Question 1:  Any updates on the state rental assistance program that you described in last month’s article?
Answer 1:  To repeat part of that response, SB 91– christened the Tenant Relief Act – included, in addition to its provisions extending through June the eviction protections to tenants in rent default, a “State Rental Assistance Program”, which seeks to allocate federal pandemic relief funds to tenants who qualify, with the goal being to offer landlords of such tenants the opportunity to be paid 80% of the accrued unpaid rent during the covered period from April 1st, 2020 through March 31st 2021, on the condition that the landlord waives any remaining balance. 

As discussed in last month’s article, landlords who refuse to accept this opportunity, if it is made available, can face some consequences in any effort to collect such unpaid rent from the tenant, either through a collection action, or an unlawful detainer action. 

SB 91 also establishes required elements for the state rental assistance program. Though not comprehensive, the list below highlights some of the key program parameters: 

 

  • The rental assistance program will provide eligible landlords with immediate relief through the payment of 80% of their tenants’ rental arrears accumulated between April 1, 2020 and March 31, 2021. Landlords, in turn, agree to accept this payment as payment in full of any unpaid rent for that period. 
  • In cases where a landlord chooses not to participate, an eligible tenant may apply to the program for 25% of their rental arrears, which will be paid to the landlord. The program also allows for prospective payments of 25% of monthly rent for the months of April, May, and June. 
  • Establishes a requirement for funds to be administered in at least three rounds, prioritizing: (1) Extremely low-income tenants (below 50% AMI (area median income)) or unemployed for 90 days; 2) Below 80% AMI and in a community disproportionately impacted by Covid-19; 3) Below 80% AMI and not addressed by rounds 1 2.

 

SB 91 provided the website http://housingiskey.com as the location for applications and administration of the rental assistance. That website is now operational, though when one enters that address into a search bar, the actual site is https://housing.ca.gov/covid

 

Question 2: I have gotten calls for an available unit, and the only question the caller asked was whether I accepted Section 8 applicants. I confirmed that I did, and they hung up. As far as I can tell, they did not request an application, or have any actual interest in the unit. Is this some sort of scam?

Answer 2: While ‘scam’ might be too strong a word, legally speaking, there have been anecdotal reports of an attorney who has become notorious for representing plaintiffs who claim they were denied an opportunity to apply for a rental unit solely on the ground they were ‘Section 8’ tenants. As most housing providers know, traditionally they were not required to accept Section 8 applicants, which has at the federal level always been a voluntary program for landlords. However, over the years, various jurisdictions, both state and local, began to add ‘source of income’ to the categories protected from discrimination. Finally, last year, effective January 1, 2020, California through SB 329formally included Section 8 rental assistance as a category of source of income. 

In other words, rejecting an applicant solely on the basis that they are receiving Section 8 rental assistance is now a violation of fair housing law in California. Much like the federal ADA rules mandating disability access, unfortunately, this development has led to what some might call ethically challenged lawyers who use the statutory efforts to advance the rights of, in this case, financially disadvantaged individuals, as an easy opportunity to bring a claim against an unsuspecting landlord who, unaware of the recent change in the law, simply responds as they always have – “No, sorry, we do not accept Section 8.” According to one source, the attorney will have an applicant call regarding a random unit being listed for rent, ask whether Section 8 applicants are accepted, and if the answer is ‘no’, that owner will receive a letter from the lawyer shortly thereafter demanding a payoff in the amount of three times the listed rental amount, and a set amount for attorney’s fees, or the attorney will file a disability discrimination complaint.

If an owner or property manager finds themselves in this situation, there is no easy out. There may be a defense under the state law related to whether or not the applicant actually intended to ever rent the unit, or was simply acting as a “tester.’ However, the local versions of the law seem to be what is called ‘strict liability’ i.e., no defense to the violation. Berkeley, for example, not only provides for a penalty of three times the rent and attorney’s fees and possible punitive damages, it also criminalizes the discriminatory act – “Any person who violates any provision of this chapter shall be deemed guilty of a misdemeanor and upon conviction thereof shall be punished by a fine of not more than one thousand dollars ($1,000.00) or by imprisonment in the county jail for a period not exceeding six months, or both.”

