Question 1: I am trying to sell my triplex in Oakland and the buyer wants the property vacant upon closing. He wishes to move himself and his family into all three units. Can I legally require my tenants to move out; and if so how much notice do I need to give them?

Answer 1: If the units are under the eviction control law known as Measure EE, you can’t ‘make’ the tenants move (absent one of the 11 ‘just cause’ grounds, which do not include sale of the building). You can try to negotiate the tenants out by offering to pay them to move (but there are restrictions on that practice, and so any such offers should be carefully done to avoid allegations that the tenants were ‘constructively’ wrongfully evicted or threatened). Otherwise, the buyer will have to undertake the eviction of a unit by the Owner Move-In ground (which if successful could result in exemption of the rest of the building from the provisions of Measure EE), or the buyer could seek the simultaneous removal of all units from the rental market through the “Ellis Act” process.           

Question 2: I’m not sure if my building is under Measure EE; it is in Oakland but was built in 1987. I was told that all buildings in Oakland built after 1983 are new construction and are not subject to Measure EE guidelines. If so, can I give my tenants a 60 day notice to vacate without ‘just cause?’
Answer 2: According to the Oakland Rent Board website, the eviction control ordinance known as Measure EE applies to properties that have a certificate of occupancy prior to January 1, 1983 (thus making your building not subject to the ordinance). However, having reviewed the applicable ordinances, it is very difficult to make that same determination. I posed this question to Connie Taylor, the Program Manager of the Rent Adjustment Program. She replied that “Measure EE was voter approved in November 2002.  It became effective January 1, 2003. The Rent Ordinance was adopted by the City Council in October 1980 by Ordinance and codified as O.M.C. Chapter 8.22.; it has been modified several times.   The most current changes to the Ordinance will be effective August 1, 2014.” Her response does not help clarify the effective date of Measure EE, since from her response it would seem Measure EE became effective January 1, 2003, and by implication would not apply to buildings built after that date, rather than apply retroactively to 1983.

But if theOaklandrent board website lists January 1, 1983 as the effective date of the Rent Adjustment Program law, (and Measure EE refers to the same ‘effective date’) then I think you can rely on that date.

If the unit is not covered by the ordinances, either rent control or eviction control, then you are not bound by those restrictions and do not need ‘just cause’ to terminate a month-to-month tenancy, and there would be no local restrictions on your rent increase.

Question 3: How much written notice to vacate must be given to terminate a month-to-month tenancy?
Answer 3: Unless the tenant is “Section 8,” they are entitled to a 30 day notice unless they have been your tenant over one year, in which case they get a 60 day notice. Section 8 tenants are entitled to receive 90 days notice.

Question 4: We have just had a new tenant sign a one year lease, but she has not moved in yet. She is married but said she didn’t know if her husband would be there much so we didn’t put him on the application or the lease. We just saw in the local paper booking logs he has been arrested for “annoying or molesting children under 18 years.” The unit is part of a duplex and the unit next door has small children. What do we do?

Answer 4: That’s one sticky wicket, as the saying goes. I don’t think there’s any one correct legal answer, since as you note, he’s only (apparently) been arrested, perhaps not even charged, but certainly not convicted, of a sex offence with a minor. But even if he was a convicted sex offender subject to Megan’s Law, the answer would still be unclear, since while you may legally refuse to rent to a registered sex offender, you had already agreed to rent the unit to his wife and so are bound by that agreement absent some legal reason you could seek to void it (such as non-disclosure by the applicant to any of the application questions, particularly any pertaining to criminal history etc).

However, that analysis is beyond the scope of the Q&A forum. Consulting with qualified counsel may be your best step.

Question 5: When a tenant does not pay rent, do we need to send a 3 day notice or 3 day and a 30 day at the same time to expedite the eviction process?

Answer 5: If a tenant fails to pay the rent, the appropriate notice is the three day notice to pay or quit.  If the tenant is a month to month tenant, you can also send a 30 day notice to quit at the same time if you want to not only demand the unpaid rent, but also let the tenant know that even if he or she pays the rent, the rental agreement is terminated after the longer notice expires (but please remember that if the tenant has been a tenant for over one year, a 60 day notice to terminate is required).

