Question 1: I gave a 60 days’ notice on July 31, 2015 to my Alameda tenant raising her rent from $1,400.00 to $1,500.00 to be effective 10/1/15. Her last rent increase was on 8/14/14 from $1,300.00 to $1,400.00.  I was surprised to find out that the City of Alameda has a recent new rent ordinance, and the tenant is now taking me to the rent review board.  I received a letter from the RRAC notifying me to appear at a November 2nd committee hearing. 

The committee secretary told me that even though the rent increase notice was given well before the October 1st adoption of the ordinance, I still have to show up to the hearing, per the city attorney, who said the new rent of $1,500.00 was effective October 1st, and the new ordinance became effective Oct 1st. I still feel this is a gray area (that I have to even show up, based on their statement).

Questions – 1) How does the rent review board have any jurisdiction over rent increases when the City of Alameda has no rent control? 2) Does this board have any weight to force a owner/landlord to not be able to raise the rent?
Answer 1: On September 1, 2015 the Alameda City Council adopted two ordinances: Ordinance 3131, pertaining to rent increases, and Ordinance 3132, adding the Rent Review Advisory Committee to the municipal code. According to the City of Alameda’s website, the purpose of the Rent Review Advisory Committee (RRAC) is to review complaints of significant rental increases, and provide a neutral forum for renters and residential property owners to present their views.  It evaluates increases, determines whether they are ‘equitable,’ and, if not, attempts to mediate a resolution acceptable to all parties. The Rent Review Advisory Committee does not issue  legally binding rulings, and can only make ‘recommendations’ as to the rent increase. However, the ordinance does require the landlord’s participation in the mediation process, with the penalty for failing to comply being a defense to any unlawful detainer for non payment of rent based on the increased rent amount.

As to your questions, according to Section 6-57.8 of Ordinance 3131, if the rent increase takes effect before the scheduled hearing, the rent increase is deemed effective. Thus, it would appear your obligation to attend, otherwise required by the Ordinance at Section 6-57.10, is moot. However, you might contact the RRAC and explain that finding, and request their confirmation that the matter is off calendar. Otherwise, you will have to decide whether to miss the meeting and proceed with the rent increase, or go, and waste your time.

Rent control laws come in all varieties, and this is one of the milder ones, but in your case, still aggravating.

 

Question 2:  What’s the latest on the San Francisco rent control amendments known as Kim 2.0? Is it as bad as they say?
Answer 2: As reported in last month’s edition, 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 was awaiting Mayor Ed Lee’s signature. Because the Mayor returned the proposed legislation unsigned on October 9, it was deemed approved and will take effect 30 days later, or November 8, 2015.

The amendments do add some burdens on landlords, but they are not as draconian as some have reported. The amendments can be separated between substantive and procedural changes. The substantive changes are those that give tenants additional rights to occupy the rental unit despite lease provisions that seek to limit the tenants’ rights.

The most substantive change is that tenants now have the right to add roommates up to a certain amount despite lease provisions that seek to limit the number or identity of occupants. Before the amendment, the absolute right to add roommates was limited to family members and ‘one for one’ replacements. The amendment allows the tenant to add non-family members to the unit, if the tenant complies with the application process, and the total number of occupants does not exceed the lesser of (i) Two persons in a studio unit, three persons in a one-bedroom unit, four persons in a two-bedroom unit, six persons in a three-bedroom unit, or eight persons in a four-bedroom unit; or, (ii) The maximum number permitted in the unit under state law and/or other local codes such as the Building, Fire, Housing and Planning Codes. It also gives the tenant the right to a ‘ten day notice to cure’ a subletting violation, rather than the current three days.

Another significant change is the provision that limits rent increases on vacant units. Previously, if a tenant vacated a unit, state law allows the owner to set the rent on the next tenant at market rate. However, now, if the tenancy was terminated by the owner based on a 30 or 60 day notice of termination, the rent for any subsequent tenant for the following five years must be set at the prior tenant’s rate. This is similar to the prior provision, that if a unit that was subject to an ‘owner move in’ eviction was rented within three years, it had to be offered back to the tenant at the tenant’s prior rent, or to any new tenant at that rate. The amendment extends that concept to other Civil Code Section 1946.1 terminations, and extends the rent increase limitation period to five years.

