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California cities are the arbiters of what happens if Costa Hawkins is repealed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

 

San Francisco’s mayoral race has become charged in a very Bay Area way in an epic battle between progressives and moderates. This New Yorker article says the fractious contest will define the future of the left and will serve as a litmus test for the way it is thinking as a collective.

No matter what your ideology may be, whoever inherits the final 18 months of the late Mayor Ed Lee’s second term will have to tackle housing issues and shape policies that are consequential to rental property owners in a strong-Mayor town.

We wanted to put a pulse on where our industry partners stand, and the report card is in. The San Francisco Association of Realtors, Small Property Owners of SF and the San Francisco Apartment Association all endorse lifetime renter and moderate Board of Supervisors President London Breed. Breed is both pro-tenant and pro-developer who believes the affordability crisis is driven primarily by a lack of housing supply.

“The housing crisis has grown visibly worse recently, but it is — at its core — the result of decades of bad housing policy in San Francisco and the Bay Area.” ~ London Breed

This sentiment and balanced approach seems to resonate well with owner advocacy groups, who are also in agreement in opposing Mark Leno or Jane Kim. Predictably, all are in unison by opposing Proposition F, dubbed the “No eviction without representation Act of 2018,” which would establish a City-run and funded program to provide free legal representation for all tenants in the city who are facing eviction, regardless of the underlying cause.

Sitting Superior Court Judges Andrew Y.S. Cheng, Curtis E.A. Karnow, Cynthia Ming-mei Lee, and Jeffrey S. Ross are viewed to be more moderate than the progressive candidates vying for the bench and so anyone tethered to the rental housing industry may be advised to leave all enough alone.

We’ve noted before that the fraternity of rental property owners and the professionals who service them can band together to defeat repeal efforts of the Costa-Hawkins Rental Act, and in the same spirit, urge you to get out to the polls on Tuesday to assert your voice.

Even as we continue to keep an eye on the big picture and follow legislative/regulatory changes and the influencers that shape policy, you can count on Bornstein Law to handle the more mundane legal issues and landlord-tenant disputes that arise in your rental business. Contact us for informed advice.

In the vast majority of cases of strained landlord-tenant relationships that cross our desk, a tenant’s alleged transgression is “curable,” meaning the tenant can fix whatever problem has incurred the angst of the landlord.

Whether the resident is late on his or her rent, the tenant keeps pets in violation of a no-pet policy, plays loud music at all hours, or are in breach of other covenants contained in the lease, they more often than not have an opportunity to pay the rent or correct the underlying behavior.

On behalf of our clients, we commonly serve notices instructing tenants to either pay the rent or move within three days, or similarly, to move within three days if the tenant does not cure another rental agreement violation. Yet illegal activity constitutes a violation that is not curable — so egregious is illegal activity on the premises, the tenant is not afforded the opportunity to remedy the unlawful behavior.

Recognizing that certain types of conduct pose extreme risks to the well-being of residents, Code of Civil Procedure (CCP) section 1161(4) provides rental property owners a vehicle to commence an unlawful detainer action when:

Any tenant, subtenant, or executor or administrator of his or her estate heretofore qualified and now acting, or hereafter to be qualified and act, assigning or subletting or committing waste upon the demised premises, contrary to the conditions or covenants of his or her lease, or maintaining, committing, or permitting the maintenance or commission of a nuisance upon the demised premises or using the premises for an unlawful purpose, thereby terminates the lease, and the landlord, or his or her successor in estate, shall upon service of three days’ notice to quit upon the person or persons in possession, be entitled to restitution of possession of the demised premises under this chapter. For purposes of this subdivision, a person who commits or maintains a public nuisance as described in Section 3482.8 of the Civil Code, or who commits an offense described in subdivision of Section 3485 of the Civil Code, or subdivision (c) of Section 3486 of the Civil Code, or uses the premises to further the purpose of that offense shall be deemed to have committed a nuisance upon the premises.

Dogfighting and cockfighting, prostitution, unlawful weapons or ammunition offenses, and in some instances, gang activity are some examples of illegal activity, but the bulk of these actions are related to narcotics trafficking. Clearly, though, weapons offences often go hand-in-hand with selling drugs.

