Question 1: Did Oakland change its rent control law to remove the exemption for owner-occupied buildings?
Answer 1: Currently, Oakland’s ‘Just Cause’ eviction control law (and its companion rent control ordinance) has an exemption for owner-occupied buildings of three units or less. On July 24, the Oakland City Council approved a ballot measure for the November election that would, if passed by the voters, eliminate the exemption. Given the rental climate in Oakland, passage of that measure could easily happen.
Question 2: If we take over property management of a two-unit property which has one current tenant on a month to month agreement, can we ask the current tenant to do a background check or re-apply at no fee? I’m assuming if he doesn’t want to comply and the owner doesn’t feel comfortable without the background check then we can give a 30 day notice? Answer 2: Interesting question. I believe you can make that requirement for month to month tenants who are not covered by a rent control law. A failure to comply would likely be a permitted reason to terminate the tenancy. However, the tenant may claim this sudden requirement is based on some protected status of the tenant such as his or her age, ethnicity etc. and so it is thus a violation of the laws against housing discrimination. In reality, nearly any negative act taken toward a tenant can be countered with a claim that it is based on a prohibited discriminatory reason, so the owner or manager needs to weigh each action in light of that reality.
Question 3: If I receive multiple applications for an offered unit, can I pick the best of the bunch? Does the time order in which I received the applications matter? If it comes down to two couples who are both well qualified, and the couple that doesn’t get the property asks me why, what do I have to tell them? Answer 3: You are entitled to select the most qualified applicant from multiple applicants, regardless of the timing of their application, particularly if you told all applicants that the application period was going to be open a certain period. The permitted selection criteria would be based on the income, credit history, employment history and housing history of the various applicants. There should be no consideration of their personal attributes, i.e. race, age, religion etc. (even, surprisingly, their appearance). If you have two evenly matched applicants, of course someone must get rejected, and in that case, unless there is some other reason, you might go with the first in time applicant. If the rejected applicant inquires, and you did not select the first-in-time applicant, the safest response would be to keep it simple, as in ‘the successful applicant’s qualifications were deemed the best overall.’
Question 4: Do I have to write a denial letter for any tenant applicant who is not selected? Answer 4: A landlord is not legally required to notify unaccepted applicants unless they are not accepted based on information found in their credit report. In that case, a Notice of Adverse Action’ is required. There are both federal and state laws that apply ( [15 USC § 1681 et seq. (Fair Credit Reporting Act, “FCRA”); CC §§ 1785.1 et seq. (Consumer Credit Reporting Agencies Act, “CCRAA”), 1786 et seq. (Investigative Consumer Reporting Agencies Act, “ICRAA”). Below is information from the Federal Trade Commission on what to do under the federal version if you reject an applicant based on credit report information.
An Adverse Action “An adverse action is any action by a landlord that is unfavorable to the interests of a rental applicant or tenant. Examples of common adverse actions by landlords include:
- Denying the application;
- Requiring a co-signer on the lease;
- Requiring a deposit that would not be required for another applicant;
- Requiring a larger deposit than might be required for another applicant; and
- Raising the rent to a higher amount for another applicant.
After You Take an Adverse Action
If you reject an applicant, increase the rent or deposit, require a co-signer, or take any other adverse action based partly or completely on information in a consumer report, you must give the applicant or tenant a notice of that fact – orally, in writing, or electronically. An adverse action notice tells people about their rights to see information being reported about them and to correct inaccurate information. The law requires that the notice MUST contain specific information and AOA members may download form #140 – the Tenant Rejection Notice for FREE by visiting www.aoausa.com.
Question 5: Can I raise rent if it is less than 10% within 12 months? I raised rent in October of 2017 and I want to give small rent increases by sending a 30 day rent increase notice effective Sept. 2018. Is this ok? Answer 5: If the unit is not subject to rent control, and on a month to month agreement, you may generally raise the rent under state law as often as you think it’s appropriate. But if the total increase in any 12 months period exceeds 10%, a 60 day notice is required, rather than the 30 day notice when the increase(s) totals less than 10%.
However, please note that there remains a ‘state of emergency’ rent increase moratorium in place until December 4, prohibiting rent increases exceeding 10%. While the state of emergency (based on last fall’s Napa and Sonoma county fires) extension was limited to specified counties in northern California – Mendocino, Napa, Solano, Sonoma – California’s attorney general has interpreted the price-gouging law to apply anywhere in the state with an increased consumer demand resulting from the emergency. Establishing an ‘increased consumer demand’ would be required for a criminal charge, and it is unclear how a prosecutor might make that showing. However, as a precaution, it is probably a better idea to limit increases to the 10% even in counties outside the named ones.
Question 6: I have tenants breaking their lease six months early and she wants me to find a new tenant. Can I charge a leasing fee of a half a month rent? Answer 6: The tenants are responsible for the lease term, and if they vacate early (regardless of their personal circumstances) you can sue them for your rental income loss. However, you have a duty to mitigate the loss by trying to re-rent the unit as soon as possible. If you can advertise and rent while they are still in the unit, you may have almost no lost rent to hold them responsible for. Whether you can charge them a leasing commission, if you paid one, is not completely clear, but you could probably charge at least half the commission since they are leaving half-way into the lease term.
Question 7: I own a triplex in the City of Alameda. I just received a form from the city regarding the Rent Program Registration Fee. The attached Appendix states that I must list all units, their current rent, and the number of bedrooms. This seems particularly “Big Brother” to me. I don’t believe that this information was required last year. I really do not want to provide it. Can you advise on the legality of the city requiring this info? Answer 7: Assuming the rent board letter and form complies with the Alameda Ordinance (City ofAlameda Rent Review Rent Stabilization and Limitations on Evictions Ordinance) which allows for the rent board to require such information; I think that you would be withholding that information at your risk. While it is invasive, it is also generally within the city’s power to make such laws and to enforce them. To challenge the validity of the ordinance could be done, but it’s likely to be an expensive and ultimately unsuccessful effort.
Question 8: I am considering an applicant who wants to sign a new month-to-month lease, instead of my typical one-year lease. Both parties have agreed to do this month-to-lease lease on the condition that either party agrees to a 60-day notice prior to move-out. Does this violate any CA or SF laws because it’s more than the typical 30-day notice? Answer 8: You and the tenant can agree as you outline, but if the unit is subject to the local rent and eviction control ordinance, it will not be enforceable against the tenant. In other words, the tenant can agree to leave on a 60 day notice, but if the notice does not comport with a ‘just cause’ ground, the tenant can ignore it, and, worse, there is possibly liability for attempted wrongful eviction to you just for sending it!
Question 9: MyDaly City rental property is located on a corner where neighbors tend to dump their mattresses, sofas and furniture. Police assume the junk is dumped there by my tenants and say they will cite me for the junk left there. My tenants see neighbors from up the street dragging the stuff there at night but do not want to say anything to the people fearing retaliation. Am I responsible for other people dumping stuff illegally on the sidewalk next to my building? Thank you. Answer 9: That is a very vexing problem. I would contact the Daly City PD and let them know again that it is not your tenants, and repeat what you explain below (you probably already have to no avail, but I would try again anyway). I don’t know the Daly City rules of dumping etc., but generally the property owner is responsible for the sidewalk in front of their property (usually sidewalk and tree maintenance issues though). Again, working with the PD and your department of public works is the best I can suggest, other than getting a security camera to prove your point about who is doing the dumping.
Question 10: I have tenants moving in with “real” service dogs (diabetes detectors). Do I charge a pet deposit and extra rent like I do for “normal” dogs? Or do I waive that since they are service animals? Answer 10: If the tenant’s animal(s) are truly ‘service animals’ (as described below in Civil Code Section 54.1), you may not charge any additional rent or deposit for the tenant’s use of such service animals. (6) (A) It shall be deemed a denial of equal access to housing accommodations within the meaning of this subdivision for a person, firm, or corporation to refuse to lease or rent housing accommodations to an individual who is blind or visually impaired on the basis that the individual uses the services of a guide dog, an individual who is deaf or hard of hearing on the basis that the individual uses the services of a signal dog, or to an individual with any other disability on the basis that the individual uses the services of a service dog, or to refuse to permit such an individual who is blind or visually impaired to keep a guide dog, an individual who is deaf or hard of hearing to keep a signal dog, or an individual with any other disability to keep a service dog on the premises.(B) Except in the normal performance of duty as a mobility or signal aid, this paragraph does not prevent the owner of a housing accommodation from establishing terms in a lease or rental agreement that reasonably regulate the presence of guide dogs, signal dogs, or service dogs on the premises of a housing accommodation, nor does this paragraph relieve a tenant from any liability otherwise imposed by law for real and personal property damages caused by such a dog when proof of the damage exists.(C) (i) As used in this subdivision, “guide dog” means a guide dog that was trained by a person licensed under Chapter 9.5 (commencing with Section 7200) of Division 3 of the Business and Professions Code or as defined in the regulations implementing Title III of the Americans with Disabilities Act of 1990 (Public Law 101-336).(ii) As used in this subdivision, “signal dog” means a dog trained to alert an individual who is deaf or hard of hearing to intruders or sounds.(iii) As used in this subdivision, “service dog” means a dog individually trained to the requirements of the individual with a disability, including, but not limited to, minimal protection work, rescue work, pulling a wheelchair, or fetching dropped items.
Richard Beckman, of Beckman Feller & Chang P.C., has been practicing landlord-tenant law for over 26 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 415-871-0070; email firstname.lastname@example.org or by visiting the website www.bfc-legal.com.