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Landlord-Tenant Law

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

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

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

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

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

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

Is the relative a tenant or licensee?

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

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

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

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

Forcible Detainers

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

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

The case bespeaks alarming abuse of vulnerable property owners 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.

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

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

Potential pitfalls

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

Try to work it out?

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

Informed advice removed from the emotional fray

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

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

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

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

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

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

Squatter rights difficult to be abridged

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

State law is not mute on this subject

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

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

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

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

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

An organized effort

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

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

A legal remedy exists

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

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

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

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

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

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

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

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

Tenant attorneys can muddle the case

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

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

 

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. 

 

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. 

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.

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.

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.

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.

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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We’ve all seen and heard the inspirational home improvement commercials about doing and saving. It goes something like, “we’ve got this, look what we’ve done, sit back and enjoy the view.” But what if the alterations are made by a tenant without the permission of the owner, and the landlord does not like the view?

Of course, there are studious tenants who wish to make their abode their home and attempt to make cosmetic changes and improvements such as replacing carpeting, changing out light fixtures, painting the walls, swapping out appliances, and the like. Often, there is an amicable relationship in place and when the tenant asks the landlord for permission to make improvements, it is granted.

Yet we have seen countless acts of tenants taking it upon themselves to make major reconfigurations to a rental unit, and this becomes problematic. It is not rare for landlords to discover the kitchen has been renovated, or a new living quarters has been erected in the garage.

With a housing shortage upon us, we’ve seen an alarming number of cases where inventive tenants make material alterations to carve out new living environments for housemates. These material changes expose the landlord to significant liability, especially when the work is unpermitted and the city finds out about it.

Most leases contain, and should contain, a provision that expressly prohibits alterations to the premises without the prior written consent of the owner. When an illicit alteration is discovered, it should be documented by taking photographs. Armed with evidence of an alteration, a notice can be served upon the tenant to restore the unit back to its original condition, at the tenant’s own expense. If the tenant does not remove the alteration, the landlord can commence an unlawful detainer action.

As sticklers for documentation, Bornstein Law can always review your written lease agreement to ensure there is in fact a provision that prohibits tenants from making alterations without the owner’s consent. All too often, there is no such protection because the lease is deficient.

In the absence of a written prohibition against alterations, the tenant may be able to make changes without the landlord’s permission, though it is still illegal to do anything that wantonly or willfully destroys, defaces or damages the property.

Another common alteration we encounter is the unauthorized changing of locks, a topic we broached in this post.

If you discover illicit alterations, the personal and financial liability that can ensue demands immediate action that can be done properly with the landlord lawyers at Bornstein Law.

Related post: Tenants improperly using commercial space for residential use

 

Since its debut on 60 Minutes, we wanted to circle back to the “leaning tower” of San Francisco to see if any progress has been made in the luxury residential high-rise that has sunk 17 inches and tilted 14 inches since it was completed in 2008.

City inspectors say it’s safe for occupation, but residents aren’t so encouraged. The saga is responsible for an exodus from the luxury high-rise and legal bills that can rise 58-stories high. Now, Business Insider reports that the well-heeled residents are taking a haircut, selling their embattled condos for losses in the millions.

Engineers have not offered a better prognosis for the Millennium Tower, which is expected to sink at the rate of roughly one-inch per year.

There may be a fix in the works, we’re told, as a phalanx of engineers explore drilling 50 to 100 new piles 200 feet down to bedrock from the building’s basement. After a litany of proposed solutions, though, skeptics are not buying it.

At Bornstein Law, we have been more than casual observers of this towering debacle. As we noted in a news release, we successfully represented the owners of the Millennium Tower in an eviction suit. The tenant refused to pay rent for six months, claiming the building’s sinking made it uninhabitable and breached the rental agreement. The tenant’s attorney argued that “the leaning and sinking of the building is a structural issue in breach of the implied warranty of habitability.”

The court rejected this argument, and we were able to win a monetary judgment of $42,716 for the client and allow them to take back possession of the apartment.

Whether in the rows of skyscrapers that have lined San Francisco streets, in Section 8 housing, the backyards of ‘granny flats’ and everything in between, you can count on our advocacy for the rights of property owners.

Perhaps one of the most thankless and trying, but necessary duties of a landlord is evicting tenants when the tenant violates one of the covenants of the lease.

At the risk of oversimplification, the eviction process involves serving the tenant with a notice, waiting for the notice to end, and filing an unlawful detainer action if the tenant fails to do what the notice asks. But like so many other areas of law, meticulous attention to detail is needed to ensure there are no procedural missteps.

Here are five ways that you are likely to use an unlawful detainer action.

Improper rent demand: One sure kink to a successful unlawful detainer action is demanding a higher amount of rent than is actually (and legally) due.