Of course, prevailing in an unlawful detainer action on the basis of illegal activity transpiring in a rental unit is considerably different than a non-payment of rent case — you will need proof of the illegal activity.

We were intrigued to come across this video from a news outlet that reported how one police department trained landlords to identify illicit activity taking place.

We hasten to say that before the rental property owner plays detective, the owner needs to be aware that in California, landlords are permitted to enter the dwelling only in a limited set of circumstances, and the mere suspicion that something nefarious is going on is not one of them. Inquisitive owners may find activity that raises their eye brawls, only to also find snooping violates the “implied covenant of quiet enjoyment.”

We do agree with the sentiment that landlords must be the “eyes and ears” of their rental unit. While this is the first venue in which we’ve addressed illegal conduct in units, we’ve talked about how landlords need to know what is going on in their property when it comes to unauthorized Airbnb and short-term rental arrangements. This analogy is quite fitting, because under CCP 1161(4), unauthorized subletting is a cause for this form of hybrid eviction where the tenant cannot get back in good graces with the landlord.

Although the law provides a legal basis for a landlord to terminate the tenancy by giving only three days written notice if the tenant has used the apartment for an unlawful purpose, the illegal activity must be proved in the eventuality of a trial.

Of course, the purpose of an unlawful detainer trial is not to determine the guilt or innocence of a criminal defendant. In criminal law, the accused is afforded much more rigorous protections and the State must prove guilt “beyond a reasonable doubt.”

In unlawful detainer trials, the landlord must prove more than 50% of the evidence points to illegal activity, a much lower burden of proof but nonetheless a tall order for the owner to prove the facts stated in his or her complaint. Independent witnesses, police officer testimony, and other evidence to sustain the landlord’s case should be carefully reviewed with an attorney.

Although these types of actions may seem less formal than other Superior Court trials, there are many evidentiary and procedural issues, unforgiving deadlines and specialized documentation that make it imperative to seek proper legal counsel to remove tenants that who are engaging in illegal activity.

Until recently, San Francisco was the only major Bay Area city with rent-control laws to allow landlords to pass on portions of property taxes and mortgage loans, but it no longer stands alone.

The San Francisco Board of Supervisors has passed an ordinance that blunts the ability of rental property owners to increase rents by up to 7 percent on top of the annual allowable increases, to pay down rising property taxes and debt services.

A landlord may still petition the Rent Board to pass through to tenants the costs of certain renovations to the property, which are considered capital improvements — new windows, a roof replacement, or exterior painting, for example.

In deciding whether to nix these pass-throughs, the Board of Supervisors received no shortage of input from a phalanx of tenant advocacy groups and predictably, the rhetoric against “greed-fueled displacement” and “outside speculators” was barbed, falling squarely on the side of tenant advocates.

Although debt service and property tax pass-throughs have been utilized by large corporate landlords and property management companies, they also are used by “mom-and-pop” owners who rely on the pass-throughs to keep themselves solvent. The new law, then, disproportionally impacts these smaller rental businesses owned by predominately responsible, studious landlords who are being saddled with rising costs.

The East Bay Rental Housing Association put human faces on these engaged, positive and compassionate members by profiling several private rental properties owners here, noting they are the providers of the community’s largest segment of safe, clean and affordable housing.

Back when efforts to scuttle debt service and property tax pass-throughs first captured our attention in December 2017, Charley Goss, government affairs managers for the San Francisco Apartment Association, noted that tenants facing financial hardship may apply for an exemption to a pass-through rent hike.

“You want to protect tenants who need protection with hardship petitions, but there has to be a give-and-take with the ability to recoup costs and investments in the property.”

By not engaging in this compromise and instituting a blanket prohibition against rising expenses, the city has dealt a blow not only to Goliath landlords who can absorb rising costs and huge mortgages with less discomfort, but to smaller rental businesses that are already struggling to keep afloat.

As we noted earlier, landlords can still petition the Rent Board for rent increases in other circumstances, but oftentimes, owners are uninformed about their respective rights under the law. Having made regular appearances before rent bodies throughout the Bay Area for over 20 years, Bornstein Law has become well-versed in this nuanced area of law.