Also, the cost of challenging those claims, which are easily brought, typically outweigh significantly the amount that the attorney and tester demand to dismiss their claim. 

Thus, of course, the moral of the story is if an owner or agent should receive such a call, the correct answer should be ‘of course we accept all applicants and evaluate them according to the same criteria.’ And to the extent that seems cynical, all owners and agents are well-advised to practice that approach as to each applicant for an available unit.

Question 3: We believe that there are unauthorized occupants residing on our Richmond rental property. What course of action can we take?
Answer 3: Generally speaking, if your lease prohibits unapproved subtenants, you are entitled to serve a written notice demanding that the tenants cure the violation within three days or face eviction. However, according to the Richmond City’s website, “On March 23, 2021, the Richmond City Council adopted Urgency Ordinance No. 02-2021 (“Eviction Moratorium”) establishing a temporary moratorium on certain evictions of residential tenants in Richmond through the state and local emergency and sixty (60) days thereafter. 

During the local emergency and continuing for sixty days afterward, landlords are prohibited from evicting tenants in most circumstances, except for the following:

  • A nuisance that poses an imminent health or safety threat
  • The tenant has failed to pay rent that came due between March 1, 2020, and June 30, 2021, pursuant to the COVID-19 Tenant Relief Act 
  • The termination is to remove the residential real property from the rental market (Ellis Act), but only authorized by Government Code section 7060 et seq., and following the requirements of the Chapter 5, Richmond Rent Board Regulation.

The  Richmond Urgency Ordinance No. 02-2021 (“Eviction Moratorium”) may be accessed at https://www.ci.richmond.ca.us/DocumentCenter/View/57404/Ordinance-02-21-NS

Thus, unless the additional occupants pose an imminent health or safety threat, you will need to wait until the emergency ordinance expires before taking any action against your tenants.

 

Question 4:  Can I evict a problem tenant if the rent is current? The property is in Concord, Contra Costa County.
Answer 4: A tenant who is creating a nuisance or is in breach of the lease can be evicted in Contra Costa county. It is a question of the level of nuisance or how significant the breach is, and whether the tenant is able to cure the violation with proper notice or not. 

 

Question 5: I rented my townhome in San Ramon in Contra Costa county to two gentlemen on October 1, 2020 on a lease that expires on September 30th, 2021. The townhome is an end unit, so I only have one adjacent neighbor. He has been complaining since the tenants moved in that there are daily banging noise coming from my unit that sometimes vibrates the common wall that we are sharing. He thinks that the banging sound comes from my townhome’s 2nd floor. He recorded the time occurrences and texted them to me. It sounded like weights dropping on the floor. 

I confronted my tenants and was told that they were not doing anything particular, just walking and doing things around the house. I was at my unit to check on all rooms and closets and did not find any weight or exercise machines. The tenants assured me that they are willing to work with the neighbor to find the root of the sound/problem.  However, he has declined to help since he thinks that that is our problem, and we should be the ones finding the solution. I am caught between what my tenants said and the neighbor’s complaints. He has threatened some sort of HOA complaint. Any ideas?
Answer 5: What you have here is the classic case of one neighbor who believes the other neighbor is acting in a fashion to create a nuisance by one means or another. Usually, this is more common in a ‘top and bottom’ situation, rather than side by side. But if your neighbor can gather evidence that demonstrates the tenants are creating the nuisance, then you can move forward against the tenants. I suggest you try to work with your neighbor by making clear what you have done in investigating the complaint. As long as he believes you are making an effort, a reasonable neighbor will work with you. The goal is to solve the problem, not posture for litigation etc. But if he is unwilling to cooperate, and you have no other indication that your tenants are the problem, you are somewhat in limbo. You may need a specific legal consultation if your neighbor continues to issue threats etc.

