Below are questions asked by rental property owners regarding California rent control laws followed by answers provided by Attorney Richard Beckman.
Question 1: As always, any update on the lawsuits against the eviction moratoriums in Oakland and Alameda County?
Answer 1: In the City of Alameda’s lawsuit against the Alameda County moratorium (City of Alameda v. The Superior Court of Alameda County A165610), on January 12th the appellate court issued an order to the county’s superior court to either allow the City to proceed with its eviction cases or ‘show cause’ why not. But the appellate court order did not grant the request by the city of Alameda to rule that the county moratorium could not legally extend to the incorporated areas of the county, including the city of Alameda, which would have been a clear and complete victory.
Rather, the appellate court ordered the superior court to simply consider the City’s unlawful detainer application, under the local rule which prohibits unlawful detainers that are not based on the state Ellis Act or a public health and safety claim.
The appellate court ordered the superior court to “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.” Thus, “in exercising discretion under Local Rule 1.8.1(a), the trial judge should evaluate whether a legal assertion regarding Constitutional, statutory, regulatory, common or other law ‘is warranted under existing law’ or ‘can be supported by a good faith argument for an extension, modification, or reversal of the existing law’.” If the proposed filing satisfies this standard, then a trial judge arguably must permit the filing.
In other words, the local court must allow the city to argue that the county moratorium should not apply to incorporated cities. However, the superior court could reject the city’s arguments, sending the issue back to the appellate court to rule on that subsequent decision. Those events should all take place during February, so the issue should be clarified by the end of that month.
As to the challenge by other plaintiffs to the Oakland and Alameda County moratoriums, and as reported in the last edition of this column, on November 23, the federal district court judge issued an Order denying the motions for summary judgment filed by the plaintiff property owners who were seeking to have both moratoriums stricken as unconstitutional. In a report by a fellow apartment owner organization (one of the plaintiffs, the California Apartment Association) plaintiffs have asked for permission to seek an immediate appeal of that unfavorable ruling issued in November. A hearing on the request is slated for Feb. 2. Judge Laurel Beeler will have discretion in whether to certify the case for immediate appeal. If she grants the request, the Ninth Circuit Court of Appeal, too, will have discretion over whether to accept the immediate appeal.
As I wrote in the last month’s column, the County of Alameda at its December 20 meeting adopted a countywide eviction control measure, that also includes a prohibition on seeking an applicant’s criminal history (“Fair Chance Law”), and also requires a rent registry for rental units. This measure only applies to unincorporated areas of the county. There has been some confusion about when these measures take effect, with one published report in the San Francisco Chronicle stating that “The new law takes effect after the county’s eviction moratorium, put in place during the COVID pandemic, expires on April 30.” However, I was unable to find any official confirmation of this reported event, and the news article’s author never responded to my inquiry as to her source.
I had hoped this confusion would be clarified by this issue. However, despite references in several other news reports to the end of the eviction moratorium April 30 (see, for example, https://abc7news.com/housing-bill-alameda-county-fair-chance-landlord-background-checks/12599501/ “The ordinance will take effect in April 2023 when Alameda County’s eviction moratorium, put in place early in the pandemic, is set to expire”;
https://nlihc.org/resource/alameda-county-board-supervisors-approves-suite-tenant-protections -“The Board of Supervisors’ passage of the Fair Chance Ordinance …will take effect when the county’s eviction moratorium expires at the end of April.”), the only official information I have found is a request by one County Supervisor, David Haubert, requesting the board simply agree to put the issue on the agenda for discussion. Apparently, his request is set for hearing before the Board for January 24, after this article is sent for publication. So, as always, stay tuned!
Question 2: I filed suit in San Joaquin County for damages against a tenant who was evicted in June. The tenant did not answer the complaint. What forms (i.e., CIV100) do I need to fill out for default, default judgment, to set hearing, and to make remote appearance? I also need the form numbers to garnish bank account and car title.
Answer 2: You don’t mention if your suit was in small claims court or ‘regular’ superior court, but from the statement ‘the tenant did not answer the complaint’ it would most likely be in superior court. If a tenant defendant failed to appear at the small claims hearing, default judgment would likely have been entered at that time. But even in ‘regular’ superior court, getting default and default judgment entered in non-unlawful detainer (eviction) cases is relatively simple, and should be ‘doable’ by most self-represented persons such as yourself. But rather than try to detail both procedures, I suggest you go to https://www.courts.ca.gov/forms.htm, which is the county court’s website for default forms and assistance. But if you evicted the tenant through the unlawful detainer process (the only option unless the tenant left voluntarily), you should already have a judgment for possession and any unpaid rent you claimed, if non payment of rent was the basis of the eviction effort.
As for collection of the judgment, as with the default process, rather than attempt to detail that process here, I suggest you check the state court’s link to its ‘enforcement of judgment’ resources, which should give you a good start on understanding your options in that effort. That website can be found at https://www.courts.ca.gov/cgi-bin/searchsh-ENG.cgi?q=enforcement+of+judgments&spell=1&access=p&ie=UTF-8&output=xml_no_dtd&lr=&client=selfhelp_ENG&num=&proxystylesheet=selfhelp_ENG
Question 3: What percentage of rent can I raise for 2023 in Fresno?
