This article was posted on Friday, Oct 01, 2021

Question 1: As always, any updates on the state of the courts and unlawful detainers?

Answer 1: As reported in last month’s article, California again has updated its comprehensive state law directed at protecting tenants from eviction for non-payment of rent. Originally passed as AB 3088 in August 2020, updated by SB 91 in January, AB 832 was passed June 28 and essentially extends all the provisions of the earlier versions that were set to expire June 30, through September 30. 

As of this writing, it remains to be seen whether the state law will be extended, yet again, as it approached the September 30 expiration date. Should it expire, and contrary to earlier versions, it contains restrictions on the ability of local jurisdictions to resume local eviction protection ordinances through March 31, 2022. However, as noted in a response below, it is anticipated that some jurisdictions, most notably San Francisco, will take action to extend its moratoria through the end of 2021. However, I believe if it does so, it will face court challenges to its legal ability to do so. 

Question 2:  Is a landlord in Concord exempt from AB 1482, to evict a tenant for no fault-just cause to sell a single-family home rental or to go out of the rental business?

Answer 2:  Single-family homes are conditionally exempt from AB 1482 (the law passed in 2019 to extend rent and eviction control statewide; not to be confused with the recent pandemic state legislation such as the current version AB 832). Below are the conditions that need to exist before exemption applies. But note that while AB 832 is in place (currently through the end of September), there are other issues that must be addressed before issuing a notice of termination of tenancy to a SFD tenant.

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Residential real property that is alienable separate from the title to any other dwelling unit, provided that both of the following apply:

(A) The owner is not any of the following:

(i) A real estate investment trust, as defined in Section 856 of the Internal Revenue Code.

(ii) A corporation.

(iii) A limited liability company in which at least one member is a corporation.

(B) (i) The tenants have been provided written notice that the residential property is exempt from this section using the following statement:
“This property is not subject to the rent limits imposed by Section 1947.12 of the Civil Code and is not subject to the just cause requirements of Section 1946.2 of the Civil Code. This property meets the requirements of Sections 1947.12 (d)(5) and 1946.2 (e)(8) of the Civil Code and the owner is not any of the following: (1) a real estate investment trust, as defined by Section 856 of the Internal Revenue Code; (2) a corporation; or (3) a limited liability company in which at least one member is a corporation.”

(ii) For a tenancy existing before July 1, 2020, the notice required under clause (i) may, but is not required to, be provided in the rental agreement.

(iii) For any tenancy commenced or renewed on or after July 1, 2020, the notice required under clause (i) must be provided in the rental agreement.

However, even if the tenancy is exempt from the provisions of AB 1482 (the statewide rent and eviction control law that passed in 2019), you will not be able to evict the tenant before October 1 unless you have a ‘just cause’ ground to terminate the tenancy, due to AB 832, the state law that mostly governs the Covid non-payment of rent landscape. The statute does not seem to prohibit serving a notice of termination before October 1, so you should be good once the notice expires. 

Also, regarding ‘going out of the rental business,’ that right is provided by the Ellis Act, and an action under that law is exempt from the state and local eviction restrictions. However, resorting to the Ellis Act is a relatively complicated effort, and so should normally be used only when no better option is available, and after consultation with qualified counsel.

Question 3:  I am planning on raising my rent on my Mill Valley tenants November 1st of this year to $4,100.00. I have not sent my tenants any notices about any of the COVID exemptions. The one-year lease started in 10/19 and went month-to-month 11/20. The rent – $3,800.00 – has not changed since lease inception. What forms am I required to serve the tenants? I am assuming a 30-day notice is still ok because I have not raised it in years.?
Answer 3: Assuming there is no local Mill Valley or Marin County restriction on rent increases related to COVID, you should be entitled to increase the rent if you have taken the steps necessary to exempt the single-family home from statewide rent control (AB 1482), as discussed above. That basically requires that you have provided the tenant notice that the property is exempt from rent control. Assuming all of that, a simple 30-day notice changing the terms of tenancy, a form of which AOA has in its forms list, notifying the tenant of the rent increase, and the effective date, and then mailed or delivered to the tenant, should be enforceable. But if the increase is over 10%, however, you will need to give a 90-day notice.

Question 4: We are wondering if he can ask the following on lease applications:

  • How long do you plan to stay?
  • What type of animal do you have? (If they have a pet)
  • Do you plan to get an animal? (If they don’t have a pet)

Answer 4:  My research did not find any law preventing a lessor from asking questions about the type of pet or intention to get a pet. According to one reputable source, it suggests tenant screening procedures comply with the following:  Before entering into a residential lease with a tenant, a landlord should require prospective tenants to complete a rental application. There is no statutory form of application in California. Various apartment associations have a standard form that can be used by its landlord members. 

Concerning the question about how long a prospective tenant plans to stay, it does not appear to fall under any of the protected categories under the various laws. I did not find any laws directly prohibiting the asking of such a question. However, it is potentially a tricky area, as, for example, San Francisco considers it evidence of bad faith if a lessor rejects an elderly applicant on the basis that he or she might become a ‘protected tenant’ after reaching the required ten years of occupancy (which is shorter in other local rent-controlled cities like Oakland).

Question 5:  Do you know whether the moratorium on commercial evictions in Hayward has expired or remains in effect?

Answer 5: The Hayward City Council did not extend the Commercial Eviction Moratorium beyond June 30, 2021. Please note that while the moratorium does not apply to any rent due beginning July 1, 2021, there is a stay provision of 180 days following the expiration of the moratorium for any action to recover possession based on rent due while the moratorium was in effect. the City of Hayward has the authority to extend its commercial eviction moratorium under the Governor’s Orders. But the City must act to extend and it is not automatic. That is why some other cities acted to extend their commercial moratoriums. 

Question 6:  Assuming the state eviction moratorium does not extend beyond September 30, 2021, when should I serve 15-Day notice to pay rent or quit to my San Francisco? The tenant has not paid rent since August 1, 2021.
Answer 6: I see no reason to hold off on serving a 15-day notice demanding whatever rent might be due, but you must be sure to use the proper notice for the relevant time regarding any rental payment that was not made. I anticipate San Francisco will try to extend its moratorium through the end of the year, though they, as a previous article response mentioned, are evaluating the concept of preemption by the state law. However, my expectation is that the city will extend its moratorium, and deal with the preemption issue through court rulings brought by owners such as yourself, who will argue the City is legally preempted from taking such action.

Question 7:  Tenant has asked for an emotional support help (ESA), a dog, in an apartment with no yard. I know I have to allow it with proper documentation, but I’ve already allowed her to have a pet cat. Can I ask her why her cat can’t be her ESA? 

Also, prior to her requesting an ESA, I was planning on giving her a 30-day notice to move out in October. She’s month-to-month and that would be within the first year. Could she claim that I did it willfully due to her request for an ESA? 

Answer 7: I have not heard of a tenant who needed both a cat and a dog as emotional support animals. It would depend on the medical documentation. If a qualified medical professional issued a medical opinion towards that need, after having evaluated the patient, then I assume the reasonable accommodations rule would require the additional exception to your ‘no pet’ rule. 

As to a notice to terminate a tenancy after an ESA has been requested, even where the decision was made prior to the request, unquestionably the tenant, and fair housing providers that assist tenants, could claim that your termination was retaliatory. There’s no easy answer to that potential dilemma. If questioned, you would need a reasonable explanation for the termination that was unrelated to her ESA request.

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