surprising that the numbers here exceed the national average, with another study estimating that nearly 1 in 3 Millenials are living with their parents. Coupled with the growing number of multigenerational families living under the same roof, the elements are rife for potential conflict.

There may be a feeling of guilt over the prospect of evicting a family member, but this may be the last resort when all else fails. If you are tasked with the thankless but necessary chore of removing someone close, it’s important to understand what you can and cannot do as a landlord.

For example, when tensions run high, you cannot use “self-help” eviction measures such as locking the doors if you want to go to sleep and a family member flops in too late at night. In rent-controlled jurisdictions, the tenant can only be evicted for a limited set of reasons – family drama is not a “just cause” under any rent control ordinance. A common theme we see, then, are owners circumventing eviction rules when the tenant is related, which can make an unfortunate set of circumstances even worse if the dispute is aired out in front of the rent board or in court.

Is the relative a tenant or licensee?

Often, when an owner rents to a relative, it is a casual relationship with no written lease.  Whenever rent exchanges hands, however, a tenancy is commenced.  Accordingly, the relative/tenant is entitled to proper written notice to leave the residence. Barring a written agreement, the tenant is on a month-to-month tenancy, requiring a written notice to move with a date specifying when the tenancy will end. The tenant will be allowed 30 days to move unless the tenant has lived in the rental a year or more, then it is 60 days to vacate. Check California state law (Cal. Civ. Code § 1946 & § 827a) for the exact rules and procedures for how landlords must prepare and serve termination notices.

Eviction is a carefully choreographed process, and now is not the time to be casual. The court will make no distinction between your familial relationship with the tenant, and a non-relative – the rules surrounding every other eviction will apply when transitioning relatives out of a rental unit.

If there is a lease with the tenant, the provisions of the lease must be followed and the process for evicting relatives is the same for evicting any other tenant. This includes written notice and if the tenant does not move out or fix bad behavior – for instance, paying the rent or correcting lease violations – then the landlord can file an unlawful detainer suit, trade word for eviction.

But what if the relative has not paid rent and no tenancy was established? In the eyes of the law, he or she is considered a guest who has worn out their welcome – in legalese terms, the relative is a licensee. A simple analogy is when you invite someone over to dinner, granting a license to your guest and that license lasts until the meal ends or at such time you want the guest to leave.

Forcible Detainers

When no tenancy was ever established, the owner can file a forcible detainer action. This remedy is similar to the more common unlawful detainer action, but it is usually used when the landlord alleges that the tenant has stayed in the unit without his or her permission.

Many of you may recall 30-year old Michael Rotondo, who infamously made the headlines after being evicted from his parents’ house in Upstate New York without paying rent. Take a look at Mr. Rotondo’s story which ended up with a judge giving him the boot and referring the case to an adult protective services agency to investigate possible abuse, neglect or exploitation of his parents.

The case bespeaks alarming abuse of vulnerable property owners who are not ensnarled by the typical fraudsters, but by family members, friends, caregivers and other trusted advisors within their circles. We’ve encountered this all too often at Bornstein Law and take great solace in halting these extended stays, if not averting abuse of the owner.

Before filing the forcible detainer action, the landlord must serve the tenant with a demand that the relative surrender the rental unit within five days from the date of service. To prove his or her case, the landlord must show that the landlord was in actual possession of the apartment at the time of entry and that a forcible entry has occurred, meaning the landlord did not consent to the tenant’s possession. The complaint must also state that the landlord was deprived of possession of the apartment; the landlord is seeking to recover possession; the landlord sent the tenant a demand for possession,  the tenant refused to vacate and the landlord is entitled to possession.

Like its’ sister proceeding for unlawful detainer, a forcible detainer is a summary proceeding and the tenant is afforded the opportunity to file a responsive pleading within five days after being served. If the unwelcome relative chooses to file an answer, he or she has limited defenses.

Potential pitfalls

Once an eviction action has started, the landlord cannot accept a penny more from the tenant because in doing so, the tenancy has begun anew and the landlord forfeits his or her rights to pursue the unlawful detainer. For more surefire ways to lose your case, consult our earlier article.

Try to work it out?

In the end, paying a relative to leave and helping them get onto their feet might be faster and less expensive than trying to evict them. Eviction can be costly, especially if it goes to trial. Family counseling sessions to foster a more harmonious relationship might have their merit and may even be more economical than a protracted battle in court.

Informed advice removed from the emotional fray

One of the most thankless and trying, but necessary duties of a landlord is evicting tenants, but transitioning relatives out of a unit can be exponentially more difficult. While legal counsel is always advisable when rental relationships fail, it is even more important to consult an attorney when relatives are involved because it is rather easy for owners to make rash decisions and understandably have their decisions be clouded by emotion. For informed advice, contact our offices.

Before we dive into the laws relating to squatters and how to remove them, we’ll share a shocking story originally reported here that illustrates the havoc unwelcome dwellers wreak on landlords who are often forced to arduously fight to take back their property.

The tale takes place  on the 22000 block of Ladeene Avenue, a quiet neighborhood on Torrance’ west side. A bewildered property owner was attempting to rent her yellow, four-bedroom rental home, only to discover it was already being occupied by an unknown trio who were living in the property rent-free. When her property manager noticed the oddity of a changed doorknob, he probed further to discover several boxes and a boogie board. Returning later that day, the stunned property manager discovered three squatters camping out. The dwellers stayed implanted after the police were called because the dispute was deemed a civil matter and worse yet, the unwelcome guests were believed to be subletting rooms to other unsuspecting tenants.

The squatters claimed they were victims of a scam after paying a security deposit and the first month’s rent to a mysterious middleman who can’t be found, but more likely, the unwanted residents were the scam artists, since they were unable to produce a copy of the fraudulent lease and refused to sign a rental application with the rightful owner.

The squatters were courteous enough, however, to attract other people off the street who agreed to fill out the rental application, in essence turning the property into a boarding house. One squatter even shared the good news with the owner that suitable housemates were found, but it was with little comfort that the core group of squatters was now opening the doors to more unauthorized tenants.

Out of at least $12,000 in unpaid rent, the loss of a security deposit among other expenses, the rental property owner has started a forcible detainer action to end her nightmare, though she is sure to incur more losses by doling out attorneys fees’.

Squatter rights difficult to be abridged

With high rents and fears of gentrification, California’s political and legal ecosystem seems to favor tenants and even those who have no legal possession. Translation: landlords may have to undergo a lengthy eviction process to remove squatters, especially when the unwelcome tenant comes equipped with a seemingly authentic property claim that has to be sorted out.

State law is not mute on this subject

A law was enacted in 1872 to prevent abandoned rural properties from going uncultivated and established the concept of “adverse possession.” This doctrine essentially allows a trespasser onto a piece of land to gain ownership of that land if the true owner fails to object within a certain period of time and if the trespasser pays faithful property taxes on the subject land. The trespasser is sometimes a stranger but more often a neighbor. 

Fast forward to 2018. In modern times, adverse possession is mostly cited when there is a dispute over property lines. Yet the standard of proof is high – in order for someone else to gain legal title over someone else’s land by claiming adverse possession, the person must prove continuous possession for at least five years and dutifully make property tax payments over a continuous 5-year period, among other things. 

In theory, then, when a squatter lives in a property long enough, and the owner does nothing about it, the squatter can end up owning the property. Of course, most squatters stop hunkering down or are exposed before completing the adverse possession process and so it’s improbable that the trespasser will meet the burden of proof to take over legal title to the property. 

They can, however, assert that there is a written, oral or implied rental contract with the owner, even present authentic looking leases or ownership documents to authorities when confronted. They have also been known to say that they have paid some form of rent by watching over or making repairs to the property or otherwise claim a bogus tenancy that will rarely hold up in court, but these smoke and mirrors can delay their eviction from the vacant unit and drive up the litigation costs of the owner.

Since 99% of cases settle, an enterprising squatter may prolong the eviction action in order to persuade the property owner to make a cash payment to move out. 

An organized effort

For an arm of the San Francisco Tenant Rights Union, squatting is not only a viable option to meet housing needs, but it is an economic necessity. The organization – dubbed Homes Not Jails – links to a list of vacant properties and while conceding it is difficult, instructs squatters how to gain tenants’ rights. This includes trying to find some other “consideration” besides rent in exchange for staying in the vacant property. In the absence of a written rental agreement, squatters are urged to be inventive in arguing a rental agreement exists, however far of a stretch it may be.

The group claims that it successfully established tenants’ rights when a landlord was aware of the squatter and gave up trying to get rid of them. By doing so, the argument was that there was an agreement to live in the vacant property in exchange for maintenance and security. Furnishings, setting up utilities in the squatter’s name and getting mail goes a long way toward a lengthy stay, the organization notes along with other tips. We found a handful of other “how-to” websites chock-full of advice on how squatters can avoid detection.

A legal remedy exists

A forcible detainer claim can be commenced where the occupant is living in the rental property without the owner’s permission or consent. This vehicle is similar to an unlawful detainer, but the forcible detainer is appropriate when no tenancy was established. To prove the action, the owner must be able to show:

(1) the occupant does not have the owner’s expressed or implied permission to occupy the rental unit;
(2) the owner of the real property has been displaced from the real property;
(3) lawful service of a 5 Day Notice to Quit;
(4) the occupants’ continued possession of the rental property after the expiration of the notice; and
(5) the fair daily rental value of the real property.

As with most unlawful detainer actions, this type of eviction begins with the service a 5-Day Notice to Quit. This notice must be served personally or by posting the notice on a conspicuous place on the rental property and mailing a copy to the occupant by regular or certified mail. If the name of the squatter or squatters is unknown, a fictitious name like John or Jane Doe can be used.

If the squatters remain in the rental unit past the expiration of the 5-Day Notice, a forcible detainer lawsuit can be filed. Assuming proper notice, if the occupant has failed to file a response to the Complaint within five days of service, the owner should file a Request for Entry of Default/Default Judgement with the clerk of the court, which will be entered if the clerk of the court finds that the Summons and Complaint have been properly served.

If the occupant of the rental property has been properly served and has not filed a response to the Complaint within five days of service the owner of the rental property should file a Request for Entry of Default/Default Judgment with the clerk of the court, which will be entered if the clerk of the court finds that the Summons and Complaint have been properly served. If, however, the occupant files a response, the owner can obtain a trial date.

Both parties must appear at trial to prove their case. For the owner, this means proving by testimony and documentary evidence that:

(1) he/she/it is the owner of the rental property;
(2)  the occupant of the rental property does not have the  owner’s permission or consent to occupy the rental property;
(3) the owner of the rental property was displaced from his/her/its right of possession of the rental property by the conduct of the occupant(s);
(4) lawful service of the 5-Day Notice to Quit; and
(5) the fair market daily rental value of the rental property (called holdover damages).

Whether obtained by default or at trial, once the judgment is entered, a Writ of Possession must be applied for and issued by the court, and this is then forwarded to the Sheriff’s Department, tasked with serving the Writ of Possession on the squatter(s) and posting a lockout notice on the front door with a time certain for the unwanted residents to vacate. If they remain past this date, the squatter(s) will be removed by the Sheriff’s Department.

Tenant attorneys can muddle the case

In an earlier article on San Francisco’s ballot initiative that entitles San Francisco tenants facing eviction to free legal representation, we noted that clever tenant attorneys reach into a toolbox of demurrers to delay eviction actions and ratchet up the legal expenses of property owners. Frivolous pre-trial motions, depositions, written discovery, and demands for a jury trial are some of the expensive mechanisms of litigation. Many squatters attempt to prolong the eviction action in hopes the owner will dangle money to entice the unauthorized occupant to move out. This legal extortion plot is all the more unseemly when the squatter is represented by free counsel. 

As you can see, encountering squatters is a harrowing experience and the ensuing court process is not so simple, making it imperative that you consult with the landlord attorneys of Bornstein Law to restore sanity.