Drafting an improper 3-day notice to pay rent or quit: A recurring theme for our practice at Bornstein law is the epidemic of stale, outdated and bad documentation. Worse yet, some landlords have asked for late fees, which is prohibited under California law.

Failure to serve 3-day notice correctly: Assuming that the notice is otherwise proper, it must be served to the tenant correctly. Regardless of the merits of the case or the legality of the documentation, the 3-day notice must be served in accordance with the law.

Failure to correct habitability issues: Even if all other requirements are met, the tenant can claim that the unit is inhabitable. If the landlord fails to rectify any habitability issues of the premises, it will tank their ability to be successful in an eviction.

Mistakenly depositing a future rent payment: This is a cardinal sin for landlords, and by doing this, the landlord waives their right to proceed with the eviction.

As always, we are happy to engage and answer any questions — contact Bornstein Law to protect your real estate investments.

The Chief Economist for Redfin predicts that rising prices, an uptick in rates, and higher property taxes will lead to more roommate arrangements due to a lack of affordability. Real estate startups like Nesterly and CoBuy have rode the wave of non-traditional home-buying and cohabitation by fostering technology to play matchmaker between housemates, some of whom are odd bedfellows. Read all of Redfin’s predictions in this report.

Given the necessity for many tenants in the Bay Area to find roommates to absorb some of the highest housing costs in the nation, landlords and real estate professionals should be aware of the law surrounding roommates.

In earlier posts on Airbnb and other subletting arrangements, we advised rental property owners they need to know who is occupying their premises. Some personal sleuthing may be advisable, to ascertain what is going on in your units.

In many cases, roommates can’t co-exist and this leads to a revolving door of swapping roommates, creating confusion as to who is responsible for what, when rent can be raised, and how to legally evict tenants/occupants. The stakes are particularly high and the subject matter more complex in rent controlled jurisdictions. First, let’s define a couple terms.

In California, roommate arrangements can be boiled down to two types of arrangements when the landlord does not live in the rental unit.

  1. Roommates as Co-Tenants: A co-tenant arrangement occurs when all roommates have a contractual relationship with the landlord. Both co-tenants directly and individually pay rent to the landlord.
  2. 2. Roommate as Subtenant: Subletting means that one tenant has a contractual arrangement with the landlord, hence the primary tenant is referred to as the “Master tenant”. After entering into a binding agreement with the landlord, the master tenant contracts with another person, a roommate or housemate called the Subtenant, who is responsible for paying rent to the master tenant. The master tenant retains all rights and obligations under the “master” lease, which includes, naturally, paying rent to the landlord.

Co-tenants cannot be evicted without “just cause”, meaning they can be evicted only for certain reasons, such as non-payment of rent or other violations of the lease terms. A co-tenant can, however, evict a subtenant. A subtenant is impotent and cannot evict anyone, while a landlord can evict all tenants from the premises, with caveats.

While the subtenant has no direct relationship with the landlord (the master tenant is essentially the subtenant’s landlord), we must caution that you can inadvertently establish a relationship with the subtenant by taking rent money. In other words, roommates who initially occupied your rental unit as a subtenant may be catapulted to the status of a co-tenant by your acceptance of rent, even if they are not named in the lease. This is a cardinal sin we see all too often at Bornstein Law.

Another unexpected and harrowing surprise landlords can face is a long-term guest that becomes a tenant because they stayed in the rental unit for 30 days or more, regardless if they entered into any formal tenancy agreement. Don’t wear blinders — if there is a guest that is staying in a unit for any prolonged period, you have a new tenant under the law, and if they do not leave on their own accord, they are entitled to due process when they are no longer welcome, meaning the guest-turned-tenant needs to be provided written notice to vacate.

Assignment of the lease

An assignment is an agreement to transfer the lease. It encompasses the transfer of rights held by one party — the assignor — to another party — the assignee. A common example is when a property is sold and the landlord assigns the lease to the new owner. In similar fashion, a tenant might assign his or her lease to a new tenant or occupant, which then begins the game of musical chairs and creates a quagmire where the rental property owner does not know who is living in their units.

Fortunately, a properly written lease may prohibit or restrict assignment, subletting and other changes in occupancy. If there is no written lease, or if the lease does not adequately address these issues, you have a problem that needs to be rectified with the guidance of a real estate attorney.

As shifting demographics and alternative living arrangements become the norm, there will be many blurred legal relationships between multiple parties, but Bornstein Law can provide clarity and restore order in Housing 2.0.

When resident managers feel aggrieved, the current climate is rife for costly litigation. These onsite managers are becoming more sophisticated in maneuvering the legal system to take advantage of wrongs inflicted by their employers, aided by no shortage of enterprising attorneys.

A throng of lawyers are all to willing to handle resident manager complaints on a contingency basis, taking a percentage of the recovery at the tail end of an action, as well as attorney’s fees tacked on to the wages and liquidated damages recovered.