Answer 3: This question was addressed last month, generally, but as a reminder, under the state rent control law AB 1482, a landlord cannot increase rent on a covered unit by more than 5% + local CPI (CPI = inflation rate), or 10%, whichever is lower. For Fresno County, and assuming no local rent control ordinance that might impose a lesser amount, the maximum annual rent increase under AB 1482 for any notice taking effect before August 1, 2023 is 10%, consisting of the allowable 5% base increase plus the 7.7% CPI increase, which together comprise the allowable increase, but capped at 10%.
The CPI reflects the percentage change from April 1 of the prior year to April 1 of the current year in the regional Consumer Price Index for the region where the residential real property is located, as published by the United States Bureau of Labor Statistics. If a regional index is not available, the California Consumer Price Index for All Urban Consumers for all items, as determined by the Department of Industrial Relations, has been used. A new CPI amount will be issued in or around April to determine the allowable rent increase for rent increases taking effect after August 1, 2023. Information regarding that development will be available from the AOA website.
Question 4: Can you explain the procedure for removing a tenant who currently has a month-to-month contract?
Answer 4: To terminate a residential tenancy which is subject to any form of state or local eviction control requiring a ‘just cause’ ground (which is just about every California residential property unless it comes under some very limited exceptions), requires first analyzing whether you possess such a ground (or are exempt from that requirement). Then, you need to have a proper notice served on the tenant communicating the basis for the notice of termination, and any other information required by the state or local statute or ordinance. It can be a rather complicated process, and not easily explained in a simple response to your inquiry. But, as with many other legal efforts, the state court website is often very helpful to educate the self-represented person, at least to get the basic understanding of most legal procedures. Here is a link to the California court website offering an overview of the unlawful detainer process which will provide you a more complete picture of the process. https://selfhelp.courts.ca.gov/eviction
Question 5: My Oakland rental house is a fourplex, with each unit a one-bedroom / one bath. One of my tenants moved in his sibling without our knowledge or permission. The City of Oakland rent board representative said that I need to serve them a 14-day notice to cure, basically saying I need to get the sibling information and add him to the lease agreement and only allowing 5% rent increase. The current rent is way below fair market value, and the water bill is currently 2.5 times more than average for the entire building. For some reason, this does not sound reasonable. Is there something we can do to increase the rent more than 5% or evict the existing tenant?
Answer 5: While the rent board staff (whether it be Oakland, Berkeley or any other) undoubtedly do their best to provide accurate information in response to tenant or landlord inquiries, it has been my experience they are not always right, and sometimes alarmingly wrong on the legal interpretation of their respective ordinances. However, their ‘advice,’ to the extent it represents the rent board’s official position on an issue, does carry a significant amount of weight with the court in terms of their recommendation and findings, so should be taken seriously. As the Oakland ordinance states, a violation of the subletting provision does require providing the tenant the 14-day opportunity to cure, and provides the owner with almost no grounds to object to that request. However, for purposes of a potential later ‘Costa Hawkins’ rent increase (an opportunity to increase rent to market rate when the last original tenant vacates), you should get specific legal advice before adding anyone, sibling or otherwise, to the lease.
To the extent that tenants are using more utilities, I believe Oakland has a rent increase petition process to allow that issue to be submitted to the rent board. Basically, you have to follow their rules, whether it makes sense or not.
Question 6: Can I charge tenants a flat fee each month for trash and water? Or can I have tenants pay their own trash bill? The owner is trying to cut back on expenses at his triplex. The building is in King City.
Answer 6: Assuming King City, or Monterey County, does not have a local rent control law, and if the tenancy is on a month-to-month basis, it is possible that you can serve a ‘notice of change in terms of tenancy’ adding that expense to the tenant’s rent, or making them responsible for it directly. However, that would probably be considered the equivalent of a rent increase, so would need to be within the amount permitted by the state law AB 1482 which establishes a rent limit on covered tenancies. As discussed above, currently that amount is 10% on an annual basis.
Question 7: I think this has been asked before, but I don’t recall the answer. Can I require a tenant who requests the reasonable accommodation of having a pet, called an emotional support animal by her doctor’s letter, post an additional deposit, like a ‘pet deposit?’ Also, can I limit the breed or size of the pet if it’s a dog? Thanks!
Answer 7: The California Code of Regulations at 2 CCR §12185, has addressed both of these questions and provided clear guidance. The short answer is ‘no’ and ‘no’.
Specifically, “An individual with an assistance animal shall not be required to pay any pet fee, additional rent, or other additional fee, including additional security deposit or liability insurance, in connection with the assistance animal…No breed, size, and weight limitations may be applied to an assistance animal (other than specific restrictions relating to miniature horses as service animals under the Americans with Disabilities Act);
Assistance Animals include ‘service animals’ and ‘support animals’, as described in subsections (1) and (2) below. As the regulations state, an assistance animal is not a pet. It is an animal that works, provides assistance, or performs tasks for the benefit of an individual with a disability, or provides emotional, cognitive, or similar support that alleviates one or more identified symptoms or effects of an individual’s disability.
(1) “Service animals” are animals that are trained to perform specific tasks to assist individuals with disabilities, including individuals with mental health disabilities. Service animals do not need to be professionally trained or certified, but may be trained by the individual with a disability or another individual. Specific examples include, but are not limited to:
(2) “Support animals” are animals that provide emotional, cognitive, or other similar support to an individual with a disability. A support animal does not need to be trained or certified. Support animals are also known as comfort animals or emotional support animals.
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.