Question 1:  I own a single-family home in Oakland with tenants on a month-to-month basis. The tenant has been there more than a year. Can I still legally raise the rent?
Answer 1:  While nearly every aspect of residential tenancy life is currently being changed by legislative responses to the COVID 19-related states of emergency, the underlying rules either remain or, presumably, will be reinstated once the crisis has passed and the state of emergency lifted. Exemptions to rent control have not changed, but rent increases are subject to temporary limitations. For rental units regulated by Oakland Municipal Code 8.22.010 (the Oakland Rent Adjustment Program), no notice of rent increase in excess of the CPI Rent Adjustment shall be effective if the notice is served or expires during the Local Emergency, unless required to provide a fair return.

If the unit is a single family home (or a condominium), it is not subject to rent control, subject to some exceptions, including where the preceding tenancy was terminated by the owner with a 30-day or 60-day notice to terminate the tenancy (pursuant to Civil Code Section 1946). Also, in cases where the condominium has not been sold separately by the sub-divider to a bona fide purchaser, rent control still applies. So, be aware of those two items in particular. Also, if a Tenant Petition is filed challenging a rent increase, and the owner believes the unit is not covered by the Ordinance, the owner must respond to the petition to prove the unit is exempt.  An owner also has the right to file a Landlord Petition to obtain a Certificate of Exemption in advance, which if granted will result in the dismissal of the tenant’s petition challenging the rent increase.
But always be aware that where there is a state of emergency in place – whether related to the recent wildfires, an earthquake or the current virus crisis – rent increases are limited to 10% everywhere, absent a showing that a higher amount is justified by the owner’s particular circumstances.

 

Question 2:  We have a parking issue, I have posted signs NO PARKING signs in front of the garages, but people still park there (mainly a few tenants). Can I have a contract with a local tow company to tow them and make the tenant pay the charges? They also park in the FIRE LANE, I have issued warnings but they still violate it. Everyone has an assigned parking space.
Answer 2:   Having a vehicle towed from private property is a rather detailed process that is set out in Vehicle Code Section 22658.  However, set out below are the essential conditions under which a vehicle can be legally towed. There are consequences to both the towing company and the person causing the vehicle to be towed if the requirements of Section 22658 are not met, which include providing notice to the local law enforcement agency within one hour (if possible) of the tow, and to the owner of the vehicle (if known). It may be prudent to contact a local towing company in advance and arrange with that towing company a relationship for future tows, which may help insure compliance with Section 22658. If the statute is complied with, the owner of the towed vehicle will be responsible for the charges.

Section 22658:

(a) The owner or person in lawful possession of private property… may cause the removal of a vehicle parked on the property to a storage facility that meets the requirements of subdivision (n) under any of the following circumstances:

(1) There is displayed, in plain view at all entrances to the property, a sign not less than 17 inches by 22  inches in size, with lettering not less than one inch in height, prohibiting public parking and indicating that vehicles will be removed at the owner’s expense, and containing the telephone number of the local traffic law enforcement agency and the name and telephone number of each towing company that is a party to a written general towing authorization agreement with the owner or person in lawful possession of the property. The sign may also indicate that a citation may also be issued for the violation.

(2) The vehicle has been issued a notice of parking violation, and 96 hours have elapsed since the issuance of that notice.

(3) The vehicle is on private property and lacks an engine, transmission, wheels, tires, doors, windshield, or any other major part or equipment necessary to operate safely on the highways, the owner or person in lawful possession of the private property has notified the local traffic law enforcement agency, and 24 hours have elapsed since that notification.

(4) The lot or parcel upon which the vehicle is parked is improved with a single-family dwelling. An owner or person in lawful possession of private property, causing the removal of a vehicle parked on that property shall notify by telephone or, if impractical, by the most expeditious means available, the local traffic law enforcement agency within one hour after authorizing the tow. An owner or person in lawful possession of private property, causing the removal of a vehicle parked on that property, or the tow truck operator who removes the vehicle, shall state the grounds for the removal of the vehicle if requested by the legal or registered owner of that vehicle.

An owner or person in lawful possession of private property causing the removal of a vehicle parked on that property is liable for double the storage or towing charges whenever there has been a failure to comply with paragraph (1), (2), or (3) of subdivision (a) or to state the grounds for the removal of the vehicle if requested by the legal or registered owner of the vehicle as required by subdivision (f).

A link to the Vehicle Code Section is here, and anyone intending to arrange for the towing of vehicles should read the entire code section. http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=VEH&sectionNum=22658

 

Question 3:  I have a tenant that has been with us for many years. However, last night he was arrested for having shot a gun on the property, apparently over drugs. We have never experienced anything like that before. We want to serve notice to move. Do I have to give 60-day notice or is there another notice sooner than 60 days? Do the current eviction moratorium laws affect this situation?
Answer 3:  In your case, a shooting incident (unless it was in self-defense) would likely qualify for a three-day notice to quit for nuisance, so you would have an option beyond the 60-day notice. Assuming the facts turn out that the tenant was not an innocent victim, but truly creating a safety hazard to the other tenants, and the public, an eviction effort based on those facts would also be allowed under the current eviction restrictions. In every local jurisdiction that has passed emergency legislation to limit evictions during the state of emergency, evictions based on threats to safety are allowed. For example, on March 18, 2020, the San Francisco Superior Court stayed all actions of unlawful detainer cases (eviction lawsuits) for 90 days, except those resulting from violence, threats of violence, or health and safety issues. 

Likewise, on March 23, 2020, San Francisco ordered that no landlord may attempt to recover possession of a residential unit unless due to violence, threats of violence, or health and safety issues.  This moratorium will last for 60 days after the Mayor’s Order expires.  The Order is set to expire on April 22, 2020 (the “Expiration Date”), which means the moratorium would last until June 21, 2020, unless the Mayor extends the Expiration Date further.  If a landlord wishes to serve an eviction notice that would take effect after the moratorium, they must use the form prepared by the San Francisco Rent Board.  The form can be found on the Rent Board’s website (www.sfrb.org). But a similar exception for such necessary evictions is provided in each of the local city’s emergency ordinances limiting evictions otherwise.

And just as this article was going to print, the California Chief Justice Supreme Court issued an emergency Order that includes a provision that effectively prohibits all residential and commercial evictions unless the eviction is to protect ‘public health and safety’.  Specifically, “a court may not issue a summons on a complaint for unlawful detainer unless the court finds, in its discretion and on the record, that the action is necessary to protect public health and safety. This rule will remain in effect until 90 days after the Governor declares that the state of emergency related to the COVID-19 pandemic is lifted, or until amended or repealed by the Judicial Council.”

While this is the current state of the law, it is difficult to imagine this rule not getting amended to allow more than just health and safety evictions to go forward sooner than what could be six (or more) months! Needless to say, stay tuned….

 

Question 4: What qualifies as “capital improvements” under the Oakland rent control law? I have a termite report with $50,000.00 plus in work we need to do. Am I allowed to pass this on to tenants? The regulation is a bit vague–it says it should be for tenant’s benefit. We need to replace a porch, and some of the framing. Thank you.
Answer 4: You are correct that the ordinance definition of capital improvements is unclear in your situation (“Capital improvements means those improvements to a covered unit or common areas that materially add to the value of the property and appreciably prolong its useful life or adapt it to new building codes. Those improvements must primarily benefit the tenant rather than the owner.”). However, if the work has to be done, it has to be done, and the rent increase will likely be up to the Oakland rent board, as it would be the entity that would be making the decision on any rent increase based on capital improvements. However, I would be surprised if termite repairs would not be a capital improvement.

But note that petitions to increase rents beyond the annual CPI are affected by the Oakland rent board’s temporary operating restrictions.  Due to the Shelter in Place Order issued on March 16, 2020, all drop-in housing counseling and workshops have been canceled. Rent Program staff members remain available to assist members of the public by phone at (510) 238 – 3721 during normal business hours M -F 9:30 am – 4:30 pm. 

All hearings, mediations and Rent Board meetings scheduled through April 10th are postponed until further notice. Parties will receive notice of a new hearing date in the mail. New petitions should be submitted online. All petition related documents should be submitted by mail to 250 Frank Ogawa Plaza, Suite 5313 Oakland, CA 94612.

 

Question 5:   At one of our Berkeley properties a unit is shared by two people. Both are on the lease. It is a month to month rental at this point. If there are two roommates, and only one is out of work due to the virus and can prove it, does that qualify them from being excused from the entire rent?
Answer 5:  Apparently. Pursuant to the emergency Berkeley ordinance, if the ‘household’ income is affected, that is sufficient. Below is an excerpt from the ordinance:

During the State of Emergency, no landlord or other entity shall evict or attempt to evict an occupant of real property in either of the following situations: 

For nonpayment of rent by a commercial or residential tenant or default in the payment of a mortgage, if the occupant demonstrates that the inability to pay is due to COVID-19, the State of Emergency regarding COVID-19, or following government-recommended coronavirus precautions (collectively referred to and defined below as covered Reasons for Delayed Payment), Covered Reason for Delayed Payment” means

(1) the basis for the eviction is nonpayment of rent, or a foreclosure, arising out of a substantial decrease in household or business income (including, but not limited to, a substantial decrease in household income caused by layoffs or a reduction in the number of compensable hours of work, or a substantial decrease in business income caused by a reduction in opening hours or consumer demand), or substantial out-of-pocket medical expenses; and 

(2) the decrease in household or business income or the out-of-pocket medical expenses described in subparagraph (i) was caused by the COVID-19 pandemic, or by any local, state, or federal government response to COVID-19, and is documented.

But as with each of the local ordinances, the tenant is not (yet) excused from paying any of the missed rent. However, in nearly every city, Berkeley included, the unpaid past rent cannot be demanded through the three-day notice process, but must instead be pursued by the small claims or superior court judicial collection process. 

 

Question 6:  I have had the same tenants or about 20 years. I cannot locate the original month-to-month agreements. I need to make some changes to it. Is it a good idea to make amendments to it, even though I cannot find it; or do I issue a new agreement and insert all the changes, and make the original agreement subordinate to the new agreement?
Answer 6:   Since the tenants are on a month-to-month version of whatever rental agreement you originally had, and are not subject to a local rent control law (though the recently enacted AB 1482 might apply in that case), you can serve a brand new lease by including it with a Notice of  Change of Terms of Tenancy, to make the new lease take effect 30 days after service, and that lease will become the new rental agreement between you and the tenants if they remain in possession after the notice period expires. That would probably be easier than trying to locate and amend the old agreement. 

 

Question 7:  I sent my former tenant a certified letter with itemized deductions and a refund of the balance of her deposit (I deducted about $800 from her $3,700.00 deposit), well within the 21-day deadline. There was confusion on my part as to her name (she had changed it during the tenancy but I forgot that and used the name on the lease) and forwarding address, and the letter was returned to me as undeliverable. I was able to locate her and send the letter again, but after the 21-day period.  She now threatens to go to court demanding that I pay her the full deposit. She is really trying to hold me to that 21-day period, but I believe my original effort should count.  Will I lose if she does take me to small claims court?
Answer 7:  Security deposits are one area of tenant laws seemingly unaffected so far by recent developments.  If the deductions were legitimate, and the effort to return and account for the deposit was in good faith, it is unlikely a small claims judge would ‘ding’ you for the fact the accounting and deposit balance did not reach her within the 21 day period based on your very unique facts. However, another judge hearing the same facts could reach a different result and agree with the tenant that the 21-day period is a strict time limit, and any mistakes by the landlord do not extend it. It may make sense for both of you to ‘split the difference’ and offer to return half the amount you deducted. 

 

ALERTS AND UPDATES: 

As every member knows, what is written today may be subject to change tomorrow in the current crisis environment. AOA is committed to providing members with current updates via emails, and to the extent any of the responses above are affected by subsequent changes to the applicable laws, I will strive to provide an update in next month’s column. Until then, good luck to all, ‘practice the five,’ and stay safe.