This article was posted on Saturday, Oct 01, 2016

Question 1:  I own a condominium in Oakland. How much can I legally raise the rent on a month to month basis? The tenant has been there more than a year.
Answer 1:  If the unit is a condominium, it is not subject to rent control, subject to some exceptions, including where the preceding tenancy was terminated by the owner with a 30-day or 60-day notice to terminate the tenancy (pursuant to Civil Code Section 1946). Also, in cases where the condominium has not been sold separately by the subdivider to a bona fide purchaser, rent control still applies. So, be aware of those two items in particular.

 Also, if a Tenant Petition is filed challenging a rent increase, and the owner believes the unit is not covered by the Ordinance, the owner must respond to the petition to prove the unit is exempt.  An owner also has the right to file a Landlord Petition to obtain a Certificate of Exemption. 

Question 2:  I sent my former tenant a certified letter with itemized deductions and a refund of the balance of her deposit (I deducted about $800 from her $3,700.00 deposit), well within the 21 day deadline. There was confusion on my part as to her name (she had changed it during the tenancy but I forgot that and used the name on the lease) and forwarding address, and the letter was returned to me as undeliverable. I was able to locate her and send the letter again, but after the 21 day period.  She now threatens to go to court demanding that I pay her the full deposit. She is really trying to hold me to that 21 day period, but I believe my original effort should count.  Will I lose if she does take me to small claims court?
Answer 2:  As an occasional small claims judge (pro tem), if the deductions were legitimate, and the effort to return and account for the deposit was in good faith, I would not ‘ding’ you for the fact it did not reach her within the 21 day period based on your very unique facts. However, another judge hearing the same facts could reach a different result and agree with the tenant that the 21 day period is a strict time limit, and any mistakes by the landlord do not extend it.

Question 3:  We have a parking issue, I have posted signs NO PARKING signs in front of the garages, but people still park there (mainly a few tenants). Can I have a contract with a local tow company to tow them and make the tenant pay the charges? They also park in the FIRE LANE, I have issued warnings but they still violate it. Everyone has an assigned parking space.
Answer 3:  Having a vehicle towed from private property is a rather detailed process that is set out in Vehicle C ode Section22658.  However, set out below are the essential conditions under which a vehicle can be legally towed. There are consequences to both the towing company and the person causing the vehicle to be towed if the requirements of Section 22658 are not met, which include providing notice to the local law enforcement agency within one hour (if possible) of the tow, and to the owner of the vehicle (if known). It may be prudent to contact a local towing company in advance and arrange with that towing company a relationship for future tows, which may help insure compliance with Section 22658. If the statute is complied with, the owner of the towed vehicle will be responsible for the charges. Section 22658:  (a) The owner or person in lawful possession of private property… may cause the removal of a vehicle parked on the property to a storage facility that meets the requirements of subdivision (n) under any of the following circumstances:  (1) There is displayed, in plain view at all entrances to the property, a sign not less than 17 inches by 22  inches in size, with lettering not less than one inch in height, prohibiting public parking and indicating that vehicles will be removed at the owner’s expense, and containing the telephone number of the local traffic law enforcement agency and the name and telephone number of each towing company that is a party to a written general towing authorization agreement with the owner or person in lawful possession of the property. The sign may also indicate that a citation may also be issued for the violation. (2) The vehicle has been issued a notice of parking violation, and 96 hours have elapsed since the issuance of that notice.

(3) The vehicle is on private property and lacks an engine, transmission, wheels, tires, doors, windshield, or any other major part or equipment necessary to operate safely on the highways, the owner or person in lawful possession of the private property has notified the local traffic law enforcement agency, and 24 hours have elapsed since that notification. (4) The lot or parcel upon which the vehicle is parked is improved with a single-family dwelling.

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An owner or person in lawful possession of private property, causing the removal of a vehicle parked on that property shall notify by telephone or, if impractical, by the most expeditious means available, the local traffic law enforcement agency within one hour after authorizing the tow. An owner or person in lawful possession of private property, causing the removal of a vehicle parked on that property, or the tow truck operator who removes the vehicle, shall state the grounds for the removal of the vehicle if requested by the legal or registered owner of that vehicle.

