Bornstein Law, Author at Bay Area Housing Law

Airbnb & Short-Term Rentals

Danny Glover Crowned Ambassador of Airbnb Diversity

As pioneers in the ever-evolving laws relating to short term rental agreements, we were intrigued by the new role Danny Glover was cast into. It’s not a sequel to Lethal Weapon, but a major role in the PR campaign of Airbnb. The short term rental Goliath needs some help, for sure.

Airbnb has taken a backlash lately over diversity issues, and it wasn’t so long ago that it percolated to the national news when a host sent a text message to a prospective guest denying access to her rental because she was Asian, a story we chimed in on here.

The actor, film director, and political activist seems to be the perfect figurehead to champion a culture of safety and diversity. Known not only for his world-renowned films and television programs, Danny Glover is also for “progressiveness throughout America and the world knows Mr. Glover as a steadfast advocate for social justice”, according to Janave Ingram, director of partnerships for Airbnb.

Tenant Screening

Tenants Concealing a Checkered Past

Clearly, tenant screening is one of the most important aspects of your rental business, but today’s climate makes this essential task more difficult as it becomes increasingly easier for prospective tenants to conceal any blemishes in their past.

At Bornstein Law, we understand that the past doesn’t equal the future, and we are all about second chances. Yet we are also about transparency and equipping rental property owners with the information they need to make informed decisions regarding their selection of tenants.

Let’s talk about a couple impediments to getting a clear glimpse into a tenant’s history, starting with the three major credit bureaus’ joint National Consumer Assistance Plan, which will eliminate the appearance of certain “red flags” on the prospective tenant’s credit report.

Rolled out over a 3-year period, NCAP established, among other things, new standards for personal identifying information, or PMI, for a record to appear on a credit report. These identifying factors include a consumer’s name, addresses, Social Security Number and Date of Birth. Experian estimated that about 96% of civil judgment data and as much as 50% of tax lien data would not be discernable from the tenant’s credit report.

TransUnion chimed in and though it stopped short of giving hard and fast numbers, claimed that there would be a “significant change” to civil judgment data, and at least 60% of public record tax lien data would evaporate from its database. The translation for landlords: The presence of a monetary eviction may not be readily ascertainable from the applicant’s credit report.

As a sidebar, we’ll say that depending on the credit scoring model used, some tenant applicants that are saddled with medical debt could potentially have their score boosted and enter the pool of eligible rental candidates, but we don’t want to get bogged down into the finite details of NCAP, merely forewarn landlords that credit reporting may not be a total portrayal of the incoming tenant’s history.

State law has an open mind, as well.

In the following video, Daniel Bornstein alludes to AB 2819, which will impact a landlord’s ability to obtain an applicant’s prior unlawful detainer (UD) history. The bill essentially seals an applicant’s prior unlawful detainer history under certain circumstances.

Another footnote is that one consequence of the law, in our view, is that it disincentives unlawful detainer defendants to speedily settle the case, as frivolous motions and other stalling tactics can ensure the judgment does not enter the public record.

We can’t help but draw a loose parallel to AB 1008, dubbed the “Fair Chance Hiring Bill” or “Ban The Box”. This Bill places severe restrictions on employers to pry into a job applicant’s criminal history, concerning for the rental housing industry because property management employees usually have close access to a tenant’s personal belongings and their children.

Rightly or wrongly, it seems that there is a forgiving culture that says we are all human, and that certain mistakes should be overlooked. Our job is not to evaluate people, but to offer informed and pragmatic advice in developing a framework for you to make your own calls.

In parting thoughts, do your due diligence when vetting tenants and employees, for that matter, but do so smartly, in compliance with the law. Don’t be over-exuberant or cross the nebulous line into discrimination.

We’ve only scratched the surface here and will continue our thread on a myriad of tenant screening issues in the near future — follow us on Facebook to stay in the know.

Landlord-Tenant Law

Permissible Reasons to Enter the Rental Unit

California recognizes both the tenant’s right to quiet enjoyment of the premises and the owner’s right to access the unit under limited circumstances. Translation: once the keys are handed over, the law is tilted slightly towards the tenant. With that in mind, landlords need to be vigilant when they consider entering their units and resist the temptation to “just show up”.

Civil code 1954 spells out the permissible reasons a landlord can enter the premises.

In the case of an emergency;
To make necessary or agreed on repairs, decorations, alterations, or improvements;
To supply necessary or agreed services;
To show the dwelling unit to prospective or actual purchasers, mortgagees, residents, workers, or contractors;
To make an inspection pursuant to subdivision (f) of Section 1950.5 of the California Civil Code, if requested by the tenant;
To repair, test, and/or maintain smoke or carbon monoxide detectors as allowed by Health and Safety Code Section 13113.7 and 13260;
To inspect a waterbed for compliance with the installation requirements of Civil Code 1940.5;
When the resident has abandoned or surrendered the premises; or
Pursuant to a court order

Even when there is a permissible purpose to enter, as delineated above, the time to enter the unit may only be within normal business hours. Exceptions are made in an emergency and when the resident consents to entry outside of normal business hours. A landlord could also enter the residence when the resident has abandoned or surrendered the premises, but this goes beyond the scope of this article.

When a landlord desires to enter the unit for an acceptable purpose, the tenant must be given reasonable notice. 24 hours written notice is presumed reasonable, but every case is different. Moreover, there are certain circumstances when oral notice is sufficient, but the most prudent step to protect your rental business is to first consult with an attorney, as there are many nuances.

If the purpose of entry is to inspect the unit prior to the termination of the tenancy as required by Civil Code Section 1950.5(f), the owner/agent is required to provide at least 48-hours written notice. The resident and the owner/agent may agree to waive the written notice.

As we’ve noted in other venues, tenant lawsuits are proliferating throughout the Bay Area. Amid the flurry of litigation by residents and enterprising tenant lawyers, it’s important that all requirements are followed to the letter.

We caution that resident managers are an agent of the owner, and so proper procedures must also be followed by them. All too often, we’ve seen landlords get into trouble because of the actions of a manager who happens to have keys to an apartment to do some sort of project and abuses this access, possibly catching a resident in an embarrassing moment. These unauthorized entries are oftentimes seemingly innocuous, like routine maintenance, but the law makes no distinction — infringing on a tenant’s privacy rights cannot be explained away.

We have to get the elephant out of the room and speak to inquisitive landlords that want to periodically check up on their residence. Under California law, landlords cannot enter rental premises only for the purpose of policing the unit. One gambit landlords have used is invoking Health and Safety Code Section 13113.7 and 13260, which allows the repair, testing, or maintenance of smoke or carbon monoxide detectors, but we urge caution in today’s environment where tenant advocates have been just as inventive in suing landlords.