As a backdrop, visit our practice page that takes a trip around rent-controlled jurisdictions, or contact our law offices for informed advice.

 

 

As proud East Bay residents, we encouragingly watched Oakland become an emerging force throughout the Bay Area. Yet Bornstein Law has always maintained that the propulsion of rent control measures has moved the needle of progress in the opposite direction and unnecessarily penalizes studious “mom and pop” landlords that are the bedrock of the community and the biggest engine of affordable housing.

Oakland City Hall disagreed with our assessment.

Oakland renters that occupy dwellings subject to Measure EE will now be entitled to relocation payments when an owner attempts to recover possession of a tenant-occupied unit for use as their primary place of residence or a relative’s use where the landlord already lives in another unit in the building. Those payments are compliments of the Uniform Residential Tenant Relocation Ordinance and apply not only to owner move-in evictions but to instances where a tenant is displaced because of the owner’s desire to effectuate a condo conversion.

A fundamental question we have been fielding from Oakland landlords is whether the new relocation rules apply to them, or if their properties are exempt. This calls for a careful review of your unique circumstances, but for the purposes of this discussion, we will assume that tenant relocation assistance is obligatory.

The effect of the ordinance is to extend relocation payments to all no-fault evictions – there were existing laws on the book that mandated relocation payments for only Ellis Act and code compliance evictions. The measure is one of many designed to make Oakland’s rent stabilization more closely mirror the policies of its sister rent-controlled cities in San Francisco and Berkeley.

How much the landlord must doll out will depend on the number of bedrooms that are in the unit.

  • $6500 for studios and 1 bedrooms
  • $8000 for 2 bedrooms
  • $9,875 for 3+ bedrooms

These are the “base rates”, if you will, but owners are required to dig deeper into the wallets if there are any tenants in the household who have low income, are elderly, disabled, or have minor children. One additional, lump sum payment of $2,500 per unit is due when any member of these vulnerable groups inhabit the dwelling.

Half of the standard relocation payment must be made when the eviction notice is served, with the balance due when the tenant vacates. The lump sum of $2,500, if applicable, must be paid within 15 days of when the tenant notifies the landlord of the tenant’s eligibility for the additional payment.

If a recalcitrant landlord does not make the required relocation payment, the tenant or their attorney cannot use the failure to pay a defense to an unlawful detainer action, but we hasten to say many other penalties await a landlord that does not comply with the law. Suffice it to say you don’t want to defend against them.

Of course, like most other matters that cross our desks, the law is cleaner on the page than in real life, with Oakland home to some of the most onerous and highly regulated rent control laws in the country. This minefield is best journeyed with the Oakland landlord lawyers at Bornstein Law.

Section 8 housing has been the subject of some controversy and conflict lately. With a good deal of misinformation floating around, widespread landlord bias against Section 8 tenancies and a potential legal minefield for landlords, we felt obligated to chime in on the housing choice voucher program.

Spawned by 42 U.S.C. §1437, Section 8 aims to assist low-income families, the elderly and disabled to afford decent, safe and sanitary housing in the private market, but like most other matters that cross our desk, the law is much cleaner on the page than in real life application.

Rental property owners seem to have a love-hate relationship with Section 8. Their participation in the program has always been a trade-off between rent security through guaranteed subsidies, shorter vacancies and lower turnover, among other perks, and the unique challenges landlords face when renting to a tenant with a Section 8 voucher. Less endearing aspects of the program include frequent inspections, a labyrinth of regulations, ceilings on amounts the government will pay, concerns over possible property damage and the collection of security deposits, to name a few.

Getting the elephant out of the room

There is a pervasive belief held by many landlords that Section 8 tenants are destructive, with no shortage of horror stories that beset owners can tell to back up their claim – we will resist the temptation to recount the details of these tales. We hasten to say that excessive wear and tear can be afflicted by any tenant, regardless of their income source.

At Bornstein Law, we always operate under the presumption that there are good tenants and bad tenants. By the same token, there are good landlords and bad landlords, so it’s our belief that no group should be painted with a broad brush.

Some landlords do not share our sentiment and have a bias against Section 8 rental applicants. We have always maintained that the wholesale exclusions of any group expose landlords to liability, and a categorical policy of refusing to rent to recipients of Section 8 vouchers is no exception.

