Q&A

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

Question 1:    Did the state renew the eviction moratorium law that was supposed to expire March 31?

Answer 1:  Yes. The original statewide law meant to address the pandemic rental crisis – AB 3088 in August 2020, was then superseded by SB 91 in January 2021, which created the rental assistance program to provide rent payments to qualifying tenants and property owners.

That bill, set to expire June 30, 2021, was extended by AB 832, which continued the eviction protections of the prior bills through September 30, 2021 and also provided for complete rent reimbursement to the landlord, rather than the 80% amount from SB 91. AB 832 also allowed for use of a three-day notice beginning October 1, 2021, replacing the 15-day notice for nonpayment of rent that had been required under the prior versions of the statutes. It was widely anticipated to be the last extension of the law, and provided for a return to ‘normal’ non-payment of rent laws (e.g., a return to the owner’s right to serve a pre-pandemic three-day notice to pay or quit) as of April 1, 2022. However, because the rental assistance program known as housingiskey.com has a large number of applications pending, the legislature decided one more (presumably final) extension was necessary, and so passed AB 2179, which the Governor signed into law March 31.

AB 2179 will extend the current rules regarding non-payment of rent cases through June 2022, meaning property owners will still be able to serve a three-day notice to pay or quit, but will still be required to seek payment of the unpaid rent through the housingiskey.com program, and may not file an unlawful detainer if the tenant has an application for rental assistance pending as of March 31 (no new applications will be accepted after that date).

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On the ‘bright’ side, the new law also extends until June 30, 2022, the prohibition on local ordinances that seek to provide yet more protections to tenants facing eviction for any reason. Several local jurisdictions were looking forward to the expiration of that limitation so they could pass additional tenant protection measures. One such ordinance that was set to take effect April 1 in San Francisco would have created a Covid-19 related defense to a non-payment of rent case brought in San Francisco for unpaid rent due after April 1. This new ordinance – Ordinance 34-22 – would have allowed a tenant being sued for an unlawful detainer based on non-payment of rent to offer evidence that the reason for the inability to pay rent was due to a Covid-related event (i.e., lost income, illness etc). That new law is, or should be, effectively stayed during the pendency of AB  2179.

Question 2: Did San Francisco just pass a new law that requires the landlord to give a tenant a ten-day notice to cure before a three-day notice can be served?
Answer 2: As last month’s column described in more detail, yes, it did. The new ordinance would mimic the law in place in Oakland, which has required a ‘pre-notice notice’ since its eviction ordinance (Measure EE) was amended to include that additional notice requirement. However, as a result of a lawsuit filed by local property owner associations to challenge the new rule before it was to take effect, a San Francisco Superior Court judge issued an Order temporarily staying the 10-day Warning Notice Requirement pending resolution of the case. The Court set a hearing on the plaintiffs’ lawsuit for May 17, 2022, at which time, the court will consider more detailed arguments by both sides, and either continue the stay, or dissolve it. Either way, we can expect the losing side to seek appellate review. The case is San Francisco Apartment Assoc. et al. v. City and County of San Francisco, Superior Court Case No. CPF-22-517718.

Question 3: Not so much a legal question, but I was wondering when the AB 1482 CPI maximum rental increase form will be updated for the current CPI 2022?

Answer 3: The state will provide the new figures for 2022 in May and June. Rent increases at the revised amounts for this year will begin August 1, 2022. The AOA CPI grid that is available to members from the AOA website will be updated when the information is received as a press release.

Question 4: I was having issues with a tenant who was violating his lease by bringing a lot of junk on the property and leaving it outside on the grounds as well as stuffing his unit with used furniture, small appliances and used clothing. I met with the tenant and he agreed that he was violating his lease, he would discontinue such practice, and if he continued to do so he signed a consent to move out if I gave him a 60-day notice for repeat violation.

He did violate the lease in the same manner, so I served him a 60-day notice terminating the lease effective 1/31/22. He paid rent until 1/31/22.

Despite several attempts on my part, I have not heard from him, but last week, he piled loads of junk all over the front yard and next to the dumpster. Can I post a notice to enter the unit? When I enter the unit, if there are still personal belongings there, can I remove them to clean up the place so I can re-rent the unit?

Answer 4:  Generally speaking, the landlord can only legally recover possession from a tenant in one of three ways – by the tenant expressly relinquishing possession (by a signed document, or returning the keys), by a court order, or by use of the “Notice of Belief of Abandonment” (NBA). When the rent is unpaid for more than 14 days, and you have a genuine belief that the tenant has in fact abandoned the unit, state law allows an owner to serve what is termed a “Notice of Belief of Abandonment”.  AOA offers a form on its website.

If it’s properly served, the tenant has a statutorily provided time (18 days if the notice is mailed), to provide a written notice to the landlord stating the tenant’s intent not to abandon the real property, and provide an address at which the tenant may be served by certified mail in any action for unlawful detainer of the real property. If no such response is served by the tenant, AND the landlord reasonably believes the tenant has vacated, the landlord is legally permitted to recover possession.

However, that subjective element – the landlord’s reasonable belief that the tenant has moved but failed to communicate that to the landlord – makes the process subject to a later claim by the tenant that he or she had not vacated but failed to receive the notice.
As for any remaining personal property, the owner can, and should, serve the tenant with the companion ‘Notice of Right to Reclaim Abandoned Property’, with the NBA, which notice gives the tenant – if in fact he or she has vacated – the same period of time to remove any property left behind, or it may be disposed of, or, if valued above $700, sold at auction.