 

In California, the citizen is the legislator if they pay $200 and manage to get a few hundred thousand signatures with a clipboard to qualify their idea for the ballot. There have been some crackpot initiatives – the state will not secede from the United States, and eating shellfish will not earn you a $666,000 fine per consumption or an imprisonment of up to six years – yet there are measures that usher in far-reaching changes.

One of the winners of last night’s election are hens, who will now enjoy more room to peck as voters said yes to the Proposition 12 chicken cage ban, but what about landlord rights? We are still digesting the election results, but here are some early observations that have jumped off the page.

Proposition 10 is rejected

In a blow to tenant activists and a win for landlords, Proposition 10 has failed at the ballot box, leaving California’s limits on rent control intact. There is no indication that tenant advocates have been deflated, as they look for the next fight and take their calls for expanded rent control in cities throughout the state. For the time being, rental property owners have dodged a bullet after voters overwhelmingly agreed that repealing Costa Hawkins would only exacerbate the dearth of affordable housing.

Proposition 5 shot down

Championed by the California Association of Realtors, this initiative would allow homeowners age 55 or older and those with a severe disability to take their property tax savings with them when buying a new residence, no matter the value of the new home, its location or how many times the buyer has moved. The argument that seniors can move to a home better suited to their needs without facing higher property taxes was rejected at the polls.

The current law remains on the books, and so eligible buyers can transfer a tax assessment if their new home is of equal or lesser value of their old home and only once per lifetime.

Oakland continues its trek down a slippery slope

As proud East Bay residents, we have been elated to witness Oakland’s growth but alarmed that it has become the latest bastion of tenant protections. Election night did little to reverse this trend and made further dents into owner rights.

The biggest newsflash for Oakland landlords is the passage of Measure Y, which removes the owner-occupied exemption from just cause evictions and allows the addition of eviction defenses. We have strongly opposed the measure to peel back landlord protections of an eviction ordinance passed 15 years ago, but the voters have now ushered in additional regulations for small owners who rely on rental income for their subsistence.

If you own a vacant property in Oakland, you will now get a hefty tax under Measure W, an initiative that aims to incentivize owners to put land and housing into use. Empty lots or buildings and condos that are used less than 50 days out of the year will be levied with a $3,000 to $6,000 parcel tax. There are exemptions for low-income seniors but for the rest of owners sitting on empty properties, they will be funding homeless services and illegal dumping cleanup.

The voters have also infused an estimated $9 million a year in new revenue for the city by passing Measure X, a progressive real estate transfer tax that is similar to the one San Francisco has. Most Oaklanders will won’t be affected because the transfer tax rate will remain at 1.5 percent, but land and buildings that sell for between $2 million and $5 million, the tax rate will bump up to 1.75 percent. More expensive properties that sell north of $5 million will be taxed 2.5 percent.

By saying no to Measure AA, Oaklanders stopped short of amending the city charter to establish a parcel tax – a kind of property tax based on units of property rather than assessed value – at the rate of $198 per parcel for 30 years to fund education services for pre-K through college students and career readiness.

San Francisco’s Proposition A sails through

Voters approved Proposition A by a comfortable margin, authorizing the city and county of San Francisco to issue up to $425 million in bonds at an estimated tax rate of $0.013 per $100 of assessed value to fund repairs and improvements the Embarcadero Seawall and Embarcadero infrastructure and utilities for earthquake and flood safety.
Landlords are authorized to pass-through 50% of the property tax increase to residential tenants, in accordance with Administrative Code, Chapter 37.

Pivoting to Berkeley

We noted in an earlier post that forward-thinking municipalities were taking a hard look at their rent control ordinances and how to modify them in the event that Proposition 10 passed. In Berkeley, Measure Q was mostly designed to position the city for a post-Costa-Hawkins world. Although Proposition 10 was scuttled, a provision of Measure Q exempting accessory dwelling units from rent control will become the law of the land.

The exemption does not apply for tenancies created before November 7, 2018 and portions contingent on the passage of Proposition 10 are preempted.

While we applaud Measure Q, we regret to inform owners that by passing Measure P, the voters have increased the tax on the transfer of real property from 1.5 percent to 2.5 percent for property sales and transfers over $1.5 million to fund general city purposes and the establishment of a homeless services panel.

Santa Cruz landlords score a major victory

Santa Cruz rent control advocates couldn’t sell Measure M to voters. With a total of $850,000 raised, the campaign was one of the most expensive in the city’s history but in the end, voters rejected the measure, which would restrict evictions, limit rent increases and create a board to enforce the rules.

Under a newly minted law, California businesses – including those in the rental housing industry – must conduct training that educates employees about sexual harassment and slays the beast.

The viral hashtag campaign #MeToo has exposed sexual harassment and sexual assault wherever it has reared its ugly head and has created a seismic shift in the workplace culture. After rocking every other facet of society, we noted in an earlier article that it was only a matter of time before inappropriate behavior in the rental housing industry was exposed.

In one way, the rental housing industry is particularly susceptible to abusive behavior, because a common theme we have observed with the spate of fallen high-profile figures is that they often appeared to be intoxicated by power and were in a position to influence the careers of their victims, many of whom acquiesced to the harassment or assaults for fear that reporting it would lead to their detriment.

With affordable housing such a rare commodity in the Bay Area, landlords and their agents similarily exert an inordinate amount of influence on one of life’s most basic needs – shelter. Unsavory housing providers can easily take advantage of this inherent power by demanding sexual acts in order to rent or continue living in a unit or make it difficult to feel comfortable in their home. At least one apartment dweller thought she found a gem in a $1,200 apartment in pricey San Francisco, only to find it came with lewd text messages and sexual entreaties. 

While this egregious case made the headlines, the phenomena is likely widespread, because tenants often don’t report it – many are captive because they can’t afford to move out.

New law expands training

Until now, only businesses with 50 or more employees were required to provide sexual harassment prevention training, but SB 1343 will mandate training to businesses with five or more employees, including temporary and seasonal workers. The author of the bill, Senator Holly Mitchell, D-Los Angeles, says this will fill a gaping void.

Millions of California’s most vulnerable workers are not being informed of their rights and protections nor trained on how to detect work-inappropriate behaviors and how to report those behaviors… In order for an adequate culture shift to take place around this issue, all employees need to feel confident that they are adequately protected by their employers’ policies and procedures when it comes to safeguarding against sexual harassment.

Immediate action is in order

The law prescribes that affected employees must undergo expanded training by January 1, 2020. If the requisite training occurs in 2019 it need not be repeated before this deadline. The training mandates at least two hours of sexual harassment prevention training for all supervisory employees and at a minimum, one hour of sexual harassment training to employees in non-supervisory roles. Once an employee is appointed to his or her position, training must be conducted within six months and then every two years. 

Bornstein Law has always advised clients not to kick the can down the road, and this is no exception. The rental housing industry should not get a false sense of comfort because the law goes into effect far-flung in the future. Given the pervasiveness of the problem and the consequences of sexual harassment, we urge that a zero-tolerance policy is set today and is not viewed as a perfunctory compliance issue later on. 

Some time has elapsed since Proposition 64 has passed. Since the voters have legalized the recreational use of cannabis and its cultivation (with several caveats), there were a lot of irons to be wrinkled out in City Halls and in the courts. We are encouraged that in this circuitous process, the law has acknowledged the rights of law-abiding landlords who are not complicit in their tenants’ abuse of the people’s choice. First, some backdrop.

It should be clear to rental property owners by now that they can put the kibosh on cannabis in their units, just as they can ban smoking. This prohibition is best spelled out in an ironclad lease and if there is no cannabis clause in your lease, it is likely time to revisit a stale document.

Of course, we are aware that in this democracy, there is a contingency of landlords who voted for Proposition 64. To the group of landlords who condone cannabis, we warned that liability can result from exposing neighboring tenants to harmful chemicals and that the owner is an easy target for claims that he or she violated California’s implied warranty of habitability by letting the residual effects of cannabis spill into the units of other residents who do not enjoy the leafy substance.

There is another category of studious landlords who have had the wool pulled over their eyes by tenants intent on concealing their behavior.

While Bornstein Law has always maintained that owners should be the eyes and ears of their rental units, sometimes tenants go through great lengths to hide activities going on behind closed doors, and in a cat and mouse game, landlords can be misled and obstructed. We have even seen tenants in bedbug-infested units deny entry to exterminators to obscure what is going on in the dwelling to any prying eyes.

As it was originally drafted, AB 2164 gave cities the prerogative to immediately penalize individuals accused of violating local cannabis laws without due process or even a chance to remedy the violation. Translation: the bill would have left innocent rental property owners vulnerable to stiff penalties, with no ability to correct the problem and without any means to appeal.

Thanks to an amendment by Assemblyman Ken Cooley, D-Rancho Cordova, landlords will be afforded the chance to fix cannabis-related violations without being summarily punished for the actions of rogue tenants.

Under the revisions – also brokered by the California Apartment Association – three elements must apply.

  • A tenant is in possession of the unit where the violation occurred.
  • The owner had no actual knowledge that the tenant was cultivating cannabis.
  • And the owner has a lease agreement that prohibits the illegal activity.

The legislative intent was to deal with transient cannabis growers who violate local laws but effectively avoid fines by leaving and setting up shop elsewhere, essentially curing the violation before fines can be levied. Assemblyman Cooley explains.

“AB 2164 allows but does not require, local governments to amend their ordinances to remove the time period to correct a violation in cases of cannabis cultivation only… This removes at least one monetary incentive for illicit grows to continually move while also giving local governments the ability to bring meaningful penalties on willfully illegal growers.”

AB 2164 gives municipalities the option of removing the time to correct problems before fines are levied only apply to cannabis-related offenses, though local governments would still have to allow individuals to get back in good graces and avoid fines by swiftly fixing problems surrounding building, plumbing, electrical, or other similar structural or zoning issues when these gaffes do not pose an immediate danger.

Keeping tabs on your property may avoid units becoming a source of stench, a breeding ground for mold and a guzzler of utility costs, along with many other problems associated with a growing operation. Yet even the most observant landlords can be bamboozled. We applaud the amendment because these unsuspecting landlords can take action without a city being the judge, jury, and executioner.

We would be remiss not to warn owners that over policing their units may fly in the face of a tenant’s right to “quiet enjoyment” of the premises. In our recent article on handling criminal activity in rental units, we reminded landlords that he or she can only enter a unit with a permissible purpose, and then only with proper notice.

Are your leases in compliance in the era of legalized cannabis and up-to-date with the breakneck changes of other laws, or has it lagged behind the times? When in doubt, contact our office.

Starting in September 2019, tenants facing evictions will be afforded more time to answer eviction proceedings under a new bill recently signed into law. AB 2343 will give tenants three “court days” to fork over overdue rent or comply with other terms of the lease, and a full five court days to respond to an unlawful detainer lawsuit. The law amends Sections 1161 and 1167 of the California Code of Civil Procedure.

Under the current law surrounding unlawful detainer actions:

  • A tenant has three calendar days following receipt of the landlord’s notice to cure a lease violation (e.g. pay rent or any other breach of lease) or vacate the leased premises.
  • A tenant has five calendar days following service of summons to respond to an eviction lawsuit (i.e., an unlawful detainer action) filed by the landlord.

The newly minted law extends a tenant’s 3-day and 5-day response periods in an unlawful detainer action to exclude Saturdays, Sundays, and judicially observed holidays.

As one of the most prolific authors of tenant rights bills, it’s with little surprise that Assemblymember David Chiu, D-San Francisco was the chief architect of this measure.

“Legal aid attorneys across California have reported incidents in which tenants are presented with a notice on a Friday before a holiday weekend and are essentially barred from correcting a breach of a lease or responding to a court summons because courthouses are closed or they cannot secure legal representation over a long weekend. AB 2343 will restore some fairness to the process and give tenants a chance to stay in their homes.”

