Question 1: What is the status of the Richmond rent control law you mentioned in last month’s article?
Answer 1: On August 5, 2015, the Richmond City Council approved the “Rent Control and Just Cause for Eviction Ordinance” (Ordinance 20-15 N.S.) A copy of the Ordinance can be found online at http://www.ci.richmond.ca.us/ArchiveCenter/ViewFile/Item/6688.
However, a referendum backed by various opponents of the law was successful in placing the measure on hold, which had been scheduled to take effect Friday, Sept. 4th. Based on the referendum, the Richmond City Council must either repeal the ordinance or submit the ordinance to the voters by placing it on the ballot for the November 2016 election or calling a special election. There is no word yet on which option the Council will choose.
Question 2: Speaking of new laws, did San Francisco recently amend its Rent Ordinance to make it harder to evict tenants?
Answer 2: Potentially, yes. As of the writing of this column, the Ordinance 150646, sometimes known as “Kim 2.0” (for the sponsoring Supervisor Jane Kim) was passed by the Board of Supervisors on September 22, 2015, and is now awaiting Mayor Ed Lee’s signature. If the mayor signs it, it will take effect 30 days later. If the Mayor vetoes it, it goes back to the Board of Supervisors if there are enough votes to override the veto. If the Mayor does nothing within 30 days of receiving the proposed legislation, it will be deemed approved and will take effect 30 days later.
If approved, as is likely to be the case, the Ordinance amends the Administrative Code to: 1) prohibit, with certain exceptions, rent increases based on the addition of occupants even where a pre-existing rental agreement or lease permits such an increase; 2) prevent evictions based on the addition of occupants if the landlord has unreasonably refused the tenant’s written request, including a refusal based on the amount of occupants allowed by the rental agreement or lease; 3) require landlords, after certain vacancies, to set the new base rent, for the next five years, as the lawful rent in effect at the time of the vacancy; 4) require that there be a substantial violation of a lawful obligation or covenant of tenancy as a basis for the recovery of possession; 5) require a landlord, prior to seeking recovery of possession, to provide tenants an opportunity to cure the unauthorized addition of the tenant’s family members to the tenant’s unit; 6) require that if a landlord seeks to recover possession based on a nuisance, substantial damage, or substantial interference with comfort, safety or enjoyment, the nuisance, substantial damage, or substantial interference be severe, continuing or recurring in nature; 7) prevent a landlord from seeking recovery of possession solely because the tenant is occupying a unit not authorized for residency; 8) require landlords to state in notices to vacate for certain good cause evictions the lawful rent for the unit at the time the notice is served; 9) require the Rent Board to prepare a form in English, Chinese, Spanish, Vietnamese, Tagalog, and Russian stating that a notice to vacate may lead to a lawsuit to evict and stating that advice regarding notices to vacate is available from the Rent Board; 10) require landlords to attach a copy of the Rent Board form in the primary language of the tenant to each notice to vacate; and 11) require landlords to plead and prove in any action to recover possession that at least one of the grounds of Administrative Code, Section 37.9(a)-(b) stated in the notice to vacate is the dominant motive for recovering possession.
Stay tuned for further updates on this Ordinance.
Question 3: I own a five unit apartment building in Oakland and I have not regularly raised the rental rates. All of the rental agreements are month-to-month. I would like to raise the monthly rent on some of the apartments subject to the City of Oakland Rent Control limits, but I have one tenant who doesn’t make much money so I don’t want to raise her rent. Is there an issue with raising some units while not raising the rent on others?
Answer 3: It would be more an issue if you raised rent on only the one tenant, and not the others, which could be seen as some sort of selective action targeting one tenant. But as for not raising a low-income tenant’s rent, there is no law against cutting a tenant a break. There is the old saying, “no good deed goes unpunished” but your personal contribution to your tenant’s finances would not seem to impose any risk of backfiring on you. You can always impose a banked increase down the road if circumstances change.
Question 4: I have a tenant in my Oakland unit that will be subleasing his apartment to visiting professors from UC Berkeley. I don’t mind amending my rental agreement to allow for a sublease (subject to the terms of the Master Agreement), but should I add any extra protections given I won’t have direct control on who he selects as subtenants?
