Below are questions asked by rental property owners regarding California rent control laws followed by answers provided by Attorney Richard Beckman.
Question 1: I attended the recent streaming seminar on the eviction moratoriums in Berkeley, Oakland and Alameda County, which was finally being lifted, but would really appreciate another chance to review that information here. Can you repeat the details?
Answer 1: It was a lot of information and details to try to keep track of it all. As noted last month, Alameda County’s pandemic-era eviction moratorium expired as of April 29, 2023.There are no caveats or ‘transition’ provisions, as there are in the Berkeley and Oakland changes. Thus, unpaid rent accruing after May 1st may be sought by unlawful detainer after expiration of a three-day notice to pay rent or quit. Note: this is clearly the only case in unincorporated areas of Alameda County, as certain cities continued eviction restrictions after April 29th (see below)
In Oakland, the moratorium ends effective July 14th, which means all eviction protections related to lease enforcement, which are 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. 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.
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. After August 31st, no restrictions on any unlawful detainer remain.
It must be noted that while all other jurisdictions are winding down their eviction protection laws, San Leandro has elected to extend its moratorium another year. On February 21, 2023, the City Council approved an ordinance extending the City’s Eviction Moratorium for one year, until February 28, 2024. The eviction moratorium prohibits landlords from evicting residential tenants, as well as mobile home and recreational vehicle (RVs) owners, for nonpayment of rent, where the inability to pay is due to either a substantial decrease in household income or increase in medical expenses caused by the COVID-19 pandemic. The City’s Eviction moratorium only applies to tenants who have submitted written notification to their landlords that they cannot pay rent due to documented COVID-19 reasons.
Question 2: What about collecting unpaid back rent?
Answer 2: Issues as to seeking unpaid rent are complicated, in terms of whether such unpaid rent can be sought through the 3 Day Notice (unlawful detainer) process, or only through the ’collection’ process, in either small claims or ‘regular’ court proceedings. Various jurisdictions handle that issue differently.
In Alameda County, as stated above, evictions can proceed as of April 30, 2023 and tenants who do not pay rent from April 30th onward are at risk of eviction. Tenants with unpaid rents accumulated during the moratorium may not be evicted for such unpaid rents, but landlords may still pursue unpaid rent in small claims court. Another caveat is that 12 months must pass before the unpaid rent can be sought through the collections case. For example, any rent unpaid from before June 2022 may now be pursued via collections. This rule may be preempted by the state law that makes August 31, 2023, the end of any delayed repayment period. I believe it is probably appropriate for owners to seek such unpaid rent after August 31, regardless of when it accrued and let the court decide if the local or state law controls.
As for Oakland, any rent that accrued from March 2020 through July 14, 2023, can once again be sought by a three day notice, but the tenant can defeat that effort by showing the rent was unpaid due to Covid related financial impact. However, there does not seem to be any restriction on seeking such unpaid rent through the collection process.
Berkeley, as stated above, allows nonpayment cases for rent due after May 1st, through August 31st, but allows the tenant to assert a Covid financial impact defense. After September 1st, no such defense is allowed for rent accruing after May 1, 2023. Rent unpaid from March 2020 and May 1, 2023 can never be sought by unlawful detainer and for rent accrued through January 31, 2021, Tenants shall have until March 31, 2022, to repay it and for rent accrued beginning February 1, 2021, Tenants shall have until July 31, 2023, to pay rent that was delayed by a Covered Reason for Delayed Payment.
Question 3: When Oakland re-starts evictions on July 15th, I’m unclear if landlords will be required to serve a 7 Day Notice to Cease before they can file a 3 Day Notice to Quit for Nonpayment of Rent, before they can file the UD actions. Can you clarify?
Answer 3: Thank you for a question that actually has a clear answer, and that answer is ‘no.’ The ‘pre-notice notice’ requirement applies to all other Oakland ‘at fault just cause’ grounds to terminate except for non-payment of rent. According to Measure EE, as codified at Oakland Municipal Code Section 8.22.360B4 – Good cause required for eviction, “Any written notice as described in Subsection 6(A)(2, 3, 4, 5, 7 shall be served by the landlord prior to a notice to terminate tenancy and shall include a provision informing the tenant that a failure to cure may result in the initiation of eviction proceedings.” Those sections involve lease breaches, other than non payment of rent or nuisance activity.