What the law says, and where it is mute

The Fair Housing Act (FHA) a federal law, doesn’t bar landlords from discriminating based on Section 8, but some states and municipalities do, oftentimes as part of a larger contextual ban on “source of income” or “public assistance status.” We’ve noted that California defines discrimination much broader than federal law, with the envelope of protected classes constantly being pushed.

Unique protections in the Bay Area

As one of the greatest enclaves of tenant protections anywhere, it’s with little surprise that some Bay Area municipalities have led the charge in discouraging the rejection of Section 8 applicants and codifying this disfavor into law.

Berkeley is one bastion of protective measures for low-income renters – if you say “no” to a Section 8 applicant, it may be tantamount to housing discrimination, as part of Ordinance No. 7568.

The Oakland Housing Authority is dangling financial incentives to landlords who rent to Section 8 participants, but in an earlier article, we related the frustration of many Oakland landlords who experience hurdles in exiting the program – owners who want to divorce Section 8 may find that it’s until death do us part, so a careful cost/benefit analysis is recommended before opting in.

In San Francisco, a longstanding argument over a law that prevents landlords from rejecting Section 8 has been settled for now, as the First District Court of Appeal ruled in favor of the city and affirmed protections for voucher recipients. But with further appeals in the offing, it is likely that we haven’t heard the last of this.

Parting thoughts

We note that there are unique documentation and unforgiving deadlines with the termination of tenancies and rent increases with Section 8 participants and the rules must be followed to the letter.

We also stress that when there is a failed relationship, Section 8 evictions are highly nuanced. The tenant can only be evicted for repeatedly violating the lease agreement, breaking the law in connection with the property, or another “good cause,” an ambiguous term best journeyed with an attorney.

In the vast majority of the cases we handle, tenants violate the lease agreement by failing to pay rent, but there are more nebulous reasons such as violations of the occupancy standards or nuisance violations.

For proper counsel, contact our office for experienced driven, informed advice on the Section 8 program and any other orbits of your real estate business.

 

When rental relationships sour, even the most studious investment property owners can be slapped with a lawsuit that may cost tens of thousands of dollars to defend against, regardless of the merits of the case.

In our 23+ years at Bornstein Law, we have seen some reprehensible conduct by landlords that invite litigation, and the menagerie of shocking abuses inevitably finds its way into the headlines. When investment property owners house tenants in squalid firetraps, bully elderly residents, or relegate vulnerable tenants to a subterranean dungeon, such lawsuits are indefensible.

Responsible landlords who have a sound moral compass tend to look at these egregious cases and develop a misplaced sense of confidence, reasoning that because they treat their tenants well and are good stewards of the property, they will not be exposed to financial and legal liability.

In fact, most of the tenant lawsuits we encounter at Bornstein Law arise from a multitude of simple oversights, a naivety of rent control laws, or an overzealousness of landlords to take matters into their own hands with “self help” evictions or menacing behavior that serves to harass problematic tenants.

We constantly remind owners that while the rental unit is their property, it is the tenant’s home, and when a landlord crosses this nebulous line, the conditions are rife for a tenant lawsuit.

Given the potential spoils of victories, there is no shortage of enterprising tenant attorneys wanting to assist disgruntled residents in evening the score. This is especially true when the tenant is displaced, and the stakes are ratcheted up if the high-pitched tenant is in a rent-controlled jurisdiction, where rent boards are all too willing to right a perceived wrong.

We have been ambassadors for wrongful eviction coverage, noting that tenant lawsuits are proliferating throughout the Bay Area. We would be remiss not to qualify that statement with a summary of potential suits that a landlord can face in a failed tenant relationship, so we outline some common ones here.

Wrongful eviction

When a tenant claims that he or she is displaced through the improper conduct of the landlord, this can be a costly endeavor. The tenant often seeks rent differential damages, the difference between the former tenant’s monthly rent and the actual rental value of the unit. For example, let’s say a tenant who is paying $2,500 in a rent-controlled apartment is wrongfully evicted. Assuming the current monthly rental value is $4,500, there is a rent differential of $2,000. A tenant can argue that if it was not for the improper conduct of the landlord, he or she would have remained in the apartment for five years and, doing the arithmetic, the differential damages are $120,000. Other potential damages may include moving costs, statutory relocation fees, and compensation for the emotional distress of being uprooted.