Translation for the rental housing industry: the burden of paying the disgruntled resident manager’s legal bills is borne by the landlord or property management company.

We noted in an earlier article that the Private Attorneys General Act (PAGA), codified in California Labor Code Sections 2698 through 2699.5, essentially creates a class action lawsuit by empowering the resident manager to not only sue his or her employer to recover unpaid wages, but to enlarge the scope of their lawsuit by acting on behalf of other managers that are employed in other buildings. With statewide wage, hour and rent limitation laws that have been ushered into 2018, we wanted to continue this thread of making sure that your resident manager relationships are compliant with the shifting lay of the land.

As the law makes a distinction in the size of the workforce, for purposes of this discussion, we’ll focus on rental businesses with less than 26 employees.

Where do property managers fit in?

California Code of Regulations Title 25, Section 42 makes it incumbent for owners to have a live-in manager if a building has 16 or more units. This person is defined as a “manager, janitor, housekeeper, or other responsible person”. These caretakers are considered employees in the eyes of the law, not independent contractors, and entitled to the prevailing minimum wage.

Although California’s minimum wage is $10.50 per hour, several Bay Area locales have raised the bar. San Francisco, Oakland, Berkeley, and Emeryville, among other municipalities, have set their own minimum wages that rental housing providers must be aware of.

In addition to California’s Labor Code, the Industrial Welfare Commission peels the onion deeper with a number of “Wage Orders” that govern employment in specific industries and occupations. One such order — enumerated as Wage Order №5 — regulates wages, hours and working conditions in the public housekeeping industry, which includes “apartment houses” and thus, is germane to resident managers of apartment complexes. The Order mandates employers to pay the minimum wage to a resident manager for every hour worked, exempting time the manager spends on personal tasks outside the purview of the assigned duties.

Since resident managers are employees, they are afforded full protections that include the ability to make a claim for an amount equal to the wages unlawfully unpaid, plus interest, if the landlord does not pay the minimum wage. Labor Code section 1194.2. This is just one of the perilous consequences that may await owners that do not dutifully pay their property’s overseers.

Parting thoughts

We’ve only scratched the surface here, not giving justice to the myriad of other complicated issues that can color the relationship with resident managers. Managing relationships in Bay Area rent controlled jurisdictions raise unique concerns that require the guidance of an attorney to carefully navigate this minefield.

No matter your unique circumstances, documentation and bookkeeping is the key to staying compliant, and the hallmarks of our service at Bornstein Law.

Our conclusion? Rather than penalizing landlords, we should come together to focus on solutions. Of course, that’s easier said than done. Our area is world-renowned for its innovation. If we conjure up the same level of creativity, perhaps we can finally address the endemic problems.

When city leadership, government leaders, and nonprofits get creative and serious about tackling the issues, solutions can take shape. Certainly, there is no silver bullet to solve one of today’s trickiest urban issues, and it requires a holistic approach. This involves inclusionary zoning, removing parking minimums, changing building codes to make it easier to rehab older buildings and new funding models.

Fortunately, we can draw upon the examples of other cities such as Denver, Cleveland, Minneapolis, Philadelphia, and Salt Lake City. It’s also instructive to study our neighbors to the North – although affordable housing is a local issue, Canada’s well-conceived national policy and funding has made a huge difference there.

This article takes a sampling of other cities to find out what creative solutions they are employing to address the very same problems we are facing in the Bay Area.

Finding creative solutions to landlord-tenant disputes is what the San Francisco real estate attorneys at Bornstein Law have been doing for over 23 years and it is with the same win-win and outside-the-box mentality that we approach the aggregate housing issues that affect our region. But all parties should lower the temperature of the debate and realize that this is not a zero-sum game.

In that venue, we noted that while the law is clear that a rental property need not be a palace, it must be safe, sanitary and secure. Apparently, Ms. Mendoza and Mr. Paredes were not kept in the loop or did not heed our strong advice.

Sometimes, there is a blur between what is legal and what is right, but there is no quandary here. Both the ethical and legal breaches in the case at hand are atrocious. Although this story represents an extreme case of depravity, it should put rental property owners on notice that they have an obligation to provide livable quarters for their tenants. Failure to do so is both immoral and illegal.

Although the housing conditions on Mission Street, like that of the Oakland fire, are clearly avoidable and shocking to the conscience of anyone, our hard-won experience at Bornstein Law has shown that most habitability issues arise out of less-known, overlooked violations such as an exposed outlet where children are playing or other mundane violations not so clear-cut. Whether your rental unit passes all of the habitability checks is a subject best reviewed with competent real estate lawyers.

With proper counsel, habitability issues can be avoided and resolved, rectified and liabilities reduced. 