Question 4: We read somewhere that smoke detectors need to be inspected twice a year. Is this true and where can I find a copy of this law?
Answer 4: I am not finding any state law or regulation requiring semi-annual carbon monoxide inspections. Below is the information from the leading landlord-tenant treatise on those devices:
Under a separate provision of the State Housing Law (not tied to the statutory list of “substandard” conditions), landlords (or their agents) are required to maintain state-approved carbon monoxide detection devices in residential rental units as prescribed by Health & Saf.C. § 17926. The device must be operable at the time the tenant takes possession of the unit; but the tenant is responsible for notifying the landlord if the tenant becomes aware that the device is defective or not operational. [See Health & Saf.C. §§ 17926 & 17926.1]
Carbon monoxide detector maintenance: The landlord (or landlord’s agent) may enter a tenant’s dwelling unit, in the manner and subject to the requirements prescribed by Civ.C. § 1954, for the purpose of installing, repairing, testing and maintaining carbon monoxide detection devices required by Health & Saf.C. § 17926.1 (see ¶ 3:27.5). [Health & Saf.C. § 17926.1(b)]
So, while the state law gives owners the right to inspect, it does not impose on them a duty to do so, assuming the detectors were in working order at the beginning of the tenancy.
Question 5: I think I saw something about the Oakland AOA three-day notice to pay rent or quit was being challenged by tenants and their attorneys. Can you explain what the issue is?
Answer 5: An attorney notified fellow practitioners that one of the Oakland tenant defense firms had filed a ‘motion for judgment on pleadings’ set for May 30th, asserting that language used in AOA form is insufficient and thus fatally defective. The AOA form provides “Advice regarding the notice terminating tenancy is available from the Rent Board. The Rent Board is located at 250 Frank J. Ogawa Plaza, Suite 5313, Oakland CA 94612, telephone (510) 252-3015.” That attorney indicated that the notice should incorporate what is known as a ‘safe harbor’ provision to ensure the notice complies with the Oakland ordinance. The court’s ruling will come too late for this edition, but will be reported next month.
“This regulation sets out the preferred language landlords must insert into notices terminating tenancy or notices to cure or quit regarding advice from the Rent Program. As preferred language, the language used in this regulation is “safe harbor” language that, if used by a landlord in applicable notices, cannot be challenged by the tenant as being noncompliant with the O.M.C. 8.22.360 B.6.b. Other language imparting the same information may also be acceptable. i. The following statement must be included in notices terminating tenancy or notices to cure or quit regarding advice from the Rent Program. “Information regarding evictions is available from the city of Oakland’s Rent Program. Parties seeking legal advice concerning evictions should consult with an attorney. The Rent Program is located at 250 Frank H. Ogawa Plaza, Suite 3315, Oakland, CA 94612, (510) 238-3501, website: www.oaklandnet.com. (as of January 2004)”
From my review, and while the regulations have a ‘suggested’ safe harbor that addresses Section 8.22.360(b), the Ordinance itself (the one that matters) only requires the statement contained in the AOA notice. I don’t see any additional ordinance requirements regarding that required statement, so not sure how the court could find the notice defective. However, to avoid the issue, the ‘safe harbor’ language should be in the notice and I anticipate AOA amending its notice to make that change.
Question 6: Are rent raises allowed in Alameda County now or is there a restriction on that too?
Answer 6: Now that the Alameda County eviction moratorium has ended, as of April 29th, property owners are no longer subject to those restrictions, unless the property is in a city that continues such restrictions, such as Oakland, Berkeley, and now San Leandro. You should check to make sure your city has not enacted any recent similar ordinance. If not, then you are entitled to pursue rent increases and non-payment of rent cases, as you previously were permitted to do pre-pandemic.
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.