Question 5: My tenant filled out the AOA rental application and checked “No” on the box about evictions. We signed a rental lease agreement but no money or keys were exchanged. Several hours later her previous landlord returned my call and told me about a 5-month eviction process he had to do with the tenants I just signed to a contract. I called the tenant to tell them I was cancelling the contract due to misrepresentation on the AOA application. Am I legally allowed to do this?

Answer 5: A material misrepresentation by an applicant regarding the applicant’s rental or employment history is a permitted basis to reject the applicant.

Question 6:  Tenants gave a 30-day notice that they were leaving. They were supposed to be out by March 3, however, as of March 21 they have yet to return the key. They are no longer staying there, but they still have belongings in and outside the unit. I have posted a 3-day notice. What are my options to take the unit back?

Answer 6: If you are in touch with the tenant, you should let the tenant know that until they surrender possession by returning the key, they are responsible for the rent. Sometimes, that is not clear to tenants who think they’ve moved out but haven’t yet removed all their belongings.

As for eviction proceedings, I assume that will not be necessary, as that would be, apparently under the circumstances, something that should easily be avoided by a little cooperation and communication with the tenants. You might also be able to take advantage of the Notice of Belief of Abandonment discussed in a prior question. However, if all else fails, a three-day notice for the rent would be appropriate, as long as it complies with the various provisions of AB 2179 (the new version of AB 832) regarding confirming the tenant has no pending application for rental assistance.

Question 7: I have a tenant who signed a yearly lease renewal on 2/1/2022. Then, he emailed me a 30-day notice of intention to vacate. I was reading the following online: he could be responsible for lost rent during the period the unit is empty, and he could lose his entire security deposit.   He’s supposed to vacate April 18th, 2022 and I’m not sure if he’s going to pay rent or will want to use his security deposit.  If he pays rent for the 18 days of April, how do I handle his deposit? Am I legally entitled to retain it due to the fact he broke the lease contract?

Answer 7: In addition to cleaning the unit to its pre-rented condition, and to repair damages beyond ‘normal wear and tear’, the deposit can be applied to unpaid rent that accrues up to the tenant’s last day of occupancy, plus the 21-day period by which the owner is required to account for the deposit. It may not be applied to ‘future’ damages such as breach of lease damages for unpaid rent for periods after that.  This can be confusing, but illustrated as follows: The tenant breaches a one-year lease with seven months remaining. The tenant is legally obligated to pay the remainder of the rent for the entire lease term. However, the owner has a ‘duty to mitigate’, which means trying to re-rent the unit to a new tenant, with any rent received from a new tenant applied to reduce the amount owed by the previous tenant. In this case, the first tenant moved out April 1, with rent paid through that date. The rent on the lease was $3,000.00 per month and the tenant had a $6,000.00 security deposit. On April 15, the owner finds a new tenant who also pays $3,000.00 per month, but not starting until May 15. Thus, the owner has lost $4,500.00 in lease breach damages by the first tenant (not counting amounts paid by the owner for efforts to re-rent the unit).

Assuming the tenant left the unit clean and undamaged, the owner is entitled to withhold $2,100 from the deposit. This is because the owner is also required to provide the departed tenant with an accounting of the deposit within 21 days of the tenant moving out. In this case, while the tenant owes $4,500.00 in unpaid rent for breaching the lease, the deposit may only be applied to unpaid rent that accrued within the 21 days after the tenant moved out, since that is the cut-off for the period the deposit can be applied to any unpaid rent. The courts have held that any other ‘future’ damages – those that are attributed to any period beyond the 21-day accounting deadline, or other damages such as the cost to re-rent the unit (broker fees, advertising etc) may only be sought by a separate action against the former tenant for those remaining amounts, via, for example, a small claims lawsuit.

Question 8:  We have a rental applicant for one of our condo units. The policy doesn’t allow animals. The applicant has an emotional support animal and submitted a notice from a doctor that claims he needs it. The doctor’s notice is dated 2019. As per AB 468 the notice needs to follow a certain format. When we asked for an updated notice, he is resisting, asking where does it say the notice needs to be updated. My question is – what is our course of action here? We’d prefer not to rent to a person who is already being confrontational from the start, but then of course, we don’t want to cross the law.

Answer 8:  You should let the tenant know that effective January 1, 2022, there are new requirements for establishing a tenant’s need for an emotional support animal (ESA). You can direct her to that statute, or provide her with any number of references to it. A state website provides a FAQ that can be found here – https://bbs.ca.gov/pdf/law_changes_2022/ab_468_faq.pdf.  The bill enacts specific criteria that must be met before a health care practitioner can issue documentation related to an individual’s need for an ESA. Specifically, the provider must 1) have a valid, active license and include the effective date, license number, jurisdiction, and type of professional license in the documentation; 2) have jurisdiction to provide the documentation; 3) establish a client-provider relationship with the individual for at least 30 days prior to providing the documentation requested for the individual’s need for an emotional support dog and 4) complete an in-person clinical evaluation of the individual regarding the need for an emotional support dog.

Absent the applicant’s establishing her need for an ESA under the new requirements, the owner should be free to reject her request to have a ‘pet’ in an otherwise ‘pet-free’ housing environment.

Richard Beckman
Richard Beckman

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.