The provision regarding termination of the tenancy based on the tenant’s violation of a lease provisons was amended to provide that  the violation was “substantial,” and the “tenant fails to cure such violation after having received written notice thereof from the landlord.” However, this is not significantly different from existing law, as generally, a lease violation had to be ‘material’ in order to justify an eviction and the tenant generally had the right to cure the violation.

Some of the procedural rights tenants added include the right to have the landlord respond to the tenant in writing with a description of the reasons for the denial of a request to add occupants, or the tenant’s request shall be deemed approved by the landlord.

‘trap for the unwary’ was added by requiring that notices to vacate under Sections 37.9(a)(8), (9),  (11 ), and (14), state in the notice to vacate the lawful rent for the unit at the time the notice is issued. Old ‘owner move in’ or ‘removal from housing’ termination notices will be defective if they do not include this information.

The amendment also provides that the Rent Board shall prepare a written form that states that a tenant’s failure to timely act in response to a notice to vacate may result in a lawsuit by the landlord to evict the tenant and advice regarding the notice to vacate is available from the Board. The Board shall prepare the form in English, Chinese, Spanish, Vietnamese, Tagalog, and Russian and make the form available to the public on its website and in its office. A landlord shall attach a copy of the form that is in the primary language of the tenant to a notice to vacate before serving the notice, except that if the tenant’s primary language is not English, Chinese, Spanish, Vietnamese, Tagalog or Russian, the landlord shall attach a copy of the form that is in English to the notice.

In order to implement the new legislation, the Rent Board Commissioners held a special meeting of the Rent Board October 26, 2015 to consider possible amendments to Rules and Regulations Sections 6.15A6.15B and 6.15D and new Regulation Section 6.15E. A public hearing on proposed changes to the Rules and Regulations was tentatively scheduled for Tuesday, November 10, 2015 at 6:30 pm.

Question 3: We have a tenant who requested to get out of his lease agreement two months prior to its expiration. We were able to obtain new tenants and therefore allowed him out of the lease agreement. But, the house was rented for $165.00 less. When we refunded his prepaid final month rent, we deducted $330.00. Was this is a valid deduction?
Answer 3: The lost ‘future’ rent was not an element of security deposit damages that could be withheld from the Security Deposit (which the ‘last month’s rent’ will include), since he was not in default on owed rent, just in breach of the lease regarding future rent. However, given the amount, and assuming you provided the tenant an explanation (which would, on the other hand, be prima facie evidence of an unpermitted deduction), that will probably be the end of it.

 

Question 4: According to the City of Oakland, this year’s Allowable Annual Rent Increase is 1.7% (http://www2.oaklandnet.com/Government/o/hcd/o/RentAdjustment/). If I give one increase of 1.7% to the tenants this year, and I did not give any rent increase to the tenants back in 2013 and 2014, will I be able to apply any “banked” prior years (2013 & 2014) increases, in addition to next year’s Allowable Annual Rent Increase?
Answer 4: Yes. You can add any annual increase amount that has not already been imposed to the annual rent increase notice you serve, under the concept known as ‘banking.’ In other words, if you served a notice of rent increase July 1 to add the amount allowable under the 2015 period, you would not be able to add any banked years until the next increase date, or July 1 of 2016, at which time you could include any years not already included in a prior rent increase notice.

 

Question 5: It has been my understanding (based in part on various AOA workshop presentations) that, when denying an applicant for reasons entirely unrelated to his/her credit/consumer reporting information, there is no requirement to provide a written notice of declination. However,  I was told (by a non-lawyer, tenant screening company rep) that 2011 amendments to the FCRA &/or the Dodd-Frank legislation in fact require a written “notice of adverse action” for every decision to deny, no matter what it is based on. (I asked, but did not get any citations to support this assertion.) I am skeptical. If, for example, I decline to rent to an applicant solely because his/her former landlord says s/he wantonly damaged the property, bothered the neighbors and never paid the rent on time, is a written notice to this effect in fact required?