Breach of covenant of quiet enjoyment

Implied in every lease is a covenant of quiet enjoyment, guaranteeing that tenants will be able to peacefully enjoy their homes, and this has been codified in Civil Code § 1927. Essentially, the tenant has a right to reasonably occupy the dwelling peacefully and without recurring disruption, but ‘quiet enjoyment’ also includes the right to exclude others from the premises, the right to clean premises, and the right to basic services such as heat and hot water. When a tenant claims that the landlord has interfered with these rights, action can be brought against the landlord for breach of the covenant of quiet enjoyment. The tenant may elect to stay in the unit and sue the landlord.

That’s not all

The tenant may also commence a lawsuit for emotional distress suffered because of a landlord’s misconduct or harassing behavior, whether the infliction of anguish was intentional or a result of negligence. In cities that have implemented rent control policies of varying degrees, landlords may also be liable for damages that occur from violations of the respective ordinances.

Triple the trouble?

Enter treble damages in certain locales that triple the damages in a punitive measure to discourage improper landlord conduct and the potential liability is amplified, not to mention attorney’s fees that a landlord can be on the hook for.

At Bornstein Law, we believe that an ounce of prevention is worth a pound of cure, and our overarching goal is to avoid or resolve conflict so that your rental business does not have to defend against lawsuits. Managing a landlord-tenant dispute is like a knot – the harder each side tries to win, the less likely the knot is untangled. We are firm believers in untangling the matter so that the conflict is not enlarged.

Of course, you can count on our advocacy in the courtroom or in front of local rent boards as a last resort. In an era when political rhetoric and tenant protections neglect the rights of property owners, you can rely on our staunch advocacy to level the playing field.

As its name implies, a tenant buy-out agreement (or in Oakland’s vernacular, a move-out agreement) is an arrangement whereby the tenant voluntarily vacates the rental unit, in exchange for compensation. Move-out agreements are particularly attractive when there are no convenient legal grounds to compel a tenant to leave or to avoid the cumbersome legal process.

The prerequisite to any agreement, of course, is to initiate a conversation and negotiate what dollar amount makes sense to both parties, but this dialog will soon be subjected to regulations that the city passed on March 20th, which adds to Chapter 8.22 of the Oakland Municipal Code.

Free speech assailed

A landlord’s prerogative to approach tenants with the offer of buying them out of the residence is constitutionally protected free speech under the First Amendment, a right that after scrutiny, has been upheld by courts.

It is well grounded that private parties can enter into a voluntary agreement and that agreement is legally enforceable if certain elements are met, namely offer acceptance and consideration. A properly negotiated tenant move-out agreement passes the muster.

While it is a rarity for Big Brother to have a say in covenants that are forged between consenting parties, Oakland has joined San Francisco in an exclusive club that regulates buyout negotiations between landlords and tenants. Just as courts have affirmed a landlord’s right to free speech, so too, has it upheld a San Francisco ordinance that constrains this speech.

By passing the Tenant Move Out Agreement Ordinance, Oakland ushered in a sweeping law that creates disclosure and reporting stipulations that must be issued before a landlord can even broach the topic of a buyout.

So as to let owners know that Oakland is serious about the ordinance, the law imposes hefty penalties for landlords that take short cuts by ignoring the procedural requirements and starting an informal chat with a tenant on their own.

The ordinance dictates the choreographed procedures that rental property owners must follow and adds teeth to the measure, and here is the Reader’s Digest version. Owners must:

  • Provide tenant with a written pre-negotiation disclosure on a form prescribed by the City.
  • Inform tenants of their right to consult with a lawyer.
  • Provide tenants with a statement allowing them to rescind the move-out agreement for up to 25 days after execution.

We’ve uploaded the long-form version of the ordinance on our website. Download it here…

These ordinance procedures only apply if an owner and tenant are negotiating a tenant buyout. This move-out ordinance should not be confused with owner move-in relocation fees. For more information on owner-move ins and relocation fees, consult our earlier article on this subject.

