Below are questions asked by rental property owners regarding California rent control laws followed by answers provided by Attorney Richard Beckman.
Question 1: I read the eviction moratoriums in Berkeley, Oakland and Alameda County and they are finally being lifted. Can you explain the details?
Answer 1: As noted last month, Alameda County supervisors voted February 28th to end the countywide state of emergency as of that date, but allowing the moratorium ordinance to remain in place for 60 days. Thus, Alameda County’s pandemic-era eviction moratorium expires as of April 29, 2023.There are no caveats or ‘transition’ provisions, as there are in the Berkeley and Oakland changes.
In Oakland, the city council voted on April 18 to amend the moratorium, effective July 14, which means all eviction protections related to lease enforcement, unrelated to public health and safety (basically, the only eviction exemption to the ordinance), are terminated and tenants will be subject to eviction for lease violations, as was the case pre-pandemic. It phases the relief in by allowing limited ‘owner move in’ (OMI) evictions as of May 2nd (for those who only own one rental property in the city). Rent that becomes due as of May 1st, may also be subject to a three day notice to pay or quit, as was the case pre-pandemic. However, for rent due before July 14th, the tenant can assert, as a defense, that pandemic economic impact is the reason rent was not paid.
The amendment added additional eviction restrictions to Measure EE – the existing eviction protection ordinance – by requiring the tenant to owe more than one month of rent before a three-day notice may be served, but marking the amount of rent as pegged to “one month of fair market rent for a unit of equivalent size in the Oakland metro area as determined by the U.S. Department of Housing and Urban Development.” In other words, if the tenant has been in possession for a considerable period of time, such that the monthly rent is below fair market value, then the tenant will not be subject to a three-day notice for nonpayment of rent if only one month behind.
Berkeley preceded the Oakland amendment by a couple weeks, and it seems Oakland copied much of its language from the Berkeley version. Berkeley’s amended version creates a “Covered Period”, which means the period beginning with March 17, 2020 and “concluding 60 days after the expiration of the local emergency but not sooner than May 1, 2023.” (However, the City Council may vote by resolution to extend the duration of the Covered Period). The “Transition Period” means the period of time beginning with the expiration of the Covered Period (apparently May 1st) and ending on August 31, 2023. During the ‘transition period,’ OMI notices may be served (if, as with Oakland, the owner owns only one unit in the city), and rent that becomes due after May 1st may be sought by three day notice, but subject to the tenant’s right to raise as a defense the “Covered Reason for Delayed Payment,” similar to the provision discussed in the Oakland ordinance.
Question 2: Given that the moratoriums seem to be winding down, do any of the lawsuits you wrote about earlier still merit watching?
Answer 2: Practically speaking, other than for the parties involved, who are seeking financial damages in addition to the termination of the moratoriums, probably not (unless one of the actions is amended to be a ‘class action,’ which could include all property owners who suffered financial loss as a result of the various moratoriums).
Question 3: Can a landlord reject a rental application because of a conviction for crimes? My property is in San Ramon.
Answer 3: As you may know, that issue has become quite the hot topic lately. Alameda County proposed a version of what is known sometimes as the ‘Fair Chance’ ordinance, which is in place in Berkeley and Oakland, and which prohibits property owners from discriminating against applicants based on the applicant’s criminal history, including reference to criminal history in advertisements, or requests for such information from the applicant. However, that effort was recently defeated. I am unaware of any similar ordinance in San Ramon or Contra Costa County.
Statewide, the Department of Fair Housing and Employment (DFEH) is tasked with enforcing the state’s laws against discrimination in housing. Generally, those efforts focus on what are known as ‘protected categories’, which include what you might anticipate, e.g. sex, nationality, religion, and of late, categories such as ‘source of income’. Criminal history is not a specifically protected category, but the agency has developed regulations that make it an unlawful business practice to take certain actions with regard to an applicant’s criminal background. Specifically, while the housing provider may notify applicants that a criminal history background check will be run, using that history is subject to certain limitations, primarily being that unless the criminal history is relevant to the specific use raised by the housing arrangement, it should not be the basis for disqualifying the applicant. The examples given in the agency’s info sheet include allowing an applicant to be rejected when there is a criminal conviction for arson, as that conviction directly implicates potential risk to other occupants of the building.
In general, you should approach inquiring about an applicant’s past criminal history with caution.
Question 4: Can I offer cash for keys as I also give a 3-day notice to quit for breach of contract? A 3-day notice to pay has already been given and the days have passed.
Answer 4: Generally speaking, unless there is a specific San Jose ordinance that governs what are known as ‘buyout negotiations’, I’m unaware of any reason why you could not engage in that arrangement. Many local jurisdictions have been passing such provisions in the last few years, so you should check to see if San Jose has or has not.
If it has, you need to make sure you’re in compliance with that section before proceeding further. Generally, it requires a form disclosure notice to be provided to the tenant before such discussions can be undertaken for a ‘buyout’. However, there is usually an exception for negotiations that take place during the pendency of an unlawful detainer lawsuit. Your case is not at that stage, and the ordinances that have been enacted are not clear whether they apply in that interim situation, i.e., where a three-day notice (to cure, or cure or quit, for one reason or another) has expired, and the tenant is arguably unlawfully detaining, but no lawsuit has been filed. I typically advise clients to comply with any buyout ordinance, simply to avoid the argument possibly being made by the tenant down the road.