Answer 5:  The Notice of Adverse Action requirement is only triggered if the applicant is being rejected based on information – in whole or in part – on a consumer report (credit report or tenant screening reports or even reference checking services). It is probably better to err on the side of caution, and provide the NOA if the information you are using to reject the applicant was provided by any such source that could be considered a ‘consumer report.’

Here is a federal website URL that may provide more details if you are still unsure.

https://www.ftc.gov/tips-advice/business-center/guidance/using-consumer-reports-what-landlords-need-know.

 

Question 6: We have a fourplex that has many children under 18 – we have sent letters about no throwing objects, riding bikes, etc. Is there a legal letter we can send about someone over the age of 18 to be with a child when they are out in the common area??

Answer 6: The landlord’s efforts to police common areas often run into conflict with the laws prohibiting discriminating against families with children. There is an entire whole body of law on what efforts are allowed, and which ones violate the law. According to one tenant’s lawfirm website, the following can be considered prohibited conduct by the landlord:

Other discriminatory actions may include:

  • Unreasonably restricting children’s use and enjoyment of the property by excluding children from certain parts of the complex.  For example, signs that say “No Children Allowed” or “No Children in the Pool” may constitute discrimination against families with children.
  • Imposing overly broad rules for the supervision of children in the complex (such as strictly requiring parental supervision, rather than mere adult supervision);
  • Imposing blanket curfews for minors in the complex;
  • Asking prospective tenants whether they are married;
  • Refusing to rent to prospective tenants because they are, or are not, married;
  • Refusing to take into account the combined income of people who intend to live together because they are not married;
  • Refusing to rent to families because they have children or because of the number of children they have, unless the family’s size violates the occupancy limit for the unit (generally, two people per bedroom plus one).  A landlord’s attempt to restrict the number of occupants beyond two people per bedroom plus one may be discriminatory.
  • Trying to “steer” tenants to a particular section of a community, neighborhood or development, or to a particular floor of a building because they have children, or otherwise based on any of the characteristics listed above; 

    In order to be on the safe side, you might contact the California Department of Consumer affairs (which publishes the brochure on general discrimination laws) and see if they can provide a template letter of the kind you request below. They may, in which case you should be in good shape by using it. Another source for such information are the various private organizations that provide advice and representation to tenants on issues related to housing discrimination, such as the Sentinel Project, which probably can provide some guidance. They are often the agency that makes the complaints on behalf of the tenants, so they should be able to advise what is proper and improper in terms of the landlord’s effort to control children’s behavior in the complex. You might also contact the DEFH, (contact info below) which is the state agency tasked with enforcement of housing discrimination claims, and which likely can provide such guidance –   Department of Fair Employment and Housing, Oakland Legal Unit, 1515 Clay Street, Suite 701, Oakland, CA 94612-1460.

     

    Question 7:  We have a tenant that has a bug problem. This tenant has screens on all his windows and he is insisting that we tape the screens. He said these “Tree Bugs” are getting into his apartments from the screens. We already have a pest control company who visits the entire complex and he said these bugs are seasonal and there is nothing more we can do. I have seen these bugs and they are pretty big and I am not sure how they are getting in from the screens. These screens are nice and fit on the windows. Can we get in trouble for not doing more?

    Answer 7: If your screens are properly fitted and affixed, they should not allow bugs to enter. If they are entering the unit because of defects in the screens, you may have some responsibility, but otherwise, I don’t see any claims the tenant can assert against you.

     

    Question 8: How long do we need to wait after sending the former tenants a letter to demand payment for unpaid rent before we can file a small claims case? Also, if we are missing their SSN, or new address, what’s the best method to locate them?
    Answer 8: Assuming the tenants have left the unit (the inference from your question), there is no waiting period to file a small claims case. As to locating the former tenants, that might require some astute internet search skills, or a private investigator who is skilled in finding people.

    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 rich@beckmanblairllp.com or by visiting the website www.beckmanblairllp.com