 

Question 6: I haven’t seen the original tenant for over a year. There was an unauthorized person who has left the unit. One of the other tenants in the building said that person is not coming back and that we can get rid of the stuff left in the unit. I believe the items left are less than $700. I’m serving the Notice of Belief of Abandonment. Rent hasn’t been paid since December 2020. How long do I wait to regain possession and terminate the rental agreement? And how long do I wait to get rid of the items left in the unit? Do I serve the Abandonment Notice & Right to Reclaim Abandoned property at the same time? Please advise.
Answer 6:  You may use the Notice of Belief of Abandonment when the rent is unpaid over 14 days, and you have a genuine belief that the tenant has, in fact, abandoned the unit. If it’s properly served and the tenant doesn’t respond in the statutorily provided 14 days, you are legally permitted to recover possession, and then you would handle any left or abandoned personal property according to Civil Code section 1980 et. seq. You may serve the Notice of Right to Reclaim Abandoned Property with the Notice of Belief of Abandonment, so that those two periods will run consecutively.  (Members may download these forms for free at www.aoausa.com.)

 

Question 7: When can I file an eviction against my Oakland tenant with the current moratorium in place? She has not paid rent or communicated with me in several months.
Answer 7: As you may know by now, the state passed a law in August (AB 3088) and then updated it in January (SB 91) that allows a tenant to pay at least 25% of the rent due by the end of June and avoid being evicted for nonpayment of rent if they do that. If they fail to pay 25% of the rent by the end of June, and assuming the landlord has served the proper notice, currently the landlord would be able to commence eviction proceedings on July 1st. However, of course, that may change.

At this time, about all you can do to prepare for that June 30th scheduled lifting of eviction protections to tenants in default on their rent is serve the appropriate 15-day notice demanding rent, and respond to the tenant’s response accordingly. If the tenant fails to respond, you are entitled to file an unlawful detainer based on that expired 15-day notice.  If the tenant returns the signed declaration regarding pandemic related economic difficulty, you are limited to demanding 25% of the rent, which if unpaid by the end of June can be the basis for an eviction action July 1st … at least as currently scheduled. On the other hand, you may simply want to try to follow the SB 91 rent reimbursement program discussed above and try to receive 80% of the rent from the state, waiving the remaining 20% against the tenant. The state’s website is at housingiskey.com, and you should investigate that if you are interested in that option. 

 

Question 8: I own a duplex built in November 1969. Both sides are rented at present. Does AB 1482 apply to this duplex? Where can I find information on statewide rent control?
Answer 8: Based on your description, those units would be subject to the statewide rent and eviction control law known as AB 1482. Pursuant to Section 1946(d)(6) of the Civil Code, which was amended by AB 1482 to provide a ‘just cause’ requirement for tenancies over one year, duplexes are only exempt if “the owner occupied one of the units as the owner’s principal place of residence at the beginning of the tenancy, so long as the owner continues in occupancy.” You can find the entire statute at https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201920200AB1482

 

Question 9: I gave my tenant a notice of rent increase of $100 after one month of tenancy. Are there any laws or restrictions (including Covid) that protect the tenant from this?
Answer 9: There are local and state rent increase laws that may limit the rent increase tenants can be subjected to, both as a matter of general application, and those that are in place in response to the pandemic, so temporary (we hope!). So, you need to check your local jurisdictions (city and county) for any such rent increase restrictions. Usually, a simple ‘google’ search with key words will result in any such provisions coming to your attention. If there is a local rent board, they are usually helpful in answering such questions.

Statewide, the state law known as AB 1482 limits rent increases (in tenancies not otherwise protected by local rent control) to 5% plus the annual CPI increase for the region in which the property is located. There is also a 10% limit based on the various states of emergency that have been in place in California pretty much continuously for the last couple of years, related either to the massive fires around the state, or, in the last year, the pandemic. 

 

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 510-548-7474; email [email protected] or by visiting the website www.bfc-legal.com.