Question 1: Any updates on the state of the courts and unlawful detainers for lease breaches other than non-payment of rent?
Answer 1: As has previously been discussed in this column, the state law passed in January known as SB 91 provides the comprehensive procedure and rules regarding nonpayment of rent cases through, at this point, June 30th, 2021. The Legislature left it to local jurisdictions to address eviction protections not related to rent payment issues.
The various jurisdictions, both City and County, have generated a hodgepodge of pandemic tenant eviction protections, and so an owner’s options with regard to tenants in violation of their lease will depend on the location of the property. One thing that all the local ordinances have in common is an exception to eviction restrictions if the case is based on ‘public health and safety’. In other words, while an owner’s right to move in, or terminate a tenancy for violating subletting provision or similar type lease violations is restricted in these jurisdictions, such as San Francisco and much of the East Bay, if the tenant presents a threat to people or, less clearly, property, courts are allowing those cases to proceed. Other jurisdictions, such as much of the Peninsula, have removed, or allowed to expire, the broader eviction restrictions, limiting most restrictions to the state-based nonpayment of rent rules. So, as was the case pre-Covid, where your property is located will determine to a great extent what actions you can take regarding your tenant.
There may be additional notice requirements related to some of the local tenant protection laws before other violations of the lease may be pursued, so be sure to check your local notice requirements. But, if the tenant is served with a 15-day notice for non-payment of rent, but fails to return the required declaration, all courts are accepting those filings.
Question 2: Aside from non-payment of rent, for the other just cause reasons to evict (breach of lease term, nuisance, waste, illegal criminal activity, etc.) on a rental property, have the 3-day notice requirements changed due to all the legislation?
Answer 2: For breaches of the lease other than non-payment of rent, the three-day notice under state law remains the appropriate notice period. However, local jurisdictions also may have additional requirements, and so they need to be checked carefully before serving the 3-Day Notice. For example, a client recently pursued a public health and safety eviction for a property located in Oakland, in Alameda County. While the Alameda County Ordinance specifically states that if the local law’s protection is stronger (as is the case with the Oakland version), then the local ordinance applies, the County law still required serving a copy of the County-mandated notice language along with the Oakland-required Notice language. Failure to do so was a fatal defect, requiring the client to start the process over from the beginning. So, ensuring you have the proper language included in your notices is the most important procedural task you will face.
Question 3: A few related questions regarding a tenant who has not paid April 2021 rent.
1. Which form should I use to notify the tenant to pay rent or quit? The 3-day or 15-day form or some other form? 2. Should the full amount of April rent be included in the notice or just 25% of the rent? 3. If after the notice period expires, must I accept rent if tenant pays or can I refuse to rent and file eviction?
Answer 3: The state law 15-day notice with specific information is required to notify the tenant to pay rent or quit. However, as noted above, local jurisdictions also may have additional requirements, and so need to be checked carefully before serving the 15-Day notice.
The full amount of April rent should be included in the notice, not just 25% of the rent.
And while you are legally permitted to refuse to accept rent that is tendered after the notice expires, an eviction action is likely to face heightened scrutiny depending on when the tender was made relative to the expiration of the notice. For example, refusing to accept rent a day after the notice expires, particularly if the tenant has some sort of excuse, could allow the tenant to argue that your ‘dominant motive’ for filing the eviction is not to recover the rent, but to evict the tenant. If that is established, your eviction action could fail.
Question 4: I am contemplating converting a three-car garage into a one-bedroom unit. The three-car garage is attached to a duplex and both units in the duplex are rented. What are my legal requirements to my current tenants in the duplex regarding converting an attached garage which is currently being used by them? I plan on adding a detached storage building for each unit to replace the storage.
Answer 4: As the tenants are currently using the garage, as part of their rental agreement, then an adjustment will have to be made reflecting the fact that that housing service is going to be removed. In non-strict rent control jurisdictions, i.e., not San Francisco, Berkeley or Oakland, and assuming that tenancies are month-to-month, you would simply send the tenants a notice of termination of the housing service by serving them a notice of change of terms of tenancy, and give them 30 days’ notice of that change. If they remain in the unit after the notice expires, and pay the rent, they will be deemed to have accepted that change.
However, if your property is in a more restrictive location, removing housing services is much more challenging. For example, in San Francisco, parking may not be removed from a tenant without a ‘just cause’ ground. Since this change to the San Francisco ordinance was introduced, it has created considerable confusion as to what constitutes ‘just cause’ for removing a housing service. If you were going to, in effect, demolish the garage and build something new, then a just cause based on demolition of the parking would probably be legally sufficient. You will need to check your ordinances regarding what level of rent control protection it provides your tenants.
Other than the above, I’m not aware of any specific obligations you owe to your tenants based on your intention to add a unit by converting a garage to a new dwelling, other than your general obligation to ensure the tenants’ quiet enjoyment of the premises. Meaning, if the construction work is unreasonably disruptive to their use of the premises, you would likely owe them some sort of rent reduction etc, to compensate them for the disruption to their right of quiet enjoyment.
Question 5: One of my tenants who pays very little rent is asking that I put new windows into her apartment in Oakland and I wanted to know what rent increases I could apply to the work.