Renter rights advocacy group Tenants Together claim that there are a staggering amount of default judgments entered against tenants when they fail to respond within five calendar days to their eviction lawsuit or have not filled out the forms properly and that AB 2343 will restore fairness to the process. 

Although landlords will have to wait longer under the new law, it is not eternity. The original proposal was to allow tenants 10 days to pay back rent and have 14 days to respond to an unlawful detainer action, so it’s not as bad as it could have been.

Make no mistake, political rhetoric often sides squarely on the side of tenants, and this law is just one win in the column of an energized tenant rights movement that must be met with equally aggressive representation from landlord attorneys who have been advocating for owner rights for over 23 years.

 

When Senator Bill Dodd was forced to evacuate his NAPA home around midnight on the first night of the October fires, he couldn’t open his heavy wooden garage doors to use as an escape route. With widespread power outages, the garage door motor wasn’t working, but thankfully, a good neighbor came to his aide. One trapped neighbor encountering the same problem was actually forced to drive through his garage door.

“This isn’t a problem most people have thought of,” the Senator says in a news release, but he brought it to the forefront by introducing SB 969, co-authored by Assemblywoman Cecilia Aguiar-Curry, D-Winters and supported by the Consumer Federation of California.

Under the new law, landlords and other property owners will no longer be able to install automatic garage doors unless they have a battery backup function designed to operate during an electoral outage. The bill’s requirements will be enforceable next summer.

For Dodd, the fire season exposed several vulnerabilities and underscored the need to be proactive in adopting policies that make communities safer in the wake of a disaster. Ensuring battery backups for garage doors is “a small step that can literally save lives,” he goes onto say.

At least five of the 40 people who died in the North Bay during the fires did not or could manually open their garages, The Press Democrat reported in December. Seniors and those with heavy wooden doors are especially at risk.

What the law means for rental property owners

Landlords are not required to proactively install new automatic garage doors, but any replacement door installed on or after July 1, 2019, must have the battery backup feature. Owners face a $1,000 civil penalty for failure to comply.

We applaud the bill and have always maintained that owners should develop an emergency preparedness plan before a disaster strikes, to protect, life, limb, and property.

Some habits are annoying to this author, but it might be okay with you, and you might even be the perpetrator of the peeving behavior. Likewise, you might consider me to be a little bothersome at times but in a perfect world, we all come together, celebrate our differences, and get along. Yet we all know that not all human interactions are so harmonious, especially when living in close quarters.

Barring egregious acts or illegal behavior, what constitutes a nuisance has always been somewhat ambiguous, and in an unlawful detainer action (i.e. “eviction”), it will ultimately be up to a judge or jury to decide if the underlying behavior warrants the removal of the tenant.

In a recent lawsuit, however, the city of Oakland and the Oakland Housing Authority Police Department are accused of overstepping their police powers by using a loitering ordinance to maneuver residents and guests, telling them “they can’t be where they are, they have to leave, and they can’t associate with friends and family in public spaces,” in the words of Jude Pond with the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, a group that joined the ACLU in the litigation.

Some residents purportedly fear to gather outside their own yards or risk being stopped, handcuffed, or fined hundreds of dollars for acts as abominable as sitting in a lawn chair.

We are hard-pressed to offer much commentary on the 161-page lawsuit, except to say it brings up some interesting constitutional questions as to whether the police should be arbiters of who should stay and who should be dispersed when congregating around a rental unit. The lawsuit alleges that under the guise of enforcing the ordinance, police have “broken up family barbecues, and have dispersed groups of friends simply hanging out and getting fresh air,” even questioning a resident as bereaved friends and relatives were gathering for a funeral, in violation of due process and freedom from unreasonable searches and seizures.

The loitering ordinance uses vague phrases that criminalize anyone who “loiters, prowls, wanders, or is present without lawful business” and expresses disfavor for anyone who delays, lingers, or idles about Housing Authority property without a lawful purpose.

It’s submitted that the ordinance applies excessively to black men and is even likened to “loitering ordinances that were used to control black residents of the South in the Jim Crow era,” and that these kinds of laws “have been widely criticized and struck down as enabling unjustified infringement on people’s—usually people of color’s—constitutional rights,” according to one plaintiff’s attorney.

In fairness, OHA says it’s their lawn, and the buck stops with them.

“Property owned by the Oakland Housing Authority is private property not open to the general public. Enforcement of this code is utilized as a means to minimize the risk of impairing the peaceful enjoyment as well as the health and safety of OHA residents and their guests from others who have no lawful business to be present on the property. Put simply, OHA residents and their guests deserve the same protection from trespassers as any other families in Oakland living in privately owned property.”

The claim that law enforcement is using Oakland’s anti-loitering law to criminalize and harass tenants is a story we will continue to follow, but the headline provides a good outlet to discuss the laws surrounding nuisances, with an emphasis on Oakland.

“I’ll know it when I see it?”

There are several layers of law to get to the heart of what a nuisance is.

California state law defines a nuisance as an activity that injures health, including selling illegal drugs, indecent behavior or behavior offending the senses. Behavior that obstructs the “free use” of property and interferes with the “comfortable enjoyment of life or property” is also a nuisance.

Under Oakland’s Just Cause for Eviction Ordinance, known in some quarters as “Measure EE,” owners are allowed to evict a tenant only for “just cause,” and nuisance falls into this category when the tenant continues to disturb other tenants and neighbors after written notice to stop. We hasten to say that although in most instances, tenants are afforded the opportunity to cease the underlying behavior to get back in good graces, illegal activities are not curable and with the guidance of an attorney, an eviction proceeding can be accelerated.

A public nuisance, on the other hand, is one that impacts a community, neighborhood, or “considerable number” of people. Anything deemed not a public nuisance is deemed to be a private nuisance.

Closely related is of the Oakland Municipal Code § 9.08.250, which applies only to Housing Authority properties and is the ordinance currently being challenged.

As we can see, this is not a simple matter of what I like and what annoys you – the law is more muddled, making it imperative to consult with a landlord attorney when friction occurs in a rental unit. 

 

San Francisco and Oakland are in a rather exclusive club by allowing landlords to exempt buildings from rent control because of “substantial rehabilitation,” though Oakland’s rule is headed to the graveyard and we predict that many dilapidated buildings will share its fate as landlords let properties atrophy in the absence of any financial incentive.

The rule – which has been around since Oakland first instituted rent control in the 1980’s – permits landlords to ask the rent board to permanently strip away rent control on his or her units when they spend more than 50 percent of the cost of building an equivalent number of new units on fixing up existing units. The spirit of the exemption was to incentivize investors to renovate rundown buildings, taking uninhabitable dwellings and restoring them to living condition.

Some Oakland lawmakers predictably coined this a “loophole” that had the potential for abuse and have put the exemption on ice with moratoriums. It was unclear if City Council would continue to kick the can down the road again or provide a sense of finality to the rule by voting it up or down on the eve of an October 21 expiration date. Last Tuesday, lawmakers extended the moratorium until March, but agreed in principle that the substantial rehabilitation exemption should be nixed and so they are just buying time for staffers to come up with an ordinance that puts the final nails in the coffin. More backdrop here.

We were quoted in this article saying that if rehabbing a building cannot lead to a rent control exemption, it will result in a “class of buildings that continue to exist in a downward spiral of dilapidation” which is to the detriment to the community. In the eventuality the exemption is nixed, we believe that the city’s housing stock will deteriorate as landlords put away their checkbooks and refuse to make sorely needed repairs because they can’t realize a return on investment.

If the substantial rehabilitation exemption was to be left intact, some people would assuredly lose, and what we mean by that is that some tenants will be priced out of rental units they can’t afford. Yet there would be beneficiaries – people who want to move to Oakland and can afford market rate rent, and so it’s not a simple subtraction of one tenant.

As proud East Bay residents, we are elated to witness Oakland’s growth, but Oakland’s stance towards more stringent rent control moves the needle of progress in the wrong direction.

No matter the political winds in Oakland, rental property owners can rely on our advocacy for owner rights.

Keep your recycling bin close by, as Proposition 10 season is upon us with pounds of fliers and pamphlets sure to litter your mailbox and front door between now and election day.

Bornstein Law has strongly opposed the measure and we are encouraged that a growing number of cooler heads are prevailing in the debate against the repeal of Costa Hawkins. Aside from landlord groups and other predictable foes against Proposition 10, sensible progressives such as the California NAACP leader and other odd bedfellows have staked their case against expanded rent control because they correctly point out that it will only aggravate the housing deficit.

A growing chorus of editorial boards has joined the opposition to Proposition 10, including our own San Francisco Chronicle in their indictment of the ill-advised proposal. 

“… More rent control — and more local government control — will probably further suppress the supply of housing and deepen the crisis for the state. More housing is the way out of the housing shortage. Proposition 10 is not.”

The passage of Proposition 10 is more than a whispering possibility

We’d like to think that the glass is half full and that the many cogent arguments against Proposition 10, coupled with the millions of dollars infused into the machinery to defeat it will prevail. Yet the lawyers in us tell us that we must prepare for the worst. While we can’t predict the future, we can do the next best thing by advising rental property owners on courses of action they can contemplate in the eventuality that voters pass the biggest tenants’ rights bill in decades. First, a little backdrop. 

We noted in an earlier article that after nearly a quarter of a century of trying to repeal Costa-Hawkins to no avail, pro-tenant groups may actually succeed in a new cosmosphere. With cities becoming magnets for high-paying jobs and a corresponding rise in rents and quarrels over gentrification, coupled with a burgeoning homelessness epidemic, the political winds have shifted in the favor of militant tenant advocates who pose a more formidable threat to landlords than the failed campaign of yesteryears.

Cities are grappling with the eventuality of Costa Hawkins repeal and none more tortuously than the City by the Bay.

California cities are the arbiters of what happens if Costa Hawkins is repealed

If Proposition 10 is passed, it will not automatically trigger expanded rent control, but it would remove barriers to a city’s desire to impose more stringent rent stabilization policies. In cities that already have ensconced tenant protections, this is shaping up to be a messy exercise in democracy, as municipalities attempt to strike a delicate balancing act between satisfying tenant advocates who are salivating at the prospect of increased rent control and engaged, tax-paying landlords who may exit the rental housing business or let their properties atrophy if they cannot make a buck.

After some soul searching, Berkeley City Council’s answer was to kick the can down the road to November, when proposed amendments to the rent ordinance will be decided by the voters. As the proverbial capital of tenant’s rights, San Francisco’s debate on how to modify their rent ordinance is more cantankerous.

Under Costa Hawkins, San Francisco cannot move its rent-control date forward from 1979. With tens of thousands of units built since then, the passage of Proposition 10 would have consequences of epic proportions. It is far from resolved, but Supervisor Jane Kim offers a premonition. 

“My guess is that this Board would pass legislation that’s balanced… The fear that we’d go crazy and establish these laws saying tenants could stay in their units no matter what they do … This Board wouldn’t do that.”

At Bornstein Law, we don’t want to get mired into the wranglings of City Council – inquisitive minds can get that here – but suffice it to say that there is no reason to believe that if Proposition 10 is passed, it will not lead to expanded rent control in San Francisco and expose owners now exempt from the rent ordinance to a new set of rules that were previously foreign to them. This begs the question of what San Francisco investment property owners should do in anticipation of Costa Hawkins repeal, or for that matter, landlords throughout California. 

With Costa Hawkins repeal efforts gaining traction, owners currently exempted from rent control should take a hard look at their options

Owners of single family homes, condos, and newly constructed rental properties should have a “heart to heart” discussion about whether current rents are sustainable and if not, consider raising rents to future-proof their rental business before expanded rent control is ushered in.

With the possibility of vacancy decontrol – a rule which would bar a landlord from raising the rent on a unit once a tenant moves out – forward-thinking landlords may also consider terminating the tenancy, a difficult subject but one worth having. Of course, raising rents and transitioning tenants out of rental units are not trivial matters and are best journeyed with a real estate attorney who specializes in the nuances of landlord-tenant law. 