Question 5: I sent a 90-day rent increase notice through USPS with a certificate of mailing, but now am worried that the tenants might claim they never received it. So I would like to follow up by 1) slipping a copy of the letter under their front door and 2) emailing them a copy of the letter. My question is, is it OK to do that, given that the date that I drop off/email the copy of the letter will be different from the date written on the letter — which is the date I dropped off the letter at the post office? I’m assuming I should not change the date on the letter since that might cause confusion and legal problems? Please note that the property in question is a single family home.
Answer 5: Rent increase notices are covered by Civil Code Section 827, which specifies how notice to the tenant must be provided in order to be legally binding on the tenant. According to that statute, (1) In all leases of a residential dwelling, or of any interest therein, from week to week, month to month, or any other period less than a month, the landlord may increase the rent provided in the lease or rental agreement, upon giving written notice to the tenant, as follows, by either of the following procedures:
(A) By delivering a copy to the tenant personally.
(B) By serving a copy by mail under the procedures prescribed in Section 1013 of the Code of
Civil Procedure Section 1013, refers to the rules and procedure to mail documents to another party by first class U.S. post, or overnight services. If you did so pursuant to that section, your notice would be legally compliant and binding on the tenants. However, that section also requires that five days are added to any date which the mailing seeks to impose. In other words, if you mailed a 90-day notice of rent increase on April 30th, to take place August 1st, you would need to add all the days together, from April 30th until July 31st, plus five days, and make sure that you do not exceed the 90 day notice period. If so, the tenant could object that the rent increase notice was defective. I would try to communicate with the tenant to simply clear that issue up. You may need to serve an amended notice if you find that you have not complied with the required notice procedures and the tenant will not cooperate.
Question 6: This has to do with rental property inspections. It is a long story, but basically I have three tenants who do not want the inspections and they state they are in their legal rights to do that. The city (Santa Cruz) has put me in violation of their inspection program until they can get into those units. The only way out for me is to pay fines or break the law and coerce the tenants to let them in. That is against the law and I refuse to do that. As a result I have been placed on permanent annual inspection of all my units until they can get in those units. There has to be a law that says you can’t have laws that people can’t comply with without breaking the law. How do I fight this?
Answer 6: Without a review of the specific ordinance, or city order that you’re referring to, I would not be able to properly evaluate your question. Tenants are generally protected from an owner’s attempt to conduct a ‘general inspection’ of their unit, as the applicable statute, Civil Code Section 1954 specifies the reasons when an owner can compel entry into the tenant unit, which do not include a ‘general right of inspection’. As the statute states:
“A landlord may enter the dwelling unit only in the following cases:
(1) In case of emergency.
(2) To make necessary or agreed repairs, decorations, alterations or improvements, supply
necessary or agreed services, or exhibit the dwelling unit to prospective or actual purchasers,
mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision
(f) of Section 1950.5. (which is related to a departing tenant’s rights).
(3) When the tenant has abandoned or surrendered the premises.
(4) Pursuant to court order.”
Unfortunately, there is no general right of inspection. However, I would reach out to the city officials who have issued whatever citation they have issued and let them know that the tenants refuse your request for entry to inspect and find out how the city itself suggests you proceed. If you have the right of entry, and I suspect there is probably a way you could comply with Civil Code section 1954 under these circumstances, the tenants refusal to allow you entry is itself a violation and can result in termination of their tenancy upon subsequent proper notice.
Question 7: My question relates to “Emotional Support Animals” and their effect on a 3-day Notice to Perform Covenant. An animal was recently discovered in one of our rental units, which is a violation of the “no pets” clause in the tenant’s rental agreement. When the tenant was served with the 3-day Notice to Perform Covenant, the tenant claimed the animal was for emotional support, and that they were beginning the process of acquiring the necessary paperwork (30-day relationship, etc.). What effect, if any, does the announcement of the “Emotional Support Animal” have on the 3-day Notice to Perform Covenant? Thank you, your expertise is much appreciated
Answer 7: That’s an interesting question, which is probably best answered by resorting to a practical approach, rather than perhaps one that is ‘by the book’.
By the book, I believe, means that you would be entitled to enforce the ‘no pet’ provision in the lease pending the tenant’s compliance with the California statute (AB 468, that you allude to in your question), and which has been discussed several times in this column in the past. It primarily allows the property owner to insist that the tenant provide qualifying documentation, which, rather than the past situation where anyone could get documentation off the internet, requires an actual relationship with the health care provider and the patient (tenant), as well as certain licensing requirements for the healthcare provider.
However, under the practical approach, a tenant could say that they are requesting a reasonable accommodation, which is the right to have an emotional support animal, in violation of the lease, and that it is also a reasonable accommodation for the owner to allow the tenant a grace period while the necessary paperwork is being provided. Sort of a double layer of the reasonable accommodation request.
I don’t know how a court or agencies such as the Department of Fair Employment and Housing (DFEH), which enforces claims of housing discrimination, would handle such a situation. However, if there is no reason to doubt the tenant’s good faith, then providing this second level of ‘reasonable accommodation’ may be a prudent approach, to avoid a potential discrimination complaint from the tenant and follow-up by the DFEH.
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.