Learn more about owner move-in relocation fees →

Mimicking San Francisco

We notice stark similarities between Oakland’s ordinance and that of San Francisco’s, with an exception that jumps off the page – if all of the T’s are crossed and the tenant enters into a proper move-out agreement, only to later change their mind, Oakland residents have 25 days to rescind the agreement, while San Franciscans are afforded a full 45 days to make an about face.

Our take

Bornstein Law laments the passage of the ordinance because it adds new layers of red tape to an already obstructive process that burdens small rental property owners. The new restrictions in communication drive a deeper wedge between landlords and tenants, which will likely result in clogging the court system with cases that could be averted if open communication were not trampled upon.

More fluid dialog, we believe, would increase the number of instances of “win-win” situations, where both parties would negotiate mutually agreeable terms. Being dragged into court is a lose-lose situation for landlords and tenants alike but seems inevitable for a city whose policies have trudged ever closer to the heavy-handed rent control policies of San Francisco.

Constraining communication between consenting parties all but guarantees a pathway to the costly judicial system that adds further expenses to property owners already saddled with high costs of doing business and may very well lead to evictions that would be avoided if there were no stumbling blocks to two parties coming to the table.

Buyout agreements are nothing to be trifled with

Structuring a tenant buyout agreement was already a legally consequential undertaking, but Oakland’s Tenant Move-Out Ordinance adds new layers of complexity that must be journeyed with an attorney versed in landlord-tenant law.

 

 

Airbnb may have won many people’s choice awards, but it hasn’t gotten many points with its hometown. Now, the city seems to have tamed the beast and emerged as the undisputed enforcer of the modern-day iteration of the temporary flop. San Francisco’s newly fanged Office of Short-Term Rentals no longer has to plea with billion-dollar platforms to remove hosts that flout the rules – they merely tell them to remove these bad actors.

In a nanosecond, thousands of straggling, unregistered Airbnb hosts got their listings deactivated, nixing nearly half of Airbnb’s listings overnight. That’s because when the clock struck midnight on Wednesday, January 17, a new law kicked in requiring hosts to register their property went into effect.

In that moment of reckoning, the rules become clearer. A short-term rental host that shows compliance with San Francisco’s laws and earns a license issued by the city is legal, and those who don’t follow the law are illegal and excommunicated – not open for debate or discussion. As part of the long-promised crackdown, 2,000 units were pulled off the site last Tuesday alone, ending an era when not having a license was no bar to ranking in cash.

The data is fresh and we are still analyzing it, but it appears that at least 6,000 short-term rental listings were removed through this process…. For Airbnb alone, around 4,760 listings were removed.”

~ Kevin Guy, director of S.F’s Office of Short Term Rentals

Joe Eskenazi has a riveting behind-the-scenes glance of the final countdown to the Airbnb registration at the Office of Short Term rentals.

San Francisco stands alone in putting such a dent in Airbnb’s listings, but who, exactly, is responsible for this dramatic turnaround? Their capitulation to demands is not owed to Airbnb itself or the city attorney, but to an “only in San Francisco coalition” that united odd bellows to organize, run campaigns, educate, and eventually support the Goliath to quit posting illegal listings, submits this article.

Regardless of the forces behind Airbnb’s about face, Bornstein Law has seen this day long in the making and feel somewhat validated by our predictions very early on in the parade that the law would catch up with technology.

Airbnb wins a lawsuit that threatened its entire business model

In a victory for profiteering renters that improperly sublet their units for extra cash, a federal judge has tossed out a lawsuit that sought to crack down on hosts using the Airbnb website without landlord permission. Denver-based Aimco took the fight to Airbnb in dual lawsuits in Florida and California, claiming that Airbnb was deliberately incentivizing people to break their leases. A judge rejected this argument, ruling that Airbnb was not responsible for any havoc that was wrecked by guests. That according to the Communications Decency Act, a federal law that gives internet companies immunity for content that users or random people post on their sites.

The takeaway for landlords? Don’t wear blinders, and some personal sleuthing may be in order to determine what is going on in their rental units. Owners can and must take corrective action if improper subletting is detected.

If history is any indication, we’re sure that it won’t be too long before Airbnb graces itself in the news again, but you can count on the landlord lawyers of Bornstein Law to help stay in the know.

