Below are questions asked by rental property owners regarding California rent control laws followed by answers provided by Attorney Richard Beckman.
Question 1: What is the latest on the lawsuits against the eviction moratoriums in Oakland and Alameda County?
Answer 1: As of November 21, when last checked, there is no news from the court as to either of the two cases submitted to the court on a motion for summary judgment September 29th (such a motion seeks to have the court decide the case without need for a trial). As reported in last month’s article, the case Williams et al v. Alameda County Board of Supervisors is a lawsuit in the Northern District of California federal court, filed in early March, and which requests the judge to, in essence, invalidate both the Alameda County eviction moratorium and the Oakland city version.
A related case – California Apartment Association et al v. County of Alameda et al (3:22-cv-01274-LB) only against Alameda County, makes many of the same arguments, and was also set for summary judgment hearing on September 29. Basically, the argument of both cases is that the city and the county have violated various constitutional protections. The district judge heard oral argument from the parties at the hearing, and has the matter under submission. At some point, almost certainly within 90 days of the hearing, a ruling will issue. If the motions are granted, invalidating the two ordinances, the city and county will likely appeal those rulings, and the primary issue will be whether or not the moratoria remain in effect pending the appellate process (if the motion is granted).
There was some action in the City of Alameda case against Alameda County – City of Alameda v. The Superior Court of Alameda County A165610 (which seeks to have the moratorium stricken as to incorporated areas like the City of Alameda). The appellate court issued the following instructions to the parties, to allow the Superior Court an opportunity to defend the court rule that prohibits the court from issuing an unlawful detainer summons except in cases relying on the Ellis Act, or in which the tenant poses a public health and safety concern (‘real party in interest’ is the actual defendant in the case):
“The petition herein questions whether respondent superior court erred by denying petitioner’s ex parte applications for permission to file unlawful detainer complaints against real parties in interest under Local Rule 1.8.1 and County of Alameda Ordinance Code 6.120.010 et seq (County Ordinance). Real parties in interest have neither appeared nor filed preliminary opposition to the petition as permitted by rule 8.487 of the California Rules of Court.
The court requests that respondent Alameda County Superior Court file informal opposition to the petition. (See Settlemire v. Superior Court (2003) 105 Cal.App.4th 666, 669.) “Although rare, respondent court may oppose the writ petition when: ‘(1) the real party in interest did not appear; and (2) “[t]he issue involved directly impacted the operations and procedures of the court or potentially imposed financial obligations which would directly affect the court’s operations.” ‘ ” (Id.)
Respondent court should address all claims raised in the petition, paying particular attention to petitioner’s claim that the application here of Local Rule 1.8.1 denied petitioner a forum to challenge the validity of the County Ordinance. In addition, respondent should address petitioner’s request to pursue its claims by way of this writ petition instead of petitioner’s concurrent appeals (case nos. A165630, City of Alameda v. Sinclair, and A165631, City of Alameda v. Sheehan). Respondent court should also address: (1) what role, if any, the County of Alameda should have in this proceeding and, if necessary, how best to involve the County; and (2) whether petitioner has other adequate remedies at law, including, for example, an action for declaratory relief.
Respondent’s points and authorities in opposition to the petition shall be served and filed on or before November 23, 2022. Petitioner may serve and file reply points and authorities responding to respondent’s opposition on or before December 9, 2022. Continue to stay tuned!
Question 2: What is Civil Code Section 1962 and should I be aware of it?
Answer 2: Civil Code Section 1962 is the state law that requires an owner or manager of residential rental properties to keep the tenant informed as to certain information regarding the owner and property manager, if any. The text of 1962 can be found here https://codes.findlaw.com/ca/civil-code/civ-sect-1962.html.