 

Under ordinary circumstances, tenants do not have the right to terminate their lease early because of a new job or job relocation. One exception is military personnel who can end their leases if certain criteria is met.

If a tenant enters the military after inking the lease and they receive permanent change of station orders, or if their expected deployment will be 90+ days, the tenant has the right to terminate the lease with 30 days’ notice, without penalty.

That according to the Servicemembers Civil Relief Act (SCRA), which broadened and tweaked the Sailors’ Civil Relief Act (SSCRA). The aim of the legislation is to provide protections for men and women in uniform that are called to active duty, essentially postponing or suspending certain civil obligations to allow military personnel to devote their full attention to duty and alleviate stress on their families.

When duty calls, service members must deliver formalized notice to the landlord – oral notice is not sufficient. Pay close attention to the effective date of termination – this is a big deal. Reach out to Bornstein Law if you have any questions in this regard.

Bornstein Law pays homage to our service members and urges Bay Area landlords to be deferential in cases when a tenant must serve a larger purpose. Moreover, it’s the law.

While military deployments are a justifiable exit to a lease, more commonly at Bornstein Law, we encounter what we dub “runaway tenants.”. Broken leases and abandonments are an unfortunate reality of doing business for Bay Area landlords.

Understanding the permissible purposes for terminating a lease and knowing what you can or cannot do when a tenant runs away is crucial information for landlords, but these weighty subjects are best approached with the seasoned real estate attorneys of Bornstein Law.

It is well established that void contracts cannot be enforced by law. Clearly, drug dealers cannot enforce an agreement with narcotics buyers. Robbers may not enter into a legally binding agreement on how to divvy up the proceeds of a bank heist, no more than a parent can contract to sell their child.

But what happens when disputes arise between landlords and tenants that occupy an ‘illegal’ unit like a converted garage or bootlegged duplex? When permits are not properly pulled and there is no certificate of occupancy issued, case law suggests that the landlord has no more enforceable contract rights than a drug trafficker.

Although the ruling long eclipsed California’s housing crisis and surge in tenant protections, Gruzen v. Henry remains the law of the land. This is a landmark case where the court took on the subject of illegal structures, concluding that the landlord is not entitled to collect or request any rent if the structure does not match the Certificate of Occupancy or equivalent issued by the city. The wonky types can read the full case here.

This issue graced itself decades ago but enter a housing shortage that spawned thousands of makeshift living environments that do not satisfy code requirements, and many owners are pressed to decide whether to rent their illegal units. We regretfully inform this group that the law is not on their side and the news is grimmer if the clandestine unit is in a city that has implemented rent control. In rent-controlled jurisdictions, the scales seem to be tipped heavily in favor of tenants.

In rent-controlled jurisdiction, dwellers of illegal units get the best of both worlds – they are afforded a range of protections while being absolved of rent obligations.

These informal agreements can go along just fine. But when it goes bad, it is awful.

When a disgruntled tenant becomes contentious, they may be entitled to relocation assistance and seek other damages too numerous to name here. Suffice it to say that you don’t want to defend against these claims.

We were intrigued to read a more recent case, North 7th Street Associates v. Constante. There, the landlord of an illegal unit attempted to use a three-day notice to pay rent or quit as a basis for eviction, and the Court struck down the notice as invalid. The court’s reasoning was that when the purpose of the lease is to rent an illegal unit, the lease is void and by extension, the 3-Day Notice.

This case was notable because it further eroded landlord rights in illegal dwelling situations while propelling those of tenants. Although Gruzen held that landlords were not entitled to rent, the Court nonetheless recognized the sacrosanct right of the landlord to recover possession of the unit.

Although North 7th Street Associates v. Constante was aired out in Southern California and is not binding in Bay Area courts, its underlying logic can insidiously make its way here and be persuasive to judges closer to home. The case is the darling of tenant rights advocates, who are milking it for all it’s worth.

Given a rash of tenant lawsuits including those instigated by illegal unit occupants, it is prudent to ensure you are protected by wrongful eviction coverage, a subject we harped about before.

If there is any bright spot for the owners of illegal units, it is that municipalities are increasingly open to amnesty. With growing pressure to bridge the housing deficit and statewide mandates to get out of the way of new development, many cities are removing the obstacles to legalize illegal units.

Make no mistake, it remains a complex endeavor to bring these dwellings up to code, but there has been a shift in attitude, one that morphed from a posture of penalizing landlords that rented illegal units, to policies of cooperation and forgiveness.

It should be clear by this point that this is a weighty issue that is best approached with the guidance of an attorney that is versed in the many complexities of landlord-tenant law. If you find yourself embroiled in a conflict within an illegal unit, are considering whether to rent an illegal unit, or are looking to bring an illegal unit code compliant, we are here to assist – contact our office today.

 

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.