Q&A

Below are questions asked by rental property owners regarding California rent control laws followed by answers provided by Attorney Richard Beckman.

 

Question 1:  Are there any updates on the lawsuits against the eviction moratoriums in Oakland, Berkeley and Alameda County?

Answer 1: 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 is also set for summary judgment hearing on September 29.

Basically, the arguments of both cases is that the city and the county have violated various constitutional protections. A hearing is set for September 29th, 2022 on the plaintiffs’ motion for summary judgment. If that motion is 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. As of this writing, the county and city have filed their oppositions to the motion, along with the supporting briefs by various ‘friends of the court’ (amicus curia) who support the moratoriums. 

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In the City of Alameda case against Alameda County, City of Alameda v. The Superior Court of Alameda County, there has been no additional filings according to the appeals court docket. This is surprising, as the case was filed as a ‘writ of mandate’, which are normally acted on by the appellate courts quickly. So, no news to report on that case. Continue to stay tuned!

 

Question 2: I have a tenant in my Berkeley apartment who, I believe, has someone living with them in violation of the lease. But the next problem is, the actual tenant has no car, but has a parking spot at the property, and the friend’s car is spilling oil all over the parking lot. Can I tell him to move the vehicle to the street, as only the tenant has parking? I do not charge for the parking space. 

Answer 2: Without seeing your rental agreement, any analysis is inherently incomplete. However, from what you provide, this situation probably comes under the ‘better handled by other than legal means’ category. And by that I mean, while there are various legal issues raised by your situation, the current remedies available to you are extremely limited. Evictions in Berkeley are limited to those required by public health and safety concerns, and quite honestly, leaking oil probably won’t qualify. It’s possible that you could argue that because it drains to the Bay it is a public health and safety violation, and succeed in an eviction based on the tenant’s refusal to comply with a three day notice requiring them to cease polluting the parking area (leaving aside the other issues).  It would be an interesting argument to make to the Alameda County Superior Court. Environmental concerns here of course carry great weight, so, who knows, maybe the court would consider it a public health and safety violation.

But, a more practical solution is simply to get one of those oilpan leak containers and place it in the parking spot where the car leaks the oil and just simply try to mitigate the problem. It doesn’t mean you can’t notify the tenant that their behavior is a violation of the lease and they should cease doing it, and that may work. But, and what I meant above, was if the tenant refused to cooperate, your legal remedies are limited, at least at the current time. Should Alameda county and city of Berkeley ever remove its eviction moratoriums (or per the lawsuits discussed above, be compelled to), your options will expand accordingly.

 

Question 3: I served a 60-day notice to terminate tenancy on my Yuba County area tenant. The tenant has since failed to pay rent, so I want to serve a 3-day notice to pay. But it is my understanding that the landlord cannot withdraw a 60-day notice – that it is legally binding on them – and that they cannot serve a 3-day notice to pay since the 60-day notice is binding.  Is this correct?  Also, is there’s any reason why I cannot move forward with a small claims action for that rent?
Answer 3: You are correct that the landlord cannot unilaterally withdraw a notice to terminate the tenant. In fact, neither landlord nor tenant may withdraw a 30-day or 60-day notice without consent of the other. [Devonshire v. Langstaff (1935) 10 CA2d 369, 373, 51 P2d 902, 905]. However, there may be an implied consensual withdrawal where the tenant tenders and the landlord accepts rent in an amount sufficient to cover a period beyond the 30 or 60 days. [Highland Plastics, Inc. v. Enders (1980) 109 CA3d Supp. 1, 11, 167 CR 353, 359. The tenant is obligated to pay rent during the 60-day notice termination period, and failure to do so allows the owner to serve a three day notice demanding the rent. However, a leading treatise on the issue provides this warning: “Tenants often withhold rent after receiving a 30/60-day notice, in turn prompting landlords to serve a three-day notice to pay rent accruing after service, but before expiration, of the 30/60-day notice. The only advantage in doing so is to accelerate the time for filing an unlawful detainer action. However, this scenario may well complicate the case. Arguably, serving the three-day notice operates as an implied consensual withdrawal of the 30/60-day notice. If so, a UD must stand or fall only on the three-day notice. If the three-day notice demands rent accruing after expiration of the 30/60-day notice period, and the 30/60-day notice is deemed not to have been impliedly withdrawn by the three-day notice, the three-day notice is defective and cannot support a UD.” I know, that sounds complicated, but I felt I should include it. However, my practice has always been to serve the 3-Day Notice to Pay or Quit, but to be careful not to demand rent for any day that is after the 60-day termination notice’s effective date. 

 

Question 4: A landlord has a house with garage converted to a studio. The tenant rented a garage/studio less than one year ago. The tenant hasn’t paid rent and the landlord gave a 60-day notice and is waiving the rent. Does not expect to get it anyway. The question is this – if the studio is in violation of building codes, can that impact the eviction? Does the tenant have the ability to interfere with the eviction on that basis? 

Answer 4: The law regarding renting what are commonly referred to as ‘illegal units’, or ‘non-permitted units’, historically was very stable. The tenant was not required to pay the rent because it was an illegal contract, but the tenant could be evicted for not paying the rent. It was a bit of a legal oddity, but that has been the state of the law since the mid-1980s. However, a case in Southern California came out in the last few years that, at least for the jurisdiction under that court’s decision, held that a property owner could not evict a tenant of an illegal unit for not paying the rent because no rent could be compelled due to the illegality of the unit. That was a not an unreasonable decision, and arguably, long overdue since the legal reasoning of the original case was logically frail. Since that property was subject to LA’s eviction control law, the owner’s only option was to legalize the unit so the tenant would be obligated to pay rent, or remove the unit from housing by demolition of the illegal unit, evicting the tenant using that particular ground. If the unit were not subject to any eviction control, including the state law, AB 1482, then a simple notice of termination would be sufficient basis to allow eviction of the tenant if the tenant refused to vacate. However, after AB 1482, that option no longer exists. Thus, you can continue to assert the historic rule that a tenant in a non-permitted unit must pay rent, or quit, and take your chances that the local court does not adopt the LA court’s reasoning. If it does, your options are as stated above.

 

Question 5: The tenants are vacating but are leaving a hammock stand in the back yard. The new tenants want it to remain.  Can the stand be left and a disclaimer/hold harmless addendum be added to the lease to resolve the potential liability issue, or  should it be removed before the new tenants take occupancy? Are there other options? Your reply will