Below are questions asked by rental property owners regarding California rent control laws followed by answers provided by Attorney Richard Beckman.

 

Question 1: Is there a bill in the Legislature that is supposed to end the Ellis Act?

Answer 1:  AB 854, which was moving forward in the legislature and appeared to be heading for passage, would not have ‘ended’ the Ellis Act (the state law from 1985 that guaranteed a property owner the legal right to ‘go out of business’, i.e., remove all rental units on any given parcel from the rental housing market, which meant all tenant/occupants would be evicted as a result of invoking that right). However, it would have significantly limited its use. 

Though it appears that the bill will not become law this year, as January 31 was the deadline for passage, it may be resurrected next year, as a new measure. In brief, the current version would have prohibited property owners who have owned rental accommodations for less than five years from using the Ellis Act to withdraw rental accommodations. There was an exception for ‘small property owners’ (owners of accommodations who are natural person, who own no more than two properties, and who own no more than a total of four residential units). 

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The measure was designed to limit ‘developers’ from buying existing occupied buildings and then, via the Ellis Act, emptying the buildings of tenants, for, typically, conversion of the units to ‘tenancy in common’ units, or, where otherwise allowed, to condominiums. Reports from the internet attribute the lack of passage to a concerted effort by property owners, who reached out to their various elected representatives, and successfully persuaded enough legislators to withdraw support to effectively torpedo the measure.

 

Question 2: Am I able to sue in small claims court for the unpaid back rent at this time given the Alameda County moratorium?  
Answer 2: Yes, in part.  As you probably know, Alameda County continues its moratorium on almost all evictions, including those based on rental defaults, until 60 days after the expiration of the local health emergency, which remains an unknown event. It also imposes restrictions on seeking unpaid rent by a ‘regular’ civil lawsuit (e.g., a small claims case, but not the eviction lawsuit known as an ‘unlawful detainer.’).

For tenants who can demonstrate a financial hardship due to COVID-19, the ordinance allows a 12-month repayment period (note that late fees may not be sought). In other words, the tenant has 12 months from the date that rent was missed to pay it. For example, rent missed on November 1st, 2020 must be repaid by November 1st, 2021, rent missed on December 1st, 2020 must be repaid by December 1st, 2021, and so on. If the tenant is unable to repay missed rent within 12 months from the time it was due, then the amount is converted to consumer debt. This means that the landlord can sue to collect the remaining amount, but the tenant cannot be evicted over their inability to pay rent during the covered period. 

Note: AB 832 may impact Alameda County’s ordinance on the timeline for repayment. In brief, it states that ‘regardless of any local ordinance repayment timeframe, lessors may sue to collect unpaid back rent if the provision in effect on August 19, 2020 (which the Alameda ordinance was), required the repayment period to commence on a specific date after May 1, 2022, or conditioned commencement of the repayment period on the termination of a proclamation of state of emergency or local emergency (which the Alameda county ordinance does), the repayment period is deemed to begin on May 1, 2022.’ It is not clear whether by this language AB 832 allows the owner to seek all unpaid rent via ‘regular’ civil lawsuit as of May 1, 2022, or that the latest a 12-month repayment period may begin is May 1, 2022. The second interpretation would have little effect, as it appears even the Alameda County ordinance allows for unpaid rent lawsuits to begin 12 months after the unpaid rent accrued, rather than after the moratorium is ended. Stay tuned for additional developments on this issue. 

 

Question 3: Is Berkeley removing the Ellis Act as a permitted eviction ground? I think it was originally included in the eviction ban, but then it was allowed, but now it’s going to change back in April?

Answer 3:  If you’re confused, you are not alone. On December 8, 2020, the Berkeley City Council amended their Covid- Emergency Response Ordinance to remove the Ellis Act exception as grounds for eviction during the State of Emergency, thus barring Ellis Bill evictions. You can access the amended ordinance by going to the City’s website and looking at the 12/8/2020 Special Meeting Annotated Agenda (the 4:00 p.m. mtg). The actual “new” ordinance can be found there. But then, as we know, AB 832 prohibited any amendments such as these from taking effect until April 1, 2022. Thus, that is the reason why the “new” Berkeley Ordinance can’t be found in the Municipal Code section of the City Clerk’s webpage. A Berkeley Rent Board staffer indicated that the Board intends to add some caveat language to the link, but it will offer no opinion as to whether a challenge to this amendment would be successful. But when all is said and done, it may well be that Ellis Act termination notices served now, which require 120 days to expire, will be ineffective after April 1.

 

Question 4: Can we require a prospective tenant moving into a cottage on our property to be fully vaccinated? They will be accessing a laundry area in a portion of our house.
Answer 4:  That is a very interesting, though not unexpected, question. My initial response, without the benefit of research, was that I was not aware of any restriction on a landlord’s legal right to require a prospective tenant to show proof of vaccination as a condition of an acceptable application, much like proof of sufficient income, or that non-vaccinated persons constituted a ‘protected’ class, against whom such restrictions would otherwise not be permitted.