Answer 4: You have the right to approve proposed subtenants, which gives you some control over who he selects, though your right to reject a proposed subtenant must not be unreasonably exercised. The only item I suggest making clear is that the subtenants, even if approved, are not ‘original tenants’ and if they remain in possession after the master tenant vacates, they are subject to termination of the sub tenancy, or, alternately, a rent increase to market rate based on the provisions of the Costa Hawkins state law.
Question 5: Traditionally, we charge our tenants a non-refundable pet fee as opposed to a refundable pet deposit. One of our tenants is stating that we cannot charge in this manner. Is that so?
Answer 5: Your tenant is correct. The only non-refundable deposit or fee you can charge is the actual cost of running a credit check (not to exceed $45.99 per applicant). Any other deposit must be accounted for as set forth in Civil Code Section 1950.5, which all landlords are recommended to be familiar with, as security deposit disputes are probably the single biggest source of landlord-tenant small claims lawsuits.
Question 6: Our property is in unincorporated Alameda County (a triplex). We want to raise the rent but wonder if there is any limit on what we can charge?
Answer 6: If there is no local rent control (and there is not in unincorporated Alameda County), and the rent increase is not in retaliation for something the tenant did, or based on some other improper motive (such as discrimination), rent increases are only limited by market rates. But remember that if the increase is over 10%, the notice period is extended from 30 days to 60 days, plus 5 days if the notice is mailed.
Question 7: How many persons per bedroom are allowed in Gilroy, California?
Answer 7: Generally, two people per bedroom is considered the standard. However, your local building or planning code may allow for more, based on the square footage of the unit and how it is configured. For example, in San Francisco, the building code specifies the minimum amount of floor space for each occupant, and that code is based on a state-wide building code which Gilroy may also have adopted. You can check with your local building or planning department for that information.
Question 8: Would hiring a full service property management company reduce the apartment owners’ liability against lawsuits from tenants?
Answer 8: Having a full service property management company with an indemnity clause, and proper insurance, is probably the best you can do in terms of protecting yourself from claims by tenants, short of not owning rental property. Ultimately, the property owner will always be liable for any tenant claims, as a ‘matter of law.’ However, with insurance to defend tenant claims, and an indemnity agreement from the property management company to ‘hold harmless’ the owner for claims arising from the property manager’s actions or inactions, the owner has done what she can to protect herself from actual financial liability for such claims.
Question 9: I’m about to serve a 60 day Notice to Move Out (AOA Form 105B) on a tenant with a month to month rental. Should the Plaintiff be the Manager, who signed the lease, or the owner of record?
Also, we have had issues with the tenant about excessive noise late at night which we have documented. She complained that we are making her feel like she’s living in a prison. Do I first have to go the Cure or Quit route? If I don’t, am I opening myself to a retaliatory eviction because she complained to/about me?
Answer 9: As to your first question, regarding who to name on the Notice of Termination, it can be the manager or the owner. The bigger question, which hopefully you won’t face, will be who to name on the unlawful detainer if the tenant fails to abide by the notice. But again, either the owner or the manager can sign the Notice.
As to your second question, an attorney would need more background to provide a useful response, since terminations of tenancy and claims that it is based on retaliation are extremely fact-specific. But as a general rule, if the tenancy is being terminated because the tenant exercised a lawful right as a tenant, that would be a prohibited retaliatory eviction. However, a termination that simply coincides with the tenant’s exercise of a lawful right can be explained, and in fact the law requires that an explanation for the reason for the termination be included in the notice, despite the absence of any local ‘just cause’ ordinance. See Civil Code Section 1942.5(e), which provides:
(e) – “Notwithstanding subdivisions (a) to (d), inclusive, a lessor may recover possession of a dwelling and do any of the other acts described in subdivision (a) within the period or periods prescribed therein, or within subdivision (c), if the notice of termination, rent increase, or other act, and any pleading or statement of issues in an arbitration, if any, states the ground upon which the lessor, in good faith, seeks to recover possession, increase rent, or do any of the other acts described in subdivision (a) or (c). If the statement is controverted, the lessor shall establish its truth at the trial or other hearing.”
Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 24 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 415-871-0070; email [email protected] or by visiting the website www.beckmanblairllp.com