In brief, it requires an owner and manager, if any, to provide the tenant with a statement, in the lease or in a separate document, and then annually upon the tenant’s request, that identifies the owner and manager, and a person who can accept service of legal papers from the tenant, including lawsuits, as well as where and how rent may be paid. A recent case discussed the consequences for failing to comply with the statute, and ruled that: When an owner, successor owner, manager, or agent fails to comply with section 1962 ’s requirements to disclose and keep current specified information, the tenant, under section 1962.7, is excused from effecting personal service on them, and he is permitted to effect service of process by mail. There is no other penalty imposed on the owner for its failure to comply. However, when a successor owner or manager fails to provide the specified information, it also is prohibited from evicting the tenant based on unpaid rent accruing during the period of noncompliance. DLI Properties LLC v. Hill, 29 Cal. App. 5th Supp. 1, 9, 240 Cal. Rptr. 3d 306, 313 (Cal. App. Dep’t Super. Ct. 2018)
So, new owners should be much more careful to be in compliance, though all owners and managers should also comply.
Question 3: I am evicting a tenant in a triplex and she was served Friday. The main circuit breaker went out and she is without power. Do I have to fix it by law? Also, the city can red-tag her in 7 days for no power and make her leave?
Answer 3: As long as the tenant is legally entitled to possession, which is the case until she voluntarily vacates or is forced out by court order, she is entitled to habitable premises, including, obviously, electrical power, unless she caused the outage. As for the city ‘red-tagging’ the building, she would still have a claim against you if you allow this situation to deteriorate to that extent.
Question 4: The rental agreement with our tenant has a provision that allows us to re-enter and take possession of the premises if the tenant fails to pay the rent. However, I have been told that is an old lease provision that is not legal anymore. Can you provide any guidance?
Answer 4: Many landlords have had the same question over the years. If it is in the lease, why would it not be enforceable? The California Supreme Court dealt with that issue many years, ago, and made it clear that ‘self-help’ (as it’s sometimes referred to) in the form of an unpermitted entry to the tenant’s unit to enforce the tenant’s rent payment obligation (or any other lease obligation) is simply not an option. The Court’s ruling is worth reviewing, and is set forth in part below. However, the summary is that once a lessor is entitled to recover possession, typically after service of an appropriate notice, the lessor must proceed through the unlawful detainer (eviction) process, and can not simply enter and prevent the tenant from occupancy until a court has so ordered.
“Plaintiff was a tenant in defendant’s apartment house. The lease provided that the lessor had a right of re-entry upon the breach of any condition in the lease and a lien upon all personal effects, furniture, and baggage in the tenant’s apartment to secure the rents and other charges. One of the conditions was the payment of $132.50 rent on the first of each month. Plaintiff paid the rent for eight months. After she was two months in arrears in rent, defendant, without her consent and during her temporary absence, unlocked the door of her apartment, entered and removed her furniture to a warehouse, and refused to allow her to re-occupy the apartment. Thereupon plaintiff filed this action for forcible entry and detainer and for conversion of her furniture and other personal property. The jury returned a verdict of $6,500 for forcible entry and detainer and for conversion and $3,000 punitive damages.
Both before and after the enactment of the present forcible entry and detainer statutes this court held that ownership or right of possession to the property was not a defense to an action for forcible entry. The statute was intended to prevent bloodshed, violence and breaches of the peace, too likely to result from wrongful entries into the possession of others;
In Lasserot v. Gamble and other cases, the landlord entered pursuant to a lease granting him a right of re-entry similar to defendant’s right of re-entry in the present case. In each case the court held that absent a voluntary surrender of the premises by the tenant, the landlord could enforce his right of re-entry only by judicial process, not by self-help. Under section 1161 of the Code of Civil Procedure a lessor may summarily obtain possession of his real property within three days (assuming the tenant complies). This remedy is a complete answer to any claim that self-help is necessary. Jordan v. Talbot, 55 Cal. 2d 597, 601, 361 P.2d 20, 22 (1961) (italicized section added by author).
Question 5: The tenant has moved out. They still have items in the property, but have not relinquished the property over to management. What is the next move for us to take over the property? They were not evicted. They moved out on their own decision. How can I get access to property? They keep saying they will be done moving out in a few days. It has been over two weeks now.