However, after researching the issue, and the state’s response to housing-related Covid issues, I was compelled to revise my response to add the information below. The Department of Fair Employment and Housing (DFEH) booklet on Covid Housing Guidance can be found here – https://www.dfeh.ca.gov/wp-content/uploads/sites/32/2020/04/DFEH-Housing-Information-on-COVID-19-FAQ_ENG.pdf)

Below is a reprint of the relevant portions. 

Do California fair housing laws prohibit discrimination and harassment against tenants, both current and prospective, because of actual or perceived disability? 

Yes. It is unlawful for a housing provider to harass, discriminate against, or treat less favorably a tenant or resident, because of the person’s actual or perceived disability. A disability is a condition that causes a limitation to a major life activity and includes both physical disabilities and mental disabilities (including mental health conditions). COVID-19 infection can lead to disability, especially if it results in inpatient care, continuing medical treatment, or supervision by a health care provider. COVID-19 infection may also lead to disability if it leads to conditions such as pneumonia. COVID-19 infection may also exacerbate existing disabilities.

May a housing provider inquire into a tenant’s actual or perceived disability related to COVID-19 when make a housing decision? 

It is unlawful for a housing provider to ask any prospective or current tenant about the person’s actual or perceived disability, including a disability related to COVID-19. Similarly, a housing provider may not require a tenant to move out because the housing provider believes the tenant has a disability related to COVID-19, or require a tenant to show proof that their disability is unrelated to COVID-19.

The primary concern is that inquiring about covid vaccination status is tantamount to asking about a person’s actual or perceived disability. This is because from the owner’s question it follows that she is worried about the applicant’s Covid-19 status, and basing a rental decision on whether the prospective tenant is vaccinated (or not), would constitute “ask[ing] a prospective or current tenant about the person’s actual or perceived disability, including a disability related to COVID-19”, and so a violation of the law against discrimination.

In summary, I don’t believe that this additional information clearly answers the question whether an applicant can be asked about vaccination status (as opposed to asking about actually having or had Covid-19), or be required to be vaccinated as a condition of tenancy. However, very few property owners want to be the test case for such issues, so the ‘safe’ approach is to avoid asking applicants about vaccination status, or requiring vaccination as a condition of the application.

 

Question 5: We are issuing a Notice of Belief of Abandonment today. Our question is, when the legal tenant abandoned the unit, and a few people remained to occupy the unit, what is the process to remove them? What other document is required to be issued with the Notice of Belief of Abandonment? How many days until this notice is served can we enter and secure the property?

Answer 5: That is a very difficult situation, as the statute governing the Notice of Belief of Abandonment (NBA) – provided at Civil Code 1951.3 – does not contemplate in its text unknown occupants in the property after an NBA has been served and the 18-day period for the tenant to respond has passed with no response. As the statute states:

  1. f) The real property shall not be deemed to be abandoned pursuant to this section if the lessee proves any of the following:

(2) At the time the notice of belief of abandonment was given, it was not reasonable for the lessor to believe that the lessee had abandoned the real property. The fact that the lessor knew that the lessee left personal property on the real property does not, of itself, justify a finding that the lessor did not reasonably believe that the lessee had abandoned the real property.

Leaving other people behind is not addressed. Attempting to lock such people out, assuming you could do so, would risk a wrongful eviction lawsuit from those occupants if they were subtenants. Practically, you might be better off bringing a non-payment of rent case, though that would involve more time and expense than seeking to recover possession via the NBA route. And, sadly, such efforts are still prohibited in Alameda County, so the lessor’s options are truly limited.

 

Question 6:  Is there a new mold booklet I need to provide my tenants? If so, can it be emailed to prospective tenants or should it be mailed to them?
Answer 6: The state law passed in 2001- the  Toxic Mold Protection Act ​(Senate Bill 732 §26148)  – directed the California Department of Public Health to, among other things, develop a consumer-oriented booklet that residential property owners will give to prospective tenants, providing written disclosure of the potential health risks that may result from exposure to mold.

It only took 20 years for the CDPH to comply, but they finally developed the booklet, titled ‘Information on Dampness and Mold for Renters in California’, and which may be obtained by visiting www.aoausa.com and simply downloading it from the forms section. 

The booklet, which explains the potential health risks and health impacts that may result from exposure to mold, was produced by the California Department of Public Health (CDPH) in 2020, in both English and Spanish versions. As of January 1, 2022, this booklet must be given to prospective residential tenants prior to entering the rental or lease agreement, in accordance with the 2001 Toxic Mold Protection Act.

The applicable statute does not indicate how it may or must be provided to the tenants, and the applicable statute only states “The [booklet] shall be provided to prospective residential tenants prior to entering the rental or lease agreement.” Thus, there does not seem to be any restriction on how it is provided to the prospective applicant or new tenant. The surprising aspect is that the statute does not require the booklet be provided to existing tenants, though I believe that is an oversight. 

 

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.

Read more articles from the March edition of the AOA Magazine