There are some rental property owners who prefer to ride out the storm and not upset the applecart, whatever metaphor you like, perhaps wanting to avoid conflict. In this LA Times article, the author suggests a novel exemption to Proposition 10 by making landlords live alongside their tenants, because “no one is evil enough to live among people, look them in the eye, and raise their rent by $500 a month.

No matter how you are leaning, it requires careful deliberation best journeyed with the landlord attorneys at Bornstein Law – for informed advice, get in touch.

Renters make up nearly two-thirds of all San Francisco households, and they rallied to make history on June 5th by passing Proposition F, a measure guaranteeing legal help to any tenant facing eviction, regardless of income.

The passage of the ballot measure is likely to advance a “right to counsel” movement for non-criminal cases. This is a debate being reframed in a handful of cities, but San Francisco is leading the way as one of the biggest laboratories of tenant protections.

Although New York City was the pioneer in ushering in the first law entitling evictees to access some form of free legal assistance, a means test in the Big Apple was applied. San Francisco’s universal representation for tenants, on the other hand, makes no distinction between tenants who have the resources to hire an attorney, and those who have genuine hardship. 

Dean Preston is the executive director of the statewide advocacy group Tenants Together and was the chief architect of Proposition F. Now that his cause has been codified into law, he is pushing for resources to see it through to fruition.

This has shaped out to be an only-in-San Francisco moment. Even as Los Angeles has taken the first steps to give renters facing eviction free legal assistance, there is a sentiment there that counsel should not be afforded to individuals who do not need a lawyer on the city’s dime and that renters being evicted for missing payments should not qualify for the giveaway. Tenant advocates in dozens of other cities are taking notice of San Francisco’s experiment, with pilot projects for right-to-counsel sprouting up in Washington, D.C., Denver, and other epicenters.

Where San Francisco’s unprecedented law stands now

Implementing the ambitious ballot measure now falls into the lap of the Mayor’s Office of Housing and Community Development, now in the early planning stages and identifying service providers. There are a lot of wrinkles to be ironed out. 

In an earlier article on the eve of election day, we noted that while London Breed is a lifelong renter, she was considered the most moderate candidate on housing and gave only tepid approval of Proposition F. To her credit, candidate Breed favored income limits instead of blanket rights to free counsel.

Now that she has been minted mayor, it’s not entirely clear how London Breed’s office will choose to implement the mandate. MOHCD has until July of 2019 to come up with an ironclad plan, and how it will be funded is up in the air. The city controller estimates it will cost $4.2 million to $5.6 million a year to fulfill the will of the voters.

A counter-narrative to landlord-tenant disputes

Earlier, we noted that tenant attorneys will use many gambits to delay an unlawful detainer action, many of the claims frivolous. While it would ordinarily take several weeks to effectuate an eviction, San Francisco landlords can now anticipate further clever smoke and mirrors concocted by tenant attorneys. This makes it imperative to seek landlord attorneys who can level the playing field. 

 

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

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

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

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

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

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

~ Assemblyman David Chiu

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

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

Not a blank check

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

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

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

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

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

Tenants in a position to bow out of the lease

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

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

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

 

Landlords are urged to seek legal advice before raising rents north of 10 percent after Governor Brown has once again extended price gouging protections.

California law generally prohibits charging a price for many consumer goods and services, including rental housing, that exceeds by more than 10 percent, the price of the item before a state or local declaration of emergency. The price gouging prohibitions make no distinction between existing tenants and a unit turnover. Nor does it exempt certain types of rental units such as single-family homes – the law applies to all rental units with an initial term of one year or less, regardless of size, location, or age. 

California’s Attorney General and District Attorneys throughout the state have been very vocal in admonishing service providers to keep prices below pre-disaster levels or risk stiff penalties, which can result in one-year imprisonment and/or a fine of up to $10,000, but it doesn’t end there. Violators are also subject to civil enforcement actions which include civil penalties of up to $5,000 per violation, injunctive relief, and mandatory restitution.

The underlying rationale behind the price gouging prohibition, of course, is that when disaster strikes, it is time for the community to come together and help each other impacted by the tragedy, not for opportunistic merchants and housing providers to take advantage of the most vulnerable.

Yet, prosecutors throughout the state are sorting through a stream of complaints by struggling or displaced residents who feel they have been exploited in a time of need. One guest of a Redding motel had to leave when the prices soared, and Shasta District Attorney Stephanie Bridgett weighs in.

A regional task force was formed, in fact, to curb illegal spikes in the price of essential goods and services, netting in several landlords, including a Sonoma County landlord who raised monthly rents to the tune of 40 percent – four times what’s allowed under the law designed to protect tenants after a disaster.

Landlords outside of ravaged areas should not get a false sense of bravado.

Although the law itself is somewhat ambiguous as to whether a particular area has increased consumer demand as a result of the declared emergency, the Attorney General’s interpretation matters. 

The state’s top cop says the price gouging law applies anywhere in the state, irrespective of county border, and we hasten to say that local ordinance may enact their own price gouging rules and penalties.

Yet another issue remains, and that this is how to calculate the 10 percent cap and determine the base amount. Given such a murky area of law, it’s best to reach out to the landlord attorneys at Bornstein Law whenever a rent increase is contemplated. 

Click on the television and you will likely be greeted with insurance ads. Geico has the most marketing muscle, but you’ll also be graced with the presence of Stephanie Courtney, better known by her TV persona Flo, from Progressive insurance ads.

This author’s personal favorite is “Mr. Mayhem,” the face of Allstate – Dean Winters – who always gets a bad break. Whether experiencing an explosion when he ignites a grill, staying in a creepy roadside motel because he ran out of gas, being forced to change a tire in a downpour and other vexing events, catastrophe is always looming for Mr. Mayhem, who has superhuman resilience in not only surviving these calamitous events, but offering cool commentary.

As a sidebar, the lawyers in us note there is some sentiment the term “mayhem” is misplaced because it has a specific legal definition of the criminal act of maliciously disabling or disfiguring another person. Nonetheless, rental property owners should anticipate unique risks not necessarily covered by insurance, and unless they take a hard look at their policies, they can share this character’s fate. 

Writing a home, auto policy and the like comes with its own complications but is fairly perfunctory. Some insurance policies that are not always so always top of mind. In a two-part series, we touch on them. 

Wrongful eviction coverage

Many studious landlords that do right by their tenants cannot fathom being sued, but assuredly, it happens at an alarming rate. Our hard-won experience has shown us that in 99% of the cases, the litigation is not initiated because of any shocking abuse that makes the headlines, but by mundane disputes or a naivety of rent control laws that can quickly balloon out of control.  In this video, Daniel Bornstein explains the importance of going through your insurance policy with a fine tooth comb to ensure there is a rider for wrongful evictions.

If the displaced tenant feels aggrieved, they can allege all manner of claims we outlined here and especially so when aided by a firecracker tenant attorney.

San Francisco rental property owners who file an unlawful detainer action, in particular, should be put on notice that they will be greeted by opposing counsel since the City has guaranteed legal representation to all evictees. Our main takeaway in a previous article was that the so-called “No Eviction Without Representation Act” will be a field day for tenant right attorneys who will erect barriers to the unlawful detainer with various gambits that are beyond the sophistication of the resident had he or she fended for themselves.

What’s at stake

“Rent differential damages” are painful enough, but enter punitive or treble damages, and rental housing providers are well-advised to pay for wrongful eviction coverage.

A standard liability insurance policy insulates a property owner from lawsuits and liability from bodily injury and property damage, but typically exclude ‘personal injury’ coverage that protects against intangible or economic harm to a claimant that does not arise from bodily harm. Being sued for wrongfully evicting a tenant, then, falls into this category.

One of the largest economic consequences, of course, is attorneys fees to defend a wrongful eviction lawsuit, irrespective of the merits of the litigation and of course, in San Francisco, there was no concerted effort to provide free legal counsel in order to protect good landlords from bad tenants.

Coverage for short-term rentals

There is no shortage of horror stories among hosts who came home to find tens of thousands of dollars worth of damages or learn that a guest has been injured. Airbnb’s Host Protection Insurance is a great perk, but the coverage is far from comprehensive.  If property owners are engaging in short-term rental agreements, it’s vital to keep a finger on where your protection begins and ends. 

Insurance companies have been slow to adapt to the modern day iteration of the temporary flop and its unique risks, but as carrier appetite remains low for these hospitality arrangments, some emerging programs are filling the void. When in doubt, please contact our office for a check up on your policy to cauterize risk.

We will pick up on this topic in a future post – to be alerted to the latest news and insights, subscribe to our timely feed or follow us on Facebook.

 

In an ongoing series, we profile the people who are disrupting the rental housing industry, shaping the housing debate in California, or just interesting people that give a fresh perspective.

Dan Kalb

Oakland has become the latest bastion of tenant protections, and Dan Kalb can take the latest credit as the chief architect behind a measure to extend “just cause” eviction protections to tenants living in owner-occupied duplexes and triplexes throughout the city. To Kalb, it’s about fairness. “People should have the right to stay where they want to stay,” he was quoted as saying in this San Francisco article. “If they’re already living somewhere, they should have the right to continue to live there as long as they’re not breaking any of the rules. The protections and the rules that exist for some renters — most renters in the city — should also exist for renters who live in these smaller buildings.” We took issue and were quoted in the same piece. 

Alexander Chatzieleftheriou

Blueground wants to make it easier to provide smart and hassle-free housing for business travelers and transient individuals. The housing startup landed in San Francisco with Alexander Chatzieleftheriou at the helm and he stands to disrupt corporate housing as we know it.

Hillary Ronen

Housing issues play a strong role in District 9 and for Supervisor Hillary Ronen, a concern has been displacement in the Mission, particularly among the Latino community, and she is intent on intervening. Another vexing problem in her district is the homeless crisis and after about 18 months on the job, the Supervisor says she’s transitioning from crisis management to trying to address the root cause. Read the full interview here.

Michael Weinstein

After nearly a quarter of a century of trying, tenant activists in California could be on the cusp of repealing the Costa-Hawkins Rental Housing Act, thanks to Michael Weinstein. The president of the AIDS Healthcare Foundation led the charge for expanded rent control statewide and put millions of dollars behind it. His cause has now reached critical mass.

Although we are heavy consumers of housing news curated around the Bay Area, we sometimes get interjected into the stories we read. Such was the case with this San Francisco Chronicle article that reported Oakland City Council’s recent vote to place a measure on the November ballot that would peel back protections for small property owners who are exempted from just cause eviction rules.

While most Oakland buildings that obtained a certificate of occupancy prior to December 31, 1995 are subject to Oakland’s Just Cause for Eviction Ordinance, a glaring exception is made for duplexes and triplexes where the landlord lives in a unit. Yet one of the last bastions of small rental property owner rights is being assailed as part of Oakland’s continued trek down a slippery slope toward more cumbersome rent control measures.

Before we chime in, take a look at the storyline leading up to the city’s pushing of the so-called “duplex loophole” to the November ballot.

Redefining property ownership

At the risk of semantics, it’s interesting that the conversation begins with the term “loophole,” which seems to be a code word for anything that protects the rights of property owners. Like pass-throughs and other laws that might be viewed as favorable to landlords, the first inclination is to call any measure that benefits owners a loophole. This argument ignores one of the fundamental tenets of ownership – the owner can live in the property and decide what goes on there. 

In an earlier article, we quoted Wayne Roland, who said “it takes two to tango.” The President of the East Bay Rental Housing Association notes that not every initiative should set up rules that favor tenants. “You have to be concerned about the people who are providing housing, as well,” he states.

More often than not, the political rhetoric falls squarely on the side of tenant rights and the interests of landlords often take a back seat, if glazed over at all. Yet, we should give credit where it is due and appreciate Otis R. Taylor Jr’s willingness to hear us out in the Chronicle’s recent article and give us the opportunity to be the voice of landlords in a fair and balanced discussion.

