Oakland tenant wish list doesn’t see the light of day. 

Under the guise of a COVID-19 emergency, the Oakland City Council is voting on over 60 Amendments to the Tenant Protection Ordinance.

If the ambitious agenda of tenants’ advocates cannot be passed with ample notice to the public or survive careful deliberation with input from all stakeholders, amendments can be rammed into an emergency ordinance designed to come to the aid of residents impacted by the novel virus. After all, who can be against the City responding to a public health crisis? According to our friends at the East Bay Rental Property Association (EBRHA), there are several changes in front of the City Council, and here are some of the most concerning:

  • Owners would no longer have the right to agree upon occupancy limits and would be compelled to welcome in additional tenants at any point during the tenancy to the maximum allowed by law.
  • Flying in the face of vacancy decontrol, owners would also be forced to accept sub-tenants. This indefinitely extends the terms of tenancy to new residents.
  • Although the position of the courts has been a 5% late fee is customary, it is proposed that late fees be capped at 1%.
  • A prohibition of unilateral changes in the terms of the tenancy.
  • Tenants would have expanded rights to sue landlords for harassment, adds teeth to tenant privacy.
  • The construction of Accessory Dwelling Units would be stifled with new barriers.
  • Propels a landlord’s failure to pay out relocation benefits to an affirmative defense a tenant can use in an unlawful detainer action.
  • MORE

› Download the proposed changes here (PDF)

The EBRHA argues these provisions have only a tangential relationship with the current crisis, at best, and if the tinkering with tenant protections were truly necessary to address the pandemic, they would be limited in nature and would end at the conclusion of the COVID-19 crisis. Bornstein Law also fails to see the nexus.

Related from Oakland’s version of rent and eviction relief during the coronavirus pandemic

Owners and operators can attend the virtual meeting on Tuesday, April 21 at 1:30 pm.

For the public good, or to the detriment of the landlord?

In an earlier blog, we submitted that owners of “unused” properties became a whipping boy with a newly minted vacant property tax designed to fund homeless programs and services, affordable housing, code enforcement, cleaning up the eyesore of blighted properties, and illegal dumping. The parallel? Owners can be harmed by initiatives that are marketed as being for the good of all, whether or not they have contributed to societal woes.

Where this line is drawn, and how much responsibility rental property owners should shoulder in solving intractable problems has been a perennial question that has been litigated and one we have chimed in on many occasions in the media. Ironically, more layers of onerous regulations crafted to protect renters will only serve to harm tenants, remove housing inventory and create more blight as property owners are disincentivized to beautify, upgrade, and maintain their real estate investment if they don’t just throw in the towel and purchase property elsewhere.

Oakland owners can reach out to their elected officials or use the EBRHA’s automated tool to email a voice of opposition to the entire City Council.

It’s been a bumpy ride lately for owner-occupied duplexes and triplexes. Following a spirited debate, these units are now subject to rent control after Oakland City Council voted to place a 180-day moratorium limiting rent increases to the annual CPI adjustment and entitle tenants to a wide range of added protections, including the right to treble damages, attorneys fees and costs.

Tenant rights under The Rent Adjustment Program begin no sooner than when the tenant moves in – per the program’s requirements, landlords are to give incoming residents formalized notice of tenant rights, known as the Oakland RAP notice.

There was a flicker of hope for owners as the democratic process was seemingly playing itself out. Landlords outnumbered red-shirt toting tenants on Tuesday, February 5 in front of the Community and Economic Development Committee. In the sometimes raucous hearing, befuddled owners left the corridors, chamber, and galleries with more questions than answers after the Council delayed a much-anticipated vote, based on the recommendation of City Attorney Doryanna Moreno, who cited unspecified legal issues brought to her attention.

Although there was no resolution either way, the pause was welcome for a group of landlords who felt confident the proposal would at least be put under further scrutiny, if not defeated on the 26th. This hope was dashed with an Interim Emergency Ordinance.

For City Councilmember Nikki Fortunato Bas and Lynette Gibon McElhaney, relief from rising rents couldn’t come soon enough. The pair floated an Interim Emergency Ordinance to temporarily eliminate exemptions from the Rent Adjustment Ordinance for owner-occupied parcels with two or three units, and a newly minted council sympathetic to tenants’ rights pushed the emergency amendment through Thursday in an effort to curb rent increases. The Ordinance is implemented immediately, not open to further debate or discussion. You can view the ordinance on our website here.

RELATED ARTICLE: We told Mercury News that being proactive and considering preemptive rent increases is good legal counseling. 

This ends a long era of protecting mom and pop owners of two and three-unit buildings from rent and eviction control measures after a long and storied campaign by tenant advocates to put exemptions on the chopping block. Some background is in order.

It’s important to make a distinction between two components of the Oakland Rent Adjustments and Evictions Ordinance. One pertains to rent control and spells out tenants’ rights, while the other establishes eviction protections by delineating the reasons why a tenant can be evicted legally.

The Oakland Residential Rent Adjustment Program (O.M.C. 8.22.030) applies to buildings that have a certificate of occupancy prior to January 1, 1983, but a notable exemption was carved out for duplexes and triplexes when the landlord occupies one of the units as his or her principal residence for at least a year.

Historically, owner-occupied duplexes and triplexes were also exempted from just-cause eviction protections, but the status quo was changed on November 6, 2018, when over 58% of Oakland voters passed Measure Y. Take a look at the storyline leading up to the proposal that sailed through to victory.