Answer 5: Since we now know ‘self-help’ is not an option, I would recommend trying to work with the tenants in completing their move-out, and letting them know that they’re responsible for the rent until the keys have been returned to you and you have legally recovered possession. That might help motivate them to complete the process. Ultimately, if they do not cooperate, you may have to proceed through the unlawful detainer procedure, although a Notice of Belief of Abandonment might also be available in your situation. You will likely need legal guidance in either case.
Question 6: I recently had an incident where a tenant threatened another tenant while brandishing a knife. The tenant was arrested. I’d like to evict him (just cause) ASAP, but the fastest time frame seems to be 30 days according to AOA forms. Is there anything quicker? The victimized tenant is in the process of obtaining a restraining order against the perpetrator.
Answer 6: As you know, evictions in Alameda County and Oakland are quite complicated now. We had a similar case with a disturbing tenant, and we served a 24 hour ‘pre notice notice’, required under the Oakland regulations, and then followed it up with a three-day notice to quit. That case proceeded through the system and the tenant was evicted about 30 days after we initiated the process. But in that case, the tenant violated the 24-hour warning notice. In your case, if the tenant ceased his threatening behavior in response to the warning notice, you may not be able to serve the necessary three-day notice to quit.
If you were in any other city or county, you would likely be able to simply serve a three-day notice to quit without opportunity to cure, based on the severity of the incident. As far as how quickly the eviction process unfolds, that depends a lot on various factors, such as how the tenant is served with the lawsuit, whether the tenant defends it or defaults, etc. In the case discussed above, our client got lucky because the tenant failed to respond to the unlawful detainer lawsuit and we were able to get a default judgment and writ of possession to the sheriff relatively quickly.
Question 7: We heard of a fellow AOA member who tried to evict her tenant based on the public health and safety exception because the tenant fired a gun in his apartment that went through the wall or floor or ceiling of a neighboring apartment. However, apparently, the tenant convinced the jury but he should not be evicted. Then the tenant’s free attorneys went to court and asked for over $300,000 in legal fees, which the court apparently granted. Any thoughts on this rather nightmarish scenario?
Answer 7: Unlike many urban legends, there is significant truth to this one. The lessor hired an attorney to process an unlawful detainer against her tenant alleging that the tenant had shot the gun in his apartment and the bullet went through a neighboring wall. However, for whatever reason, the jury did not believe the lessor’s case, and found in favor of the tenant. Unfortunately, for the property owner, the lease she inherited from the people she bought the building from contained a provision that provided for an award of reasonable attorney’s fees to whichever side prevailed in an action related to the tenancy. Since the tenant prevailed, they were entitled to make a motion to the court requesting that their fees be reimbursed. The tenant did not actually incur any fees because they were represented by ‘free’ (public interest) counsel, but the law in this area allows for the recovery of fees even in such a situation.
The judge tentatively awarded approximately $270,000 to the tenant’s attorneys, though the lessor is asking the court to reduce that amount at a hearing this month. The primary lesson to take from this situation is to be sure that your attorney fee provision in your lease is limited or eliminated. We typically recommend our clients cap the amount of attorney’s fees that can be awarded at something like $2,500 or maybe $5,000. That may be enough to get the tenant’s attention, but should things go sideways and the tenant wins, not enough to devastate the property owner, as would likely be the case here.
Question 8: A tenant is currently on month-to-month agreement and paying rent, as well as making payments to pay down a balance owed due during COVID. Today, the tenant informed me that his girlfriend and her dog are staying at the property through December. Without changing the lease, what can be done to prevent the tenant’s girlfriend and her dog from causing damage or squatting in the apartment?
Answer 8: Generally, an unapproved pet or guest that violates the lease can subject the tenant to a three-day notice to cure or quit, followed by an unlawful detainer if the tenant fails to do either. There may be other facts involved that may alter that general scenario. But the original tenant is responsible for damage to the unit beyond normal wear and tear, regardless of the status of his or her roommate/subtenant etc. So, your right to hold that tenant responsible does not depend on getting any agreement from the tenant or the co-occupant. ‘Squatting’ (i.e., the new occupant holding over after the original tenant vacates) is more complicated, and depending on where the property is, may require a legal analysis before you proceed.
And a tenant who is paying past due rent along with current rent should be treasured!
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.