Daniel attempted to make the distinction between deep-pocketed real estate investment companies and small owners who rely on rental income for their subsistence and predicted that if the owners who live in their duplexes and triplexes are hamstrung with additional regulations, it will both reduce the quality of life for residents and negatively impact the property value in a lose-lose situation. 

So what it does is it becomes a disincentive to improve housing stock… While large real estate investment companies may have the ability to handle the complexity of the ordinance, small owners are confronted with a tremendous new regulatory regime that they simply don’t have the money nor experience to handle.

The debate should be settled.

Although most economists generally agree that rent control does more harm than good and there are arguments that expanded rent control will only aggravate the affordable housing shortage in the Bay Area, we need not be in academia or an ivory tower to see it.

With “boots on the ground,” Bornstein Law has already encountered nervous rental property owners who are contemplating raising the rents in anticipation of measures coming down the pike, making substantial repairs to avail themselves of just cause eviction exemptions before they are gone, and otherwise taking advantage of current laws before they are axed.

We can confirm the argument then, that if the tenants’ right agenda comes to fruition, it will be self-defeating. We are strong advocates for housing stability, but there is a right way and a wrong way to accomplish this.

While there is a large chorus of voices for tenants’ rights, the rights of rental property owners seem to be drowned out, but Bornstein Law fills the void. Contact our office for proper counsel. 

Tuesday, July 24th is a consequential day for property owners in both Oakland and Berkeley. With November marching closer, these two cities will be convening special council meetings to decide what ballot measures will be headed to the voters in the November 2018 election, and the stakes are particularly high for East Bay landlords who are already saddled with some of the Bay Area’s most stringent and complex rent control rules.

Among some ominous proposals, we’ve picked up the most chatter about Oakland’s ill-conceived idea to peel back a 2002 ballot measure passed into law which exempts small landlords from Oakland’s “just cause” eviction protections, a subject we chimed in on here. For still more context, watch this video – the initial July 17th hearing has obviously passed, but the threat to owner-occupied duplexes and triplexes are still a concern and even more so now.

What you can do

We urge our fraternity not to be apathetic and kick the can down the road by waiting for the November election – please weigh in on critical measures coming before Oakland and Berkeley lawmakers and ultimately before the voters at the ballot box. The Oakland Berkeley Association of Realtors urges you to show up, call or write your elected officials.

We’ve noted that all politics are local, but some are more local than others. Although the statewide repeal of the Costa Hawkins Rental Housing Act will make for one of the most contentious debates about housing in California in decades, we should not let this main event eclipse local ordinances that can have more impact on the day-to-day activities of rental property owners. Notably and at hand in Tuesday’s agenda, Berkeley Item 64 is designed to put a plan in place for the eventuality that Costa Hawkins is repealed.

Our friends at OBAR have the best handle on all of the initiatives being discussed and articulate arguments for and against them more eloquently than us, so we include their analysis below.

**City of Oakland**

Item 16 Repeal of Duplex/Triplex Just- Cause Exemption

OPPOSE

City Council will move this to the November election unless you act.
The amendment would force many homeowners in duplexes/triplexes to live with their tenants for life.

We would like to thank all of the REALTORS who showed up to city council on 7/17! Unfortunately, Council may still decide to put this on for the November election. However, we still may have a chance in this.

Other Major Concerns:

– Amendments to the ordinance will ensure that homeowners do not build Accessory Dwelling Units, secondary units or otherwise add more rental housing on their properties.
– Tenants are already protected. Laws and mechanisms currently in place ensure that rents cannot be raised in newly owner-occupied duplexes/triplexes for at least a year regardless of whether a new tenant is moved into a unit.
– Amending the just-cause ordinance will irreparably harm homeowners, their families and the tenants that currently live in the approximately 4,000 or more owner-occupied duplexes and triplexes by hand-cuffing homeowners from removing tenants that pose a health or safety risk to the homeowner or the other tenants living on the property.
– Adding more risk for homeowners that live with their tenants will ensure that homeowners are more stringent when deciding who to rent to when a unit becomes available or may force a decision not to rent the unit at all. The long-term effects of this will be gentrification as has been seen in San Francisco and Berkeley. This law works against its intended purpose.

Please show up at City Council meeting to tell your story or email/call your Councilmembers and the Mayor and oppose this measure by clicking HERE

Item 11: Transfer Tax

OPPOSE

This proposal from Dan Kalb will make the transfer tax on homes the highest in the State of California. The tax is a money grab designed to alleviate the City’s inability to balance its own budget.

There has been no independent economic analysis done of this tax. This could prove hazardous because of the volatile nature of the market. The City of Oakland had to lay off half of it’s workforce the last time the market took a tumble. For that reason, We believe that it is of utmost importance that a thorough economic analysis is done regarding the possible effects such a tax would have on Oakland’s economy before moving forward on such a proposal. We are informed and believe that that is what SF did before moving on their graduated RETT. We would also like to point out that SF’s RETT graduates up at 5 million dollars and that RETT for properties below 5 million is half of our current rate (0.75% as opposed to 1.5%).

Please show up at City Council meeting to tell your story or email/call your Councilmembers and the Mayor and oppose this measure by clicking HERE

Item S9.6: Vacant Land Property Tax

OPPOSE

Introduced by Councilmember Kaplan, this ballot measure proposes to tax vacant properties $6000 per parcel to fund homeless programs and illegal dumping remediation. This measure has not been properly vetted or analyzed. There are major concerns about equity in enforcement, fairness in the levy, and the financial projections for the stated purpose. Poor property owners that do not have money to develop their property will be forced to sell to corporations.

Voters are being misled. This tax will not provide a sustained revenue source for homelessness. If the tax works to force development, there will be no new revenues for homelessness and blight. If the real purpose of this measure is to force property owners to put their land to use, then incentives should be offered in lieu of this punitive scheme. The tax will unfairly target homeowners that are leaving properties vacant for family members or caregivers to occupy at a future date.

Please show up at City Council meeting to tell your story or email/call your Councilmembers and the Mayor by clicking HERE


**City of Berkeley**

Item 63: Transfer Tax

OPPOSE

This Tax will NOT fund Homelessness Services. You are being misled. This tax was proposed by the Mayor, and sold to the public for months, as a special tax. That would mean it would be dedicated to homelessness services. The city has since quietly changed, without discussion or explanation, the language to make it a general fund tax. That means the money can be used for anything, and we know that the city does not know how to spend your hard-earned tax dollars.

The Association stands in complete opposition to this tax. Raising the tax by one percent for properties sold over $1 million will effectively make Berkeley’s transfer tax the highest in the state of California. The median and average price of a home in Berkeley is approximately $1.2 million. The tax would affect every residential transaction in the city and push the overall cost of housing even higher than it already is.

Because of inflation and the appreciation levels of property in the city of Berkeley, many long term property owners in Berkeley may face significant tax implications if they decide to transfer title to their grandchildren or other third parties. Generational wealth can be sharply impacted if heirs of homeowners are faced with large tax bills that they cannot pay. The city of Berkeley has been recording large numbers of transfer tax liens on properties that used to belong to families with long standing ties to South Berkeley. Those people have since been displaced or forced to sell their property under duress because of the increasingly high burden of owning property in Berkeley.

We believe that it is of utmost importance that a thorough economic analysis is done regarding the possible effects such a tax would have on Berkeley’s economy before moving forward on such a proposal. We are informed and believe that that is what SF did before moving on their graduated RETT. We would also like to point out that SF’s RETT graduates up at 5 million dollars and that RETT for properties below 5 million is half of our current rate (0.75% as opposed to 1.5%).

Please show up at City Council meeting to tell your story or email/call your Councilmembers and the Mayor by clicking HERE

Item 64: Amending Rent Ordinance

OPPOSE in Part

In the event that Costa Hawkins is repealed, this measure will cap rents on rent controlled units at their current rate and impose rent control on new construction after a timeframe between 12 and 15 years. It will also guarantee exemptions for ADUs from Rent Control and Just-Cause.
Though some exemptions have been written into the measure for ADUs, which we support, placing the other amendments on the ballot at this time may prove to be a waste of hundreds of thousands of dollars paid for by Berkeley Resident’s tax dollars. If the effort to repeal Costa-Hawkins on the state level fails, a significant amount of money will have been spent for no reason.

Please show up at City Council meeting to tell your story or email/call your Councilmembers and the Mayor by clicking HERE

THE ONLY WAY TO STOP THIS IS IF YOU ACT

What: Special City Council Meetings in Oakland and Berkeley.

When and Where:

Oakland
Tuesday, July 24th @ 3:00 P.M.
City Council Chamber, 3rd floor at 1 Frank H. Ogawa Plaza Oakland

Berkeley
Tuesday, July 24th @ 6:00 P.M.
Council Chambers, 2134 Martin Luther King Jr. Way, Berkeley

If you can’t make it to either City Council meeting, please email or call your elected officials. Click HERE

Please email OBAR’s Government Affairs Director with questions or concerns:

Kiran Shenoy
kiran@theobaor.org

 

There have been spirited discussions on rent control throughout the Bay Area, but we can’t seem to recall a debate so cantankerous as the one leading up to Richmond’s approval of its rent control and just-cause-for-eviction ordinance.

In asserting their voice, tenant advocates mounted a show of force with a sea of yellow shirts, toting signs and raring to testify. Decrying skyrocketing rents and increased gentrification, their cause was ultimately successful when, in 2016, the city became the first Bay Area city to approve rent control in 30 years.

It’s not the most entertaining of videos, but Richmond City Manager Bill Lindsay provides a good lay of the land in this community workshop at a time when the city was in the implementation stage of the ordinance.

Although tenant advocacy groups and labor unions architected the law in large part, landlords were also well represented in the dialog and councilmembers sympathetic to owners weaved in protections for this group. With that backdrop, let’s get into the nooks and crannies of the law.

The Richmond Fair Rent, Just Cause for Eviction, and Homeowner Protection Ordinance has the dual purpose of capping the annual amount a landlord can increase the rent and protecting tenants from eviction without a just cause.

The ordinance applies to buildings with two or more residential units that have a certificate of occupancy prior to February 1, 1995. Put differently, Richmond landlords who have multiple units in a building that was built before 1995 are likely subject to Richmond Rent Control.

Single-family homes and condominiums are exempted from the ordinance, at least for the time being. In an earlier article, we noted that efforts to repeal the Costa Hawkins Act are gaining steam and after the Democratic Party has backed the ballot measure, its repeal is more than a whispering possibility. Other exceptions may apply and when in doubt, contact our office.

Rent Increases

The Richmond Rent Board is the body that establishes permissible rent increases in units covered by rent control and is pegged to the annual percent change in the Consumer Price Index for all Bay Area consumers. Bornstein Law has long maintained that the CPI is not a good barometer because this statistical estimate keeps a pulse on the prices of consumer goods and does not adequately reflect the rising costs of operating a rental business, but it “is what it is.”

At their meeting on June 20, 2018, Rent Board members announced the 2018 Annual General Adjustment (AGA) rent increases at 3.6%. Effective September 1, 2018, the Maximum Allowable Rent for tenancies in effect prior to September 1, 2017, will increase by 3.6%.

Informing tenants of the rent increase

A common denominator in rent control rules we see at Bornstein Law is that even if landlords are compliant with the law, proper notice must be given to tenants. For example, Oakland’s Rent Adjustment Program affords tenants substantial protections before they even move in – Oakland landlords must give income residents formalized notice of their rights in the form of a RAP notice.

Similarly, RICHMOND, CAL., MUN. CODE § 11.100.060(g) requires that Richmond landlords provide a rent increase notice to the tenant which includes a brochure prepared by the Richmond Rent Board fully describing the legal rights of the tenants. If the landlord does not provide this required notice and information packet, the rent increase is void.

Relocation Payments

One of the most controversial aspects of the law is the establishment of relocation fees, running upwards to $16,000, that the owner could have to pay to tenants when the rental property is sold or it becomes owner-occupied.