Removing the so-called “eviction loophole” wasn’t enough – it was just the opening salvo in efforts to erode the rights of small property owners and remove exemptions altogether. Act Two: as a companion to Measure Y, Councilmembers Dan Kalb (District 1) and Noel Gallo (District 5) floated a proposal to apply the Rent Adjustment Ordinance, better known as rent control, to duplexes and triplexes that house the owners and tenants. To Kalb, it’s all about uniformity.

“The key here is we’re trying to make all of our rent laws consistent with each other and cover the same types of units … this is an effort to conform with Measure Y that was passed by voters last year.”

Fair return

A property owner of a newly covered unit who feels he or she is being denied a fair return on the investment may file a petition with the Rent Program and submit evidence that in the wake of allowable rent caps under the moratorium, the return on investment is less than the return for a similar risk. To request relief, owners must have several things in hand, but this goes beyond the scope of this article. Suffice it to say landlords must have all of their ducks in a row, with the guidance of proper counsel.

Our takeaways

We predict that an already deluged Rent Board will handle many more complaints and new lawsuits will sprout up for an expanded pool of potential litigants. If we did not steadily rail against expanded rent control, you might think we are opportunistic in saying the moratorium will only be a boon for attorneys. Expanded rent control will also put a damper on the construction of Accessory Dwelling Units at a time when these pint-sized units are sorely needed to ease the housing shortage.

Of course, owners of units newly subject to rent control will be exposed to a regulatory regime previously foreign to them. For those owners who are cast into an unfamiliar labyrinth of rules and heightened risk, you can rely on Bornstein Law to get you up to speed on the lay of the land and provide a counter-narrative to newly emboldened tenants and their attorneys. Contact our office for informed advice.

We have said in many venues that rental property owners in Oakland are swimming upstream against an ever-expanding regulatory regime. Now, “vacant” property owners – loosely defined as owners of properties that go “unused” for more than 50 days – will be hit directly in their checkbook, thanks to the passage of Measure W, also known as the Oakland Vacant Property Tax.

Voters resoundingly said yes for the measure, aimed to fund homeless programs and services, affordable housing, code enforcement, cleaning up blighted properties and illegal dumping. The law was cleverly marketed – who can be against ending endemic homelessness and removing eyesores from the neighborhood?

Bornstein Law applauds efforts to tackle these problems, but we think that property owners have been saddled with an inordinate amount of blame. There are a multiplicity of factors that have contributed to Oakland’s growing pains, but it seems that the owners of underutilized properties are an easy but misplaced target for a punitive tax.

In the news: Other people agree with our sentiment that the law lacks clarity. Get a backdrop here.

In our viewpoint, a better course of action would be to remove maddening regulations that stand in the way of owners who want to build on their so-called vacant land.

Our opinion notwithstanding, our job is not to legislate, but to educate property owners on the laws on the books. There’s much we know about Measure W, and much that is up in the air as its implementation takes shape, so let’s start with what we know.

What the law says

Starting July 1, 2020, properties deemed vacant will be taxed $6,000 annually if it is a residential, non-residential and otherwise undeveloped property. A $3,000 annual tax will be imposed on vacant condominiums, townhouses and duplex units.  Ditto for ground floor commercial space parcels, which will also be taxed $3,000.

These funds will go into the coffers of the County of Alameda. The first billing will be in included in the Fiscal Year 2020-2021 Secured Property Tax Bill, which covers the period of July 1, 2020, through June 30, 2021, for property deemed vacant in 2019. The payment due dates and the collection of delinquent Vacant Property Tax are at the same time and in the same manner and subject to the same penalties and procedures as the Secured Property Tax Bill by the County of Alameda.

Exemptions are made for very low-income households, low-income seniors and individuals with disabilities. Owners who can demonstrate that the tax would lead to financial or other hardship are also exempted. We might submit that the tax would constitute a hardship for anyone affected, and so it’s unclear how the city will define this ambiguous term. It seems that Oakland will recognize effort – owners of properties being developed will be spared of the tax, as will non-profit owners.

A commission on homelessness will guard the cookie jar by overseeing how the funds are allocated, with the City Auditor checking in every now and then, and so while we noted earlier that owners of vacant properties should not shoulder the expense of solving intractable problems, there appear to be layers of transparency to ensure the funds are being put to good use.

Much remains uncertain

Like most other matters that cross our desks, the law is cleaner on the page than it is in real life, and the City’s Finance Department seems to agree. That body is tasked with the tall order of formulating a plan for City Council to implement and administer the ordinance, and so there are many unknowns. To their credit, the Finance Department has welcomed public comment and has come up with the following timeline in the deliberative process.

In an introductory letter sent to property owners as part of a public awareness campaign, the city concedes there will be many wrinkles to be ironed out and that there is not enough staff to respond to inquiries.

Bornstein Law, however, has the time and resources to engage. Contact our office for informed advice on how this and other laws impact your bottom line as a property owner.

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

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

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

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

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

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

Our takes

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

A higher loyalty than rent ordinances?

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

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

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

A rising movement

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

“I’ll know it when I see it?”

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

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

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

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

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

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


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

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

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

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

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

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

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

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

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

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

Redefining property ownership

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

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

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

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

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

The debate should be settled.

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

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

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

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

Oakland is at it again.

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

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

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

Some background is in order

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

Where the proposal goes from here

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

Some air support from news outlets?

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

Our thoughts, for what it’s worth

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

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

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

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

OBAR makes its own case against the measure

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

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

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

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

Register for the July meetup here.





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

Oakland City Hall disagreed with our assessment.

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

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

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

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

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

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

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

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

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

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

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

Free speech assailed

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

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

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

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

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

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

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

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

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

Learn more about owner move-in relocation fees →

Mimicking San Francisco

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

Our take

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

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

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

Buyout agreements are nothing to be trifled with

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