An owner or person in lawful possession of private property causing the removal of a vehicle parked on that property is liable for double the storage or towing charges whenever there has been a failure to comply with paragraph (1), (2), or (3) of subdivision (a) or to state the grounds for the removal of the vehicle if requested by the legal or registered owner of the vehicle as required by subdivision (f).

A link to the Vehicle Code Section is here, and anyone intending to arrange for the towing of vehicles should read the entire code section.  

Question 4: I have a tenant that has been with us for many years. However, last night he was shot on the property, apparently over drugs. We have never experienced anything like that before. We want to serve notice to move. Do I have to give 60 day notice or is there another notice sooner than 60 days?
Answer 4:  Without knowing more facts, it’s impossible to say whether you could properly serve a three day notice to quit for nuisance, which would likely be appropriate unless the shot person was an innocent tenant. That would really be an injustice – shot and evicted in one week!  But your situation is beyond the scope of the AOA Q&A forum, which does not allow for specific legal advice on a specific matter, and so you should consult with your landlord-tenant lawyer for a detailed response based on additional facts.

Question 5:  What qualifies as “capital improvements” under the Oakland rent control law? I have a termite report with $50,000.00 plus in work we need to do. Am I allowed to pass this on to tenants? The regulation is a bit vague–it says it should be for tenant’s benefit. We need to replace a porch, and some of the framing. Thank you.
Answer 5:  You are correct that the ordinance definition of capital improvements is unclear in your situation (“Capital improvements means those improvements to a covered unit or common areas that materially add to the value of the property and appreciably prolong its useful life or adapt it to new building codes. Those improvements must primarily benefit the tenant rather than the owner.”). However, if the work has to be done, it has to be done, and the rent increase will likely be up to the Oakland rent board, as it would be the entity that would be making the decision on any rent increase based on capital improvements. However, I would be surprised if termite repairs would not be a capital improvement.


Question 6: At one of our Oakland properties a unit is shared by two people. Both are on the lease. It is a month to month rental at this point. One person wants to move out and the remaining tenant wants to get a new roommate.  Do we have an option of increasing the rent with a completely new rental agreement?  At this point the market value of this rental unit is much higher than their current rent. Thank you!
Answer 6: If the remaining tenant follows the process correctly, he or she will have the option to replace a departing tenant, and no rent increase is permitted just based on that tenant “one for one” exchange.

Question 7: I have had the same tenants or about 20 years. I cannot locate the original month to month agreements. I need to make some changes to it. Is it a good idea to make amendments to it, even though I cannot find it; or do I issue a new agreement and insert all the changes, and make the original agreement subordinate to the new agreement.
Answer 7: Since the tenants are on a month to month version of whatever rental agreement you originally had, and are not subject to a local rent control law, you can serve a brand new lease by including it with a  Notice of  Change of Terms of Tenancy, to make the new lease take effect 30 days after service, and that lease will become the new rental agreement between you and the tenants if they remain in possession after the notice period expires. That would probably be easier than trying to locate and amend the old agreement.

ALERTS AND UPDATES:           A member called about an SPOSFI article AOA reprinted in the July issue of the AOA magazine regarding San Jose rent control law, known as the Apartment Rent Ordinance (ARO). The article discussed developments in the law, such as allowing banked rent increases up to 17% within a 24 month period. The paragraph that raised concern states “On March 19, 2016, after a marathon session … the San Jose City Council finally voted, passing a number of amendments to the ARO. The second bullet point stated “Rent may be increased by 17% if more than two years passed since the last increase”. This language led the reader to believe that 17% every 24 months is the current allowance.

However, under the interim changes to the ARO passed in May 2016, rent increases may only be given once in a 12-month period. The maximum annual allowable increase is 5%. Beginning June 17, 2016, an Interim Ordinance will be in effect until revisions to Apartment Rent Ordinance are completed. The Interim Ordinance reduces the annual allowable rent increase from 8% to 5% and outlines the process for filing cost pass-through petitions.  

 The City Council has directed that changes be made to the Apartment Rent Ordinance. According to the rent board’s website, council staff anticipates that final revisions to the Ordinance will be completed by the end of 2016.  

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