Petitions a free for all

The Richmond Rent Board has an open-door policy in hearing landlords and tenants.

It seems that compared to other Bay Area locales, Richmond takes a refreshing posture in acknowledging the voice of landlords. With the rising costs of doing business, we’ve noted that other cities have frowned upon passing on operating costs to other tenants, but Richmond takes a more balanced approach by allowing owners to absorb the costs of property taxes, capital improvements, and other increases in the housing services provided. We hasten to say that with due process and transparency in mind, the tenant can chime in when the landlord petitions the Richmond Rent Board.

Disgruntled tenants can also initiate petitions of their own to air out their grievances, including a Petition Rent Ceiling Downward Adjust and an Administrative Complaint.

Parting thoughts

Like most other topics we cover, this piece only scratches the surface, leaving many issues unresolved, including Ellis Act evictions, roommates, and owner move-in evictions. Ironically, while we design to educate the rental housing industry, our articles tend to generate more questions than answers – contact our office to fill in the blanks.

A perceived rash of resident displacement and rampant homelessness has led to clarion calls for Berkeley to increase housing stock, with the latest proposal to put a $135M affordable housing bond on the November ballotUntil the city finds a way to put a dent in the affordable housing dearth, though, a cramped two-bedroom studio apartment can easily go for more $3,000.

It’s no wonder, then, that there has been some inherent friction between landlords and tenants in a city that has some of the most ensconced tenant protections anywhere. Although Berkeley’s labyrinth of rent control rules is particularly complex, we provide an overview here.

Two Components

The Berkeley Rent Stabilization and Eviction for Good Cause Ordinance have two distinct protections that are best compartmentalized. On one hand, the ordinance dictates permissible rent increases and the other arm of the law spells out “just cause” eviction protections. Collectively, the ordinance is referred to in most parliaments as Berkeley Rent Control.

Is the building subject to Berkeley Rent Control?

The first algebraic equation to solve is whether the rental unit is governed by rent control and if so, which tenant protections apply. To find the answer, we have to look at the year the building was constructed, the number of units, date of occupancy, and ownership stakes among other factors.

Some units in the City of Berkeley have eviction protection but do not have limitations on rent increases. Other units have both the eviction protection and the rent increase protection. Still other units have no protections.

DOWNLOAD THIS HANDY PDF TO SEE IF RENT CONTROL APPLIES »

An interesting side story is underway, as efforts to repeal the Costa Hawkins Rental Housing Act are gaining traction. The longstanding law limits rent control and mandates “vacancy decontrol.” Forward-thinking municipalities with comprehensive rent-control measures are starting to consider how to modify their own ordinances if the state law is repealed. Berkeley hasn’t meddled with its original 1980 rent-control ordinance since Costa Hawkins, but the Berkeley Rent Board and Councilmembers are taking a hard look at making changes as November marches closer. Get a behind-the-scenes look: Berkeley prepares for potential repeal of Costa Hawkins Rental Housing Act.

Rent Increases

Rental property owners can raise the rent once a year, but only to the tune of 65% of the annual increase in the Consumer Price Index, or CPI. You can consult this calculator on the Rent Stabilization Board’s website.

Reasons to evict

If the rental unit is indeed covered by eviction protection, Berkeley landlords can only evict for one of 12 reasons, also known as just causes. Some examples include failing to pay the rent, damage to the unit, creating a nuisance for neighboring tenants, or otherwise being culpable a lease violation – all permissible reasons to evict are delineated here.

Owner move-in evictions in Berkeley

The term “eviction” may be synonymous with bad tenants, but there may be circumstances when studious tenants can be legally transitioned out of the unit for the owner’s or a close relative’s own use. Also known as an OMI or RMI, this “no-fault” eviction comes with many caveats. Berkely’s Rent Ordinance prohibits owner/relative moves under two sets of circumstances:

  1. The tenant has lived on the property for five or more years and the landlord has a 10% or greater ownership interest in five or more residential units in Berkeley, or
  2. The tenant is at least sixty years old or disabled and has lived on the property for five or more years.  If all the landlord’s units are limited by the above, an eviction for the owner or relative to move in is only permitted where:  the landlord has owned the property for five or more years and is at least sixty years old or disabled, or the landlord’s relative is at least sixty years old or disabled.

Owners should also be aware that they cannot pursue an owner or relative move-in eviction during the school year where there is a school-aged child in the dwelling. A similar measure was unsuccessfully challenged in San Francisco, a topic we took on in this article.  When an owner or relative move-in eviction is permissible, the landlord must afford a minimum of sixty days’ notice to recover possession of the unit. 

Tenant buyouts in Berkeley

Berkeley landlords should understand the Tenant Buyout Ordinance (TBO), a law that regulates a quid pro quo – in exchange for compensation, the tenant voluntarily agrees to vacate the rental unit. A properly structured buyout agreement is a particularly attractive vehicle when there are no convenient legal grounds to evict a tenant.

With tenant lawsuits proliferating throughout the Bay Area, buyout agreements have the added advantage of cauterizing risk, to the extent that the tenant generally releases the landlord from liability.

Effectuating a proper buyout agreement is never easy going and Berkeley has erected many rules to make sure they are done right. Like most other bodies throughout the Bay Area, Berkeley lawmakers had a natural distrust of these voluntary agreements when enacting the ordinance, for fear that the tenants may not enter into these negotiations so voluntarily.

The overarching goal of the ordinance is to afford residents who are approached with the offer of a buyout to make an informed decision and sleep on the proposal without coercion, but the tenant need not carefully deliberate on their own – they are entitled to consult with the Rent Board.

That is if they choose to entertain the offer at all – under Berkeley’s Tenant Buyout Ordinance, the tenant can give the landlord a cold shoulder. If the tenant doesn’t want to even open the discussion of a buyout, the topic is shut and closed.

Once a Berkeley buyout agreement is inked, tenants with buyer’s remorse (or shall we sell seller’s remorse) can change their mind – vacillating tenants have 30 days after signing to rescind the agreement. If the requirements of an executed TBO has not been met, however, the tenant can rescind the agreement at any time.

From our hard-won experience, it is rare for a tenant to rescind their agreement. It seems that once the outgoing tenant affixes himself or herself on the dollar signs, they take the money and don’t look back. Nonetheless, the law demands that the tenant is aware of their right to bow out.

The cost of buyouts

Every circumstance is different. The tenant’s leverage in negotiating a payout amount will vary by zip code, the nature of the landlord-tenant relationship, whether the uprooted resident is disabled, elderly, or itching to leave, and the landlord’s own urgency to make way for incoming residents.

As a sidebar, although we are willing and able to negotiate buyouts with tenants, it is sometimes advisable for the landlord to initiate the actual discussion with their tenants, leaving us to stay “behind the scenes” to handle the hard legal lifting. If we broach the conversation of a buyout with the tenant, they may get intimidated or over exuberant and then elicit the help of a tenant attorney who will come back to us with an overly aggressive offer.

At any rate, rental housing providers doing business in Berkeley is tough stuff – contact our office to navigate the minefields. 

 

 

After a hyper-focus on San Francisco and Oakland, we expand our trek to other Bay Area locales that have unique housing issues.

Santa Clara County’s challenges were condensed in a June 21 report from a grand jury tasked with the affordable housing dearth. Its findings seem academic – we have said in many venues that cities have fallen short of housing goals and despite many state laws aimed at removing construction barriers, municipalities continue to resist change and are slow to remove the red tape necessary to accomplish development.

This inertia shines through in the report and while it doesn’t necessarily reveal any new information, it validates what we and our industry partners have been parroting for some time.

“Density is Our Destiny”

That’s the clever title of the report and as its name implies, the overarching message is to encourage development with an emphasis on below-market-rate (BMR) housing near transit hubs.

One of the grand jury’s recommendations is that in an affluent area attracting talent, employers should chip in to absorb the costs of affordable housing. All 15 cities have woefully fallen short of these goals, the report submits, and strikes a particularly forceful tone when it frames the debate over housing as a tussle between the NIMBY (“not in my backyard”) mindset and the growing YIMBY (“yes in my backyard”) movement that is led by millennials and, as we noted in an earlier post, is increasingly composed of forward-thinking progressives and environmentalists who have traditionally opposed development.

When there is an affordable housing deficit, there are calls for rent control

In the alphabet soup of rental housing rules throughout cities in Santa Clara County, we are hard-pressed to cover them all, but Mountain View and San Jose have garnered the most attention. With both cities being magnets for high-paid tech workers, rent control has been a particularly divisive issue.

Born and bred in Mountain View, renters Chris and Angelica fear the prospect of moving far away because of exorbitant housing costs and being pushed out by an influx of tech workers who have put upward pressure on rents.

Their sentiment was widely shared by other residents, leading to the passage of Measure V, the Community Stabilization and Fair Rent Act. The measure limits rent increases to the Consumer Price Index for certain properties and rolls back rents to October 2015 levels for tenants who were living in the unit before that time. It also affirms the city’s “just cause” eviction ordinance and gives power to the Rental Housing Committee, the body responsible for setting  “fair” and “equitable” rent levels, ruling over landlord-tenant disputes, and implementing Measure V.

San Jose follows suit

Dominated by progressive policymakers, the San Jose City Council’s response to the city’s growing pains was to pass the San Jose Rent Control Apartment Ordinance, which regulates rent increases, and San Jose Eviction Control, which bars landlords from evicting tenants without just cause. Rent increases are limited to a maximum of 5% per year.

Properties built prior to September 7, 1979, it may be subject to San Jose Rent Control, though exceptions are made for two-unit buildings, single-family homes, and condos. When in doubt, contact our real estate attorneys to determine if the law applies to your rental units.

The San Jose Tenant Protection Ordinance is particularly complex because it is an enrollment-based program whereby a resident may enroll an eligible unit into “just cause” protections based on a tenant complaint or legal status. The enrollment can take the shape of “limited term enrollment” lasting six months, or “full enrollment” lasting two years.

The city also has nuanced rules relating to owner move-in evictions (OMIs), a vehicle which may be viable for landlords to transition tenants out of the rental unit for their or a close relative’s own use when the owner has a 50% or more interest in the property. In this event, the landlord or his or her relative must move into the unit within three months. After occupying the unit, the owner or relative must make this their principal residence for at least 36 continuous months.

Owners of San Jose rental properties should be aware that with OMIs and other no-fault evictions, the tenant may be entitled to relocation assistance.  Landlords should know that wrongful evictions and other violations of San Jose rent control can carry severe penalties in the form of injunctions, money damages, costs and attorney fees, and penalties that can be tripled by the court if the landlord is found to willfully flaunt the rules.

Our parting thoughts

We personally welcome high salaries that increase the tax base and creates a greater degree of wealth that is shared throughout the Bay Area. Make no mistake, like the typewriter going out of fashion, the tech industry is a disruptor that will continue to impact the housing industry, but our vibrant economy is the envy of the world – if we attempt to stop it, in our view, we will end up regretting efforts to meddle.

History has taught us that with growth, there will be friction between landlords and tenants, but you can rely on Bornstein Law to avoid or resolve these conflicts, properly manage tenant relationships, and cauterize risk.

In between practicing law and going on the speaking circuit lately to talk about the ever-evolving rent control rules of San Francisco and Oakland, there’s been scarce mention of other locales, so we pivot now to San Jose, which has been a beehive of activity.

History has taught us that with growth, there will be friction between landlords and tenants, and no city knows this better than San Jose. As one of the most expensive rental markets anywhere, it is no wonder why rent control has become a polarizing issue in a technology hub that needs to accommodate not only high-paid engineers and programmers but cafeteria workers, shuttle drivers and security guards.

The proposed “Google village” near downtown has reignited the city’s storied wrangle with rent control and how to handle the influx of residents while keeping a pulse on the costs of living.

Tenant advocates tote signs that read, “Hey Google, affordable housing now,” and “Are your Google ad dollars leading to homelessness?” →

Growth begets friction, which begets tenant attorneys

With the temperature of the rent control debate not cooling down, perhaps it’s time for owners to revisit San Jose rent control laws, – we’ve provided an overview of them here.