 

At Bornstein Law, we marvel at California’s scenery and are the first to recognize that all of us must be good stewards of the environment, but we also tout new construction as the most sensible solution to the housing deficit. We think that enviros and YIMBYs that say “build baby, build” can not only co-exist but experience synergy in their mutual goals.

In a January Facebook post, we noted that the California Environmental Quality Act may be aggravating the state’s housing crisis and that it may be time to review a 1970 law that requires public agencies to put a finger on the environmental impacts of projects within their jurisdiction.

However well-intentioned, CEQA has become a tool to deny, obstruct or delay residential construction, irrespective of whether there are significant or legitimate environmental concerns. With the housing crisis upon us, the climate seems ripe to re-examine the legislation and so it was only a matter of time before legislators acted to restore a sense of equilibrium between environmental protections and the need for increased housing in the 21st century.

Sen. Steve Glazer took the charge by introducing SB 1340 and SB 1341, bills that recognize that the frivolous lawsuits will halt new affordable housing developments in the Bay Area and beyond.

Glazer takes a two-pronged approach. SB 1340 attempts to break the logjam of litigation – courts would have 270 days to rule on lawsuits that challenge housing projects. Simultaneously, SB 1341 would add a level of transparency to actions by requiring plaintiffs that initiate CEQA-based lawsuits to come out of the shadows and disclose their identities.

The latter point is not that radical of a concept – it is helpful to know exactly who you are being sued by, but a departure from the status quo of anonymous litigants. SB 1341 would also eliminate the wasteful duplication of multiple lawsuits lodged against individual projects that face similar claims.

While Glazer’s pair of bills are flagship pieces of legislation that stand to knock down the walls of CEQA, there are other measures incubating to reform the way CEQA lawsuits are handled, and we will cover these in future posts.

The new face of YIMBYism

Environmentalists would ordinarily be up in arms over any initiatives to curtail protections, but it seems that the torch has passed to a new generation.

As we noted in an earlier article, enviros are joining the ranks of the YIMBY movement, as a growing throng of progressives and Millennials are recognizing that more homes are good and denser housing would reduce the carbon footprint.

Bornstein Law applauds reasonable efforts to remove barriers to much-needed construction and even as we attempt to help shape the larger debate on housing policy, our landlord attorneys are ready to help investment property owners avoid friction within their rental units and manage landlord-tenant relationships – contact our office today.

 

We came across an intriguing case of a couple that sought court intervention to force their 30-year old son to move out after overwhelming his welcome. After repeated entreaties from his parents to leave their home and refusing money to find new living arrangements, Michael Rotondo was adamant about staying until a judge gave him the boot.

The case gathered wide attention and on Wednesday, even became the butt of jokes on the Jimmy Fallon show. Though the displaced Mr. Rotondo was an easy target after being belligerent in court and giving an animated interview with the media, rest assured this is not a humorous subject for a great number of property owners whose residences are being manipulated by adult children, friends or caregivers.

It’s an unfortunate dilemma when owners invite a trusted individual into their residence, perhaps out of a sense of obligation, only for the unappreciative guest to exert an inordinate amount of control over the dwelling, refuse to leave when asked to and worse yet, take advantage of the owner.

Largely overlooked in the media buzz and late-night banter is Justice Donald Greenwood’s instruction to an adult protective services agency to investigate the case further. That body is responsible for overseeing the suspected abuse, neglect or exploitation of older adults and adults with disabilities. The Justice’s concern bespeaks alarming abuse of vulnerable property owners that 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.

The law provides an answer to regain control

When an owner opens the door and invites someone into their residence, they essentially create a license to occupy the premises. It doesn’t mean their guest (in legalese terms, the licensee) can stay indefinitely.

If the owner invites someone over to dinner, their guest has the license to stay until the meal ends or until such time the owner asks them to leave. Clearly, the dinner guest cannot maintain possession of the unit and start “camping out” without the owner’s permission. This simple analogy is instructive – when a tenancy was never established, the owner can ask whoever occupies their premises to exit.

Although this is readily understood in most occupancy arrangements, some overly reliant, opportunistic or predatory residents insist on staying planted. When these incalcitrant guests cannot be nudged out of the residence, the owner can turn to the courts to commence a forcible detainer action.

Although a forcible detainer action is a different legal creature from an unlawful detainer action, it is similar in many respects and the end goal is for a landlord to regain possession of their unit. Of course, efforts to remove any resident brings into focus many legal issues best journeyed with an attorney.

When family members or other confidants are the subjects of a contemplated eviction, it is even more vital to seek proper counsel removed from the emotional fray.

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Immigration was a divisive topic in 2017, but California has been the capital of democratic resistance in the Trump era, making a concerted effort to protect immigrants from the rhetoric and anticipated changes coming down the pike.

One example is the passage of AB 291, or the Immigrant Tenant Protection Act, which prevents rental housing providers from using an individual’s immigration status against tenants.

Under existing California Law, it is not permissible for landlords to inquire as to a tenant’s immigration status, but AB 291 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.

Watch David Chiu (D-San Francisco make his case for the Bill on the Assembly floor.

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.

We have always acknowledged the crucially important and difficult role of teachers, so Bornstein Law was encouraged to see that their toil in their classroom is being increasingly rewarded with a better prospect of home ownership “If you work at a school, we’ll help you buy a home”, is the tagline for Landed, a San-Francisco-based startup that assists teachers with their down payments. It’s a nice uplift, but with its services reaching 10,000 educators in eight school districts, it is a drop in the bucket.

In San Francisco and throughout the Bay Area, cash-strapped educators have struggled to keep pace with rising housing costs, and municipalities have heard their struggles. San Francisco has recognized that 20 percent down payments are hard to come by on a teacher’s salary, leaving many no choice but to rent indefinitely, endure grueling commutes, or seek greener pastures in cheaper school districts, with young minds hanging in the balance.

In recognizing the plight of these educators, along with the upheaval of students being implanted during the school year or severing ties with a displaced school employee, the San Francisco Board of Supervisors unanimously approved Ordinance No. 55-16. In 2016, the ordinance catapulted school staff to a newly protected class, prohibiting their displacement through a no-fault eviction during the academic year.

The ordinance lasted all five months before Judge Ronald Quidachay sided with the San Francisco Apartment Association and the Small Property Owners of San Francisco Institute. These groups sought judicial review of the ordinance, claiming that the law “is facially invalid because it is preempted by State laws governing landlord-tenant notification procedures and timetables governing the parties’ respective rights and obligations, including the timing of the right to terminate tenancies where the landlord has otherwise complied with all state and local substantive requirements necessary to terminate the tenancy.”

In plain English, Judge Ronald Quidachay agreed that state laws on evictions and property rights prevented cities from passing their own laws covering evictions and property rights.

The First District Court of Appeal in San Francisco took issue with this logic and on Wednesday, said that the city acted within its authority. The appellate court asserted the city’s ability to provide a permissible limitation upon a landlord’s property rights, without meddling with the overall right to evict under state law. The cerebral types can read the full case law here.

Perhaps with the exception of  Social Studies teachers that are fascinated by the abstract concept of preemption, the takeaway for jubilant teachers is that if a landlord attempts to evict them through no fault of their own, the eviction has to wait till the summer.

It begs the question: what takeaways are there for landlords? The lawyer for the SFAA and Small Property Owners of San Francisco offers his premonition.

“For property owners in San Francisco, what this ruling means, if upheld, is that if a property owner needs to access a piece of property to make repairs — let’s say a boiler breaks in November — they won’t have any way to get access until the summer months…. It’s a problem that the city created. We hope the Supreme Court will consider the importance of the issue.”, attorney Andrew Zacks says.

Zacks vows to appeal to the state Supreme Court and given the constitutional gravity of the matter – a clash between local and state law – the matter is almost certain to be heard. As always, you can count on Bornstein Law to keep you abreast of the developments.

To which we might add that in today’s climate, no-fault evictions are met with increased scrutiny, regulations, and tenant lawsuits, making it more imperative for landlords to consult with an attorney when they are contemplated.

At Bornstein Law, we have children (Daniel has five), and we love teachers. We also love protecting the rights of landlords. Our job is to not pass judgment,  but to protect the rights of clients no matter where they fall on the spectrum.