Answer 5: That would be a petition to the Oakland rent board for a capital improvement-based rent increase. They have a formula, and limitations on exactly what can be recovered and how long it takes. Also, there are rent increase restrictions in place in Oakland at the moment, limiting increases to the annual CPI increase. However, if you go to the Oakland rent board website, you should be able to get more information on that process and the current moratorium on increases. https://www.oaklandca.gov/resources/read-the-oakland-rent-adjustment-program-ordinance.
Question 6: We recently bought multiple apartment complexes in various local cities. Since taking over the properties as of May 2020, most if not all tenants are now month-to-month since their rental agreements have expired. We wish to have all tenants under new (month-to-month) rent agreements. The security deposit paid at their initial move-in would have been, for instance, $500. The amount of rent should have been the same as the security deposit at that time, too. However, the rent has gone up over years for instance to $1,000. Since we are trying to have them sign new rent agreements, and the rent increases have gone up past the amount of the security deposit, can we increase the security deposit to match the current rent? Also, are there rent increase restrictions in place related to COVID?
Answer 6: For any of your properties that are subject to a local rent control ordinance, increasing the deposit in certain locations can be considered an unenforceable change in the rental terms. However, as the SF rent board states: “There is nothing in the law that specifically allows the landlord to raise the security deposit amount over time, although some landlords believe that the deposit can be brought up to reflect two months of the current rental amount with proper notice. Since this is a matter of state law, the Rent Board does not handle such disputes.” In such cases, serving a Notice of Change of Terms of Tenancy to require the increased deposit should be an enforceable change, though a court may interpret the rules more strictly.
The location of your properties will also primarily determine your rights to increase the rent. As you certainly must know, many Bay Area cities, and in some cases counties, have local rent and eviction control ordinances in place. In those that don’t, all properties are subject to the state version passed in 2019 as AB 1482. There are exemptions for single family homes, and in some cases duplexes, but certain requirements exist. As you can see, there’s no ‘one size fits all’ response to your inquiry.
Question 7: My daughter is looking to move into a single-family residence that we own, and is now being rented, which I understand is a “no-fault eviction” option which we are able to exercise because she is the daughter of the owner. And I understand that because tenants have been living at the house for almost 10 years, we have to give them a 60-day notice. But what I am trying to fully understand is which forms we give them (like if we have to give them the NOTICE OF PROPERTY SUBJECT TO STATEWIDE RENT CAPS & JUST CAUSE EVICTIONS or any COVID-19 Relief/Protection forms), when we give it to them, if we need them to sign or just delivery of the notice is sufficient, and if there are any potential protections that the tenants have because of COVID-19.
Answer 7: Generally speaking, as long as your lease includes the required notice to the tenants that the single-family home is exempt from the statewide eviction and rent control law, sometimes known as AB 1482, you will not be subject to the just cause requirements of that state law. However, even if you were, terminating a tenancy for the owner’s child would be a permitted ‘just cause’ under the state law, if your lease allows it. Per AB 1482 “For leases entered into on or after July 1, 2020 [relative move-in rights] shall apply only if the tenant agrees, in writing, to the termination, or if a provision of the lease allows the owner to terminate the lease if the owner, or their spouse, domestic partner, children, grandchildren, parents, or grandparents, unilaterally decides to occupy the residential real property.
And the above also assumes that you are not covered by a stricter local city or county just case law, or a current eviction moratorium based on the COVID 19 pandemic laws that have been passed by many city and counties. You would need to check that before you serve your 60-day notice of termination of tenancy. And because terminating tenancies has become more and more complicated, with the advent of state and local ‘just cause’ laws, compounded by pandemic-related tenant protections, getting a clear legal opinion as to whether and how to proceed is recommended.
Question 8: I own a duplex built in November 1969. Both sides are rented at present. Does AB 1482 apply to this duplex? Where would I find the Statewide Rent control law?
Answer 8: Based on your description, if those units are not subject to a local rent control law, they 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 own and occupy one unit of a duplex in San Rafael (Marin County). The lease for the tenant in the other unit is up in two weeks, but I am concerned the tenant might not fulfill his commitment to move out. I served the tenant a termination notice, but I am worried as the tenant has spiraled into alcoholism due to losing his job during the pandemic. I also wonder where to draw the line between the landlord/tenant relationship and being a good citizen in terms of attempting to help the tenant seek help for alcoholism, etc.
Answer 9: There is not much you can do in advance to ensure the tenant will vacate, but ‘wait and see’. And, because of local and state rent and eviction control laws, it is possible that the tenant has no legal obligation to vacate even at the expiration of the lease. But as owner-occupied duplexes are generally exempt from the ‘just cause’ provisions of the state eviction control law, and the San Rafael ordinance only applies to three-unit buildings or more, your duplex is likely exempt from those provisions. However, if you have communicated your intention not to renew the lease, that is about all you can do, and then wait and see what happens. If the tenant fails to vacate, you should contact competent legal counsel and get advice regarding your response to that event.
As to your concern for the tenant’s personal situation, and how you might provide assistance without violating the boundary between landlord and tenant, that is beyond the scope of this column! Obviously, you would balance your concern for the tenant with a healthy respect for the tenant’s privacy, etc. But I think that is a question better posed to a qualified social worker.
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.