Assuredly, with San Jose’s rent control rules so complex, inventive tenant attorneys will wedge every obstacle they can grasp for to thwart or delay an unlawful detainer action. We noted in an earlier article that some favorite gambits of tenant attorneys are claims that the rental unit is unfit or unsafe for human occupancy, frivolous pre-trial motions such as “motion to quash service,” motion to strike, allegations of discriminations and still more demurrers to prolong the case and enlarge the legal bills of the landlord.

Yet tenant attorneys in San Jose seem to be eyeing an obscure part of a law that makes it easier to bring suit against owners where habitability is at issue.

Some housekeeping is in order

In many other venues, we’ve pointed out that a landlord’s fundamental and immutable responsibility is to provide a dwelling fit for human occupancy and habitation. The landlord’s duty to provide a habitable dwelling is known as the warranty of habitability and is implied in every California residential lease agreement. If this basic obligation is not met, tenants or their attorneys can use this as an affirmative defense to an unlawful action, but it doesn’t end there.

In this San Jose ordinance, a tenant can institute a civil action and be entitled to other remedies if the landlord creates a squalid condition. Under this safeguard that adds teeth to state law, owners may be liable for actual damages, costs, attorney’s fees and stiff penalties.

With San Jose’s growing pains of ushering in the tech industry and those in its shadows, there will inevitably be conflict, but landlords can count on the informed advice and advocacy of Bornstein Law.

 

Oakland is at it again.

As the darling of tenant advocates, the city has slowly chiseled away at owner rights like a prison break. Not so long ago, the city mandated tenant relocation payments when residents are displaced when the owner or their relatives attempt to recover possession for their own use.

Continuing down the path of tenant protections, a new ordinance was ushered in to regulate tenant buyout agreements to safeguard residents who are offered money in exchange for voluntarily leaving the rental unit. We noted earlier that in most other locales, it’s uncommon for laws to be enacted that regulate the negotiation and agreement of parties, but following in the footsteps of San Francisco, Oakland’s Tenant Move-Out Agreement did just that.

For an undercurrent of tenant protections in City Hall, it’s not enough. Now, there are efforts underway to peel back a 2002 ballot measure passed into law which exempts small landlords from Oakland’s “just cause” eviction protections.

Some background is in order

The Oakland Residential Rent Adjustment Program applies to buildings with two or more units in Oakland that have a certificate of occupancy prior to January 1, 1983 and dictates that a property owner must have a “just cause” to evict a tenant such as failure to pay rent and other breaches we’ve outlined here. Yet the voters carved out an exception for owner-occupied duplexes and triplexes, a safeguard for small property owners that was challenged at the June 28th Rules & Legislation meeting. Spearheaded by Councilmembers Gallo and Kalib, Agenda Item #4.27 would ask the voters in November to remove the exemptions for 2 and 3 unit owner-occupied buildings and added eviction defenses.

Where the proposal goes from here

Council Community and Economic Development Committee (CEDA) is the arbiter of whether the ballot measure moves forward. In concert with the Oakland Berkeley Association of Realtors, East Bay Rental Housing Association and other industry partners, Bornstein Law urges our fraternity to attend the Tuesday, July 17th meeting at 12:30 p.m. You can let your voice be heard on the 3rd floor at  Frank H. Ogawa Plaza in Oakland.

Some air support from news outlets?

In much of the media coverage we absorb on Bay Area housing, it seems that tenant protections are put on a pedestal and property owner rights, if glazed over at all, take a back seat. When this topic graced itself in the news, then, it was with little surprise that the rhetoric fell squarely on the side of tenants.

Our thoughts, for what it’s worth

When laws are passed which benefit property owners, there is an air of shock or injustice over “greed-fueled displacement,” “outside speculators,” and other less-than-endearing terms that paint rental housing providers with a broad brush without making any distinction between Goliath landlords who own hundreds of units, mom-and-pop owners, or first-time homebuyers who, with the vacancy rate so low, must transition tenants out of the property to move in.

But in fact, Oakland voters made the distinction in 2002 by passing a ballot measure which exempts small landlords for the city’s just cause eviction protections. Predictably, this duly enacted law is dubbed a “loophole.” In the news piece, hidden cameras follow real estate agents around, making them seem complicit in something nefarious by pointing out regulations when in fact, they correctly state the law.

Though we noted that there are many popular terms used by tenant advocates to coin owner move-in evictions, this is the first time we have heard a legal OMI called a “uniquely profitable business model.” Those who use this term would get some argument from Wayne Roland, President of the East Bay Rental Housing Association.

“This is your home. This is not like a business like the guy who’s got the 100-unit building – this is where you live… it takes two to tango. You can’t just set up rules that favor tenants and have your concerns always related to the tenants. You have to be concerned about the people who are providing that housing, as well.”

OBAR makes its own case against the measure

With the fate of many of its members hanging in the balance, The Oakland Berkeley Association of Realtors has articulated some cogent arguments why the duplex/triplex exemptions should not be repealed. In their own words:

  • The Duplex/Triplex Exemption to Just Cause protects Homeowners that live with their tenants. Homeowners that live in Duplexes/Triplexes have a special relationship with the tenants they provide housing to. They share walls, backyards, driveways with one another and see each-other on a daily basis.
  • Most of Duplex/triplex properties in Oakland are occupied by homeowners that are long-term residents of Oakland.
  • Homeowners in Duplexes/triplexes are not rich. They provide housing to the tenants they live with in order to stay in Oakland and provide for themselves in retirement. Homeowners will have to spend thousands of dollars on attorneys if their safety if a problem arises with a tenant they live with.
  • Laws already exist that protect tenants when a homeowner moves into a duplex/triplex.
  • Homeowners are already scared to rent units on their property. Removing this exemption will discourage people from renting units they already have or building and adding rental units to their homes. This is completely contradictory to Oakland’s plan to encourage people to build more housing in the city.

Join us for a workshop discussing this and everything Oakland Rent Control

As proud East Bay residents, we have been elated to see Oakland emerge as a resounding force in the Bay Area, but we have also been alarmed by its gradual erosion of property owner rights. More than ever, it is vital for Oakland rental housing providers and the professionals who service them to understand the laws surrounding the cities’ ever-morphing rent rules. 

Register for the July meetup here.

 

 

 

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

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

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

The law added new teeth

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

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

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

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

Don’t get lost in translation

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

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

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

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

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

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

The selection of a translator can be challenged down the road

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

Ongoing responsibilities

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

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

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

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

Unwavering resolve

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

This author always enjoyed watching Parking Wars, A&E’s popular reality television series that follows traffic enforcement employees as they ticket, “boot,” tow and release cars back to their owners in the performance of their parking enforcement duties. If you haven’t followed the show, you can nonetheless imagine that these encounters can get heated.

There are other parking wars being waged in rental units throughout the Bay Area, with space such a scarce and prized commodity. The maddening quest for street parking is not just a tribulation for drivers, but often a trial for tenants.

Landlords are charged with the fundamental task of providing tenants a nice place to live and useful amenities and in turn, tenants pay for the privilege of residing there. With adequate parking one of the most important amenities to tenants, it’s no surprise it can also be one of the top causes of frustrations and conflict between landlords, tenants and other residents living in close quarters.

Implied in every California lease is the tenant’s right to reasonably occupy the dwelling peacefully and without recurring disruption. A loss of parking, then, may very well constitute a breach of the landlord’s duty.

Not uncommonly, we encounter inventive tenants who carve out makeshift parking spaces that are not authorized or interfere with another tenant’s “quiet enjoyment” of their dwelling. Of course, another tenant is not allowed to infringe on their neighbor’s right to quiet enjoyment and since a tenant does not have a lease with his or her neighbor, taking over another resident’s assigned parking spot is called a nuisance and though not covered under the covenant of quiet enjoyment, the offending tenant could be culpable of a lease violation.

Don’t let parking wars fester

Although Californians are familiar with road rage, we queried YouTube for the term “parking rage,” and the video results produced spirited conflicts too colorful to share here, but we did come across this G-rated police blotter which recounts a woman being threatened and nearly mowed down by a motorist who felt he was entitled to the parking spot she claimed.

From our hard-won experience in managing landlord-tenant relationships, we have found that a great number of owners and property managers are conflict avoiders and would rather kick the can down the road in hopes that conflicts will somehow work themselves on their own without proactive action. When this wishful thinking fails, the underlying conflict is almost always enlarged, and so we advise owners or their agents to reign in parking spaces and take proactive action by serving a 3-Day Notice to Cure or Quit and if the uncourteous, recalcitrant tenant continues to park where they don’t belong, it may constitute a reason for eviction.

What does the lease say?

Like most rental rules, much miscommunication can be avoided with an ironclad lease that addresses parking and anticipates potential issues with the unique circumstances of the property. Many landlords have the tendency to use stale, outdated leases that leaves parking a dangling, ambiguous topic. Here are just some of the considerations that should be aired out in the lease agreement.

  • Vehicles in areas that are not designated for parking, such as lawns, common areas, in front of dumpsters, double parking, cars off to the side of the driveway or parking lot, etc.
  • Each unit assigned specific parking spaces, accommodating parking for the tenant’s own vehicles with assigned parking spaces, perhaps painting numbers for each parking stall and recording them in the lease agreement or a parking addendum, even ID stickers for tenant vehicles to display. 
  • Clarification of guest parking rules: Tenants are allowed by law to have guests at the property that they renting or leasing and while the landlord can impose limits on how long those visitors can stay, often not spelled out in the lease is where those guests park. Tenants or his or her guests should have a clear understanding that parking in another resident’s assigned space is not allowed and perhaps, subject to towing. 
  • Specifying a specific, properly-sized motorized vehicle for each parking space: Improvising tenants may attempt to squeeze in a motorcycle with their car, or take full advantage of the parking space with a weekend RV, trailers, boats and other vehicles that push the envelope of a reasonably sized parking space. Other times, there may be instances of junked or inoperable vehicles that create an eyesore to the property. Similarly, some tenants may have an affinity for excessive washing or repair of a vehicle, creating an impromptu car wash or auto repair shop with tools and trinkets that spill into areas that are designated for other tenants.

If tenant parking is glaringly absent from your rental agreement, perhaps it’s time to sit down with an attorney to plug the holes.

Whether the physical space is altered through additions, conversions and the like, tenants come and go, or other circumstances of the rental business change, parking accommodations can change with it. We will resist the temptation here to relate stories, but suffice it to say parking rules can be an evolutionary process, with landlords discovering new issues and facing unheard-of situations on a regular basis.

Since parking is such a potentially contentious amenity, we recommend owners communicate any parking changing in writing, perhaps in the form of an addendum, and the landlord may also consider changing the terms of the tenancy. The landlord’s ability to modify the rental agreement and the required amount of notice afforded will depend on how cooperative the resident is, the tenancy type and how long the tenant has occupied the unit. 

If the tenant fails to comply with the notice of the change of tenancy terms after the expiration of the notice period, the owner may serve a notice to perform covenant or quit and if the parking violation isn’t corrected, eviction measures can be pursued.

Still other issues linger

A tenant who is given a place to park may improperly convert the space into a storage area and worse, create a living space. Using garages for human habitation is a cardinal sin and exposes landlords to significant liability, we noted in this article on unauthorized tenant alterations.

Another ancillary issue we see is when a landlord takes away parking in a rent-controlled jurisdiction. If the aggrieved parker feels that they have been shortchanged any amenities promised in the rental agreement, the tenant can petition a rent board for a reduction in base rent because any perceived reduction in amenities should be met with a commensurate reduction in rent, he or she will argue.

A word about towing

Landlords can tow improperly parked on their rental property, with many caveats. If the parking obstruction is deemed not too obstructive severe, we might advise landlords to have a polite conversation to air out the issue before availing the California Vehicle Code and calling the tow company. Merely because a landlord “may” remove a vehicle does not necessarily mean they “should.” Stranding tenants may not further the landlord’s best interests. Nor does turning a blind eye, such as when a third party’s vehicle prevents another tenant’s ingress and egress. Reasonable judgment and common sense should be used.

If towing a vehicle becomes necessary, the law requires ample notice be given to the owner that he or she risks having the improperly parked vehicle towed at their expense. 

This prominent notice must be displayed at the entranceway to the property – although rental property owners can elect to display these warnings elsewhere, it must at least greet visitors upon their entry to the rental property.

The sign must contain the name and telephone number of the towing company, as well as the telephone number of local law enforcement so that the wayward parker can ascertain the whereabouts of the vehicle and be afforded the opportunity to recover it.

A landlord’s obstruction of parking can be tantamount to harassment

In November 2014, the Oakland City Council adopted the Tenant Protection Ordinance (“TPO”) in response to a perceived rash of landlord harassment and intimidation that purportedly led to the displacement of tenants. This ordinance aims to deter landlords from threatening to, interrupting, terminating, or failing to provide housing services. When a tenant feels that the landlord has adversely affected their parking arrangements, it is possible that harassment or intimidation can be alleged.

Berkeley likewise anticipated illegal evictions through intimidating or coercive conduct and codified this disfavor into law. (B.M.C. 13.79.060)

The quintessential point is that parking policies should be well-thought-out, documented and clearly understood by all parties. If there is a gaffe in communication, rent boards are all too willing to air out the resident’s parking grievance, often to the detriment of the owner.

Of course, you can turn to Bornstein Law to avoid or resolve parking wars. Contact our office for informed advice.

 

At Bornstein Law, we love teachers. As parents, we are the first to acknowledge the toils of educators and the indispensable role they have in the classroom. We also love protecting the rights of property owners, and it’s not our call to take sides, but to educate the industry on laws on the books that have been decided by legislators and the courts. One such matter has played itself out in the judicial process and is now resolved.

San Francisco’s prohibition of no-fault evictions against school employees during the academic year has survived a final legal challenge and remains the law of the City by the Bay.

With several caveats, owners can evict a tenant when the owner or a close relative desires to live in the rental unit, but teachers and kids are nearly eviction-proof, at least during the school year. That’s because Ordinance No. 55-16, unanimously passed by the Board of Supervisors in 2016, catapulted school staff to a newly protected class, prohibiting their displacement through a no-fault eviction during the academic year. The law also bars condominium conversion, removal of the rental unit, capital improvement and “substantial rehabilitation” evictions for educators and students during that time.

Landlord groups successfully challenged the new protections in court, with Superior Court Judge Ronald Quidachav’s ruling that the law was “invalid on its face, pre-empted by state law and unenforceable.” However, an appellate court panel disagreed with this logic, and teachers rejoiced when the judge’s ruling was reversed.

When we first visited this topic, we predicted that given the constitutional gravity of the matter – a clash between state and local law – arguments for and against the ordinance would be heard by the state Supreme Court. California’s highest court aired out the issue and affirmed the city’s limitations on a landlord’s ability to effectuate no-fault evictions during the school year.

Bornstein Law has proudly represented aspiring homeowners who make their first purchase. But, with the vacancy rate so low in San Francisco, these buyers must use an owner move-in eviction as a vehicle to gain access to their property. Having stretched their finances for an astronomical mortgage to purchase a property, we’ve taken great pride in giving these buyers the ability to use the property.

A great number of these buyers themselves have children, and so while we recognize there is perhaps no other occupation that brings more value to our community than educators, taking a balanced approach, we maintain that the rights of homeowners should deserve some consideration and not be a casualty.

There is some misplaced sentiment propagated by tenant advocates that owner move-in evictions are overused by opportunistic landlords who attempt to raise rents for an incoming tenant willing to pay it. While there are always some bad apples, those cases are few and  far between, and you will get some argument from first-time homeowners who, without availing themselves of this highly regulated path to homeownership, would not be able to live in a property located in a city that is short of unoccupied units and, as it now stands, will have difficulty moving in during the school year.

While there has been a steady erosion of property owner rights, you can rely on Bornstein Law for proper counsel in achieving your real estate goals.

With the wind against the backs of tenant advocates, rental housing providers are getting nervous about efforts to repeal the decades-old Costa Hawkins Rental Act, a state law which tempers a municipality’s inclination to enact onerous rent control ordinances.

What we predicted as inevitable has become reality, with the Secretary of State’s office recently reporting that backers of the initiative – dubbed the “Affordable Housing Act” – have crossed the finish line by garnering well over the 365,880 signatures needed to qualify for the November ballot.

Up until now, attempts to strike the law from the books have flopped. A state appellate court ruling in 2009 struck down an affordable housing mandate in the City of Los Angeles, a decision that had statewide implications by upholding Costa Hawkins.

Undeterred, affordable housing advocates took to the dome of the Capitol and introduced legislation to repeal the Act. Had it passed, Assembly Bill 1506 would have enabled cities throughout California to impose vacancy control – a landlord’s ability to set rent at market rate when a unit is vacant a new tenancy is established – and to place single family homes, condominiums, and buildings built after 1979 under rent control.

What is Costa Hawkins? Get an overview here →

In an earlier article, we warned our fraternity not to get a false sense of bravado after this legislation was dead on arrival in an Assembly committee following spirited testimony from residents who said the rent was too damn high, and worried landlords looking to protect their investments.

Although the battle was won by defeating AB 1506, the war on property owner rights morphed into different shapes, forms and sizes as inventive legislators in the tenant’s camp seemed to adopt a new strategy.

When it became too ambitious to repeal Costa Hawkins, lawmakers who we coined the “gang of three” introduced more insidious bills aimed to chip away at property owner rights in a piecemeal fashion. If the outright repeal of Costa Hawkins was met with too fierce opposition, progressives pivoted to proposals that would melt away owner protections slowly like a candle, a clever retooling of their agenda, but a tactic which ultimately failed.

These bills shared the same fate as AB 1506 by dying on the vine, yet even as the champions of tenant rights unsuccessfully moved their agenda forward, another effort behind the scenes was gaining more traction – a mass gathering of signatures to place Costa Hawkins repeal on the November ballot. 

Now that the grassroots effort has reached its goal to take its agenda directly to the ballot box, the reality is beginning to set in for jittery property owners – the repeal of Costa Hawkins is more than a whispering possibility. It just might pass this time around.

A movement long in the making

Since progressives waged the battle against Costa Hawkins years ago, the political winds have increasingly blown in favor of their cause, but what changed? It was a multiplicity of factors and one catalyst has been the migration of Corporate America to cities.  After hunkering down in suburbs, huge companies have established urban beachheads, lured by tax incentives and a pool of young, digital talent who seek urbane life and are willing to forgo the American dream of homeownership.

With cities becoming a magnet for high-paying jobs, upward pressure on rents ensued. Discontent with rising rents, quarrels over gentrification, and a burgeoning homeless population created the perfect breeding ground for the rent control movement to spread. This time, it has reached critical mass with a well-organized and well-funded coalition that poses a more formidable threat to Costa Hawkins than the failed campaigns of yesteryears.

Bad housing policy

The rental housing industry has always opposed rent control in every form or fashion, but the calls to arms now seem apocalyptic.

“The heart and soul of our argument is something this radical pours gasoline on our housing crisis and makes it worse,” said Steve Maviglio, a spokesman for the opposition campaign called Californians for Responsible Housing.

Visitors who click on the California Rental Housing Association’s website are greeted with an “urgent” and “critical” alert about Costa Hawkins. Once clicked, the important information? “The flawed housing initiative will make California’s housing crisis even worse”, is the headline in big bold font highlighted in red, before railing against the flawed initiative.

Noni Richen, President of the Small Property Owners of San Francisco, doesn’t mince words in his message to the architects of the initiative.

To renters, we have an honest and responsible message: If you think it’s hard to find a rental now, imagine how hard it will be when builders have no incentive to build rentals and owners resist renting out units…

Other owner advocacy groups echo this sentiment in clear and sometimes scathing terms, yet it is not only rental property owner advocates who are debunking the logic of the assault on Costa Hawkins, but a phalanx of economists and sensible newspapers – this editorial board says trying to fix a housing crisis with rent control is like sending an oil tanker to put out a forest fire.

Our take

“It could have a tsunami effect throughout California,” founding attorney Daniel Bornstein was quoted as saying in this article. Noting the repeal of Costa Hawkins would alter the “whole economics” of how developers eye development opportunities, he observes that “it’s hard enough and costly enough for a developer to make a decision to build housing, and they are now put on notice that the housing may be subject to rent regulation.” He goes onto say that developers “may very well be unwilling to make those tough decisions of being invested in building a development.”

All of us want stable housing, but according to Daniel, more rent control is not the solution. “Impacting market-rate rents doesn’t necessarily create stable housing for all,” he says, but instead, it would create “a terrible situation where there is a limitation on supply and an over demand on the available vacant units, which ends up increasing rents for those vacant units.”

The Affordable Housing Act is a misnomer, then, because it would only aggravate the affordable housing deficit. 

What you can do

With the campaign to nix the Costa Hawkins Rental Act almost Presidential in scope, the rental housing industry has been asked to infuse money into the machinery necessary to defeat it. Get involved.

Tenant advocates are in a celebratory mood after Proposition F sailed to victory in Tuesday’s special election. In an only-in-San-Francisco moment, 56 percent of the voters passed the measure, which guarantees free legal representation to tenants facing an eviction, regardless of the underlying cause for the eviction.

Dubbed the “No Eviction Without Representation Act,” the measure also makes no distinction from poor tenants or the well-to-do – counsel is afforded to tenants of all income levels, including the wealthy, without means testing to determine if the person headed for eviction has a genuine need for free legal help. The city controller estimates this ambitious initiative will cost between $4.2 million and $5.6 million annually.

Bornstein Law joined the San Francisco Apartment Association and other industry partners in opposing the measure, but the people have spoken. With Proposition F the law of the land, we won’t dwell on the colorful storyline that led up to the law being minted, but instead, focus on what this means for rental property owners in the wake of its passage.

Rest assured, the newly appointed tenant attorney will make every effort to delay the unlawful detainer by using tactics and wedging obstacles that are beyond the sophistication of tenants who ordinarily would fend for themselves if not for the free legal aid.

Tenant attorneys are inventive

In an earlier post on California’s implied warranty of habitability, we noted that it is not uncommon for non-paying tenants to claim that the rental unit is unfit or unsafe for humans to occupy, a favorite gambit tenant attorneys use to drag on an unlawful detainer action. This affirmative defense is rarely successful, but clever smoke and mirrors are used to delay the inevitable eviction.

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, who have no legal entitlement to free legal counsel but are forced to pay attorneys fees to defend against assertions that oftentimes go unsupported by any evidence.

Don’t kick the can down the road

From our hard-won experience, many rental property owners are conflict avoiders and would rather kick the can down the road in hopes that a failed relationship will resolve itself on its own. We have always warned these wishful thinkers that an unlawful detainer action can take some time. Translation: if swift and proactive action is not taken at the outset of the dispute, the landlord can lose months of rent by waiting for the unlawful action to play out.

The message of addressing a problem early on is one we’ve been parroting to rental property owners for years, but now must be amplified on the heels of Proposition F because, rest assured, the newly appointed tenant attorney will make every effort to delay the unlawful detainer by using tactics and wedging obstacles that are beyond the sophistication of tenants who ordinarily would fend for themselves if not for the free legal aid.

Our biased or not-so-biased conclusion

When Proposition F first appeared on our radar, we debunked its logic in the blogosphere, on social media, and in thousands of emails.

If we didn’t steadily rail against it, you might think we are opportunistic by saying the measure calls for aggressive representation and a counter-narrative by a law firm dedicated to protecting the rights of rental property owners and standing up to tenant attorneys.

We are open for business.