Question 6: I’m in the process of renting one of my units. Do I have to accept Section 8 tenants?  Also if I do get a Section 8 tenant, I’ve heard the amount that their voucher covers can vary. Can I evict the tenant if they can’t pay the full amount?

Answer 6: The question about whether a landlord has to accept a section 8 applicant is a complicated one, since the issue is in flux in the courts and there is no absolutely clear answer. Generally, however, under state and federal law, a lessor may decline to rent to a Section 8 applicant unless the tenant receives Section 8 financial assistance due to the tenant’s disability. In that case, and assuming the tenant requests the landlord to accept the Section 8 voucher as a reasonable accommodation to the tenant’s disability, the landlord may still decline if the landlord can establish that accepting Section 8 is not a reasonable accommodation because doing so would unduly burden the landlord with excessive regulatory obligations related to the tenancy. If the Section 8 applicant persists, however, the landlord may need to defend him or herself against claims of disability discrimination.

However, even the state and federal rule discussed above may be changed if there is a local law that seeks to prohibit a landlord from discriminating against the applicant’s ‘source of income’ (which would require a landlord to accept Section 8 applicants), as there is in San Francisco (Police Code Section 3304, the legality of which however is uncertain as it may be preempted by state or federal law).

Those are issues that needs more case or statutory development, and may result in a landlord’s obligation to accept Section 8 in such limited cases.

As to the ability to evict the tenant if the tenant fails to pay his or her required portion of the rent, the tenant is subject to eviction after a proper 3 Day Notice has been served if the tenant does not pay the amount demanded. The eviction process would proceed similarly to a non-Section 8 tenant case.

Question 7:     I have a tenant who has been in my rental since Dec. 2012. In 2013, when she renewed the 12-month lease, she added her boyfriend because she wanted him to move in with her. They have now broken up and he will not move out. She has called the police on him and they have been to the unit five times. He has now filed a restraining order against her, but they have not gone to court yet. Apparently, he has not contributed to the rent at all over the last year and just wants to freeload off of her. She feels her only option is to give notice and break the lease. She is a really good tenant and does not want to leave, but gave me a written notice a few days ago. Is this the best course of action to get him out? I will not rent to just him, because he will not qualify for the rent on his own. Can I evict him? How would I do that? My goal is to keep her in the house and get him out.
Answer 7:  What a stand up guy…. and a tough situation for your tenant. But if he is on the lease, he is – absent a restraining order that could be issued upon proof of possible violence – as entitled to remain in possession as she is. If you want to keep her and evict him, you would have to serve a notice to terminate the tenancy and when the tenants vacate, arrange to re-rent to her as a new tenant. If they are not paying the rent, you would be able to serve a three day notice for non payment of rent and evict them both if they did not pay the rent. Alternatively, since she would not want an eviction on her record, you could arrange to only name him, as long as you served the prejudgment claim of right to possession form when you served the eviction lawsuit. But you will probably want legal advice on that process.

Question 8: Can I legally enter an apartment to make emergency repairs even if the tenant is not around?  Can I enter to make repairs after giving written 24 hour notice even if the tenant doesn’t respond?
Answer 8:  You can enter the unit for an emergency without notice. Entry for ‘normal’ repairs requires personal delivery of a proper notice of intent to enter with 24 hours’ notice. If the tenant does not respond, that does not prohibit you from entering but it is recommended that you take someone with you as a witness to lessen the possibility of claims that you disturbed the tenants’ possessions or worse, took something.

As further response to your question, I will reprint an answer to a similar question in an earlier edition of the Q&A column:

As set out in the applicable statute, Civil Code Section 1954, unless the tenant consents, or there is an emergency, the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.

Also, if the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary. The notice shall include the date, approximate time, and purpose of the entry. At the time of entry, the landlord or agent shall leave written evidence of the entry inside the unit.

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 19 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 rich@beckmanblairllp.com or by visiting the website www.beckmanblairllp.com.

 

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