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Just Cause Eviction

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

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

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

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

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

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

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

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

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

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

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

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

~ CAA

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

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

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

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

 

 

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

Under the current law surrounding unlawful detainer actions:

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

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

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

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

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

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

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

 

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.

 

Habitability Issues Can Tank A Just Cause Eviction Action

Failing to provide a safe, sanitary and secure residence is an affirmative defense a tenant or their counsel can raise to contest rent obligations or just cause evictions.

When a tenant does not timely pay their rent, landlords can serve a three-day notice to pay rent or quit and if that is to no avail, commence an unlawful detainer action. Yet prevailing in what would initially appear as a clear-cut case is not guaranteed, if procedural notices are not followed to the letter, or if the rental unit is not code compliant.

It’s not uncommon for non-paying residents (especially if they are represented by a tenant attorney) to use the affirmative defense that the physical conditions and characteristics of the unit rendered them unfit or unsafe for human occupancy and habitation. Rental housing providers are obligated to provide livable conditions within their units and when they fail to do so, tenants can use the landlord’s neglect to contest an unlawful detainer for nonpayment of rent.

The landlord’s duty to provide a habitable dwelling is known as the warranty of habitability and is implied in every residential lease agreement throughout California. Adequate and safe heating, effective weatherproofing, plumbing and gas facilities, maintained stairs and common areas, hot and cold running water, and rodent, vermin-free common areas are just some of the many responsibilities that if breached, will compromise your unlawful detainer action.

What conditions create an untenantable dwelling can be spelled out in California Civil Code 1941.1, as well as local ordinances and building codes that have their own set of provisions. For example, San Francisco has their own set of rules that limit the number of occupants per room.

Landlords need to know everything regarding the maintenance trade, from floor to ceiling and everything in between, and if they don’t, they should hire someone that is able to navigate the myriad of codes, whether a licensed real estate broker, property management company or attorney. It’s been said that ignorance is no excuse for breaking the law and so code enforcement and courts seem to show little empathy for rental property owners that do not fulfill their responsibilities.

The takeaway? Before you serve a three-day notice to pay rent or quit, make sure there are no habitability concerns. Talk to your tenant and ask questions concerning the property’s condition, do so often, and document the condition so that the tenant cannot file an answer with the Court claiming that rent was withheld because the unit is uninhabitable due to a leaking roof, broken pipes, or any number of other issues that render the property unlivable. The landlord can claim they had no knowledge of the underlying defect, but in California, the landlord is imputed to have knowledge of major defects in their rental property.

So long as your units are livable, you may be able to breathe a sigh of relief.

Having defended many claims that allege habitability, we can attest that this claim is oftentimes without merit, and defects, whether real, perceived, reported or unreported, oftentimes do not rise to a level that justifies the nonpayment of rent, or staves off an eviction. By using an affirmative defense, the tenant has the burden of proof to show that there is a substantial breach of the warranty of habitability, evidenced by a substantial defect.

In a seminal case, Green v. Superior Court, the California Supreme Court defined “habitable” as a rental unit that is fit for occupation by human beings and that it substantially complies with state and local building and health codes that materially affect tenants’ health and safety. The Court drew a line between essentials and “amenities”, observing that landlords are under no obligation to provide the most aesthetically pleasing and pristine rental unit, and makes allowances for cosmetic defects and insubstantial departures from codes.

Of course, there will be competing narratives, one from the tenant or their counsel, and one from the landlord’s attorney, and whether any defects rise to the magnitude of inhabitability will be decided on a case-by-case basis. Suffice it to say that being represented by a firm that specializes in managing landlord-tenant disputes will improve your odds of prevailing.

Tenants have their own housekeeping responsibilities and it’s well established that the tenant’s own wanton neglect or damage, or failure to practice “ordinary care” will be frowned upon by the court and compromise the habitability defense. This, too, is a battle of narratives that is best articulated by the landlord lawyers of Bornstein Law.

Using habitability as a defense against an unlawful detainer action is more often than not, a shot in the dark for the tenant, perhaps a gambit to buy time or entice the landlord to enter into a settlement. But with proper counsel, landlords can debunk false claims and cast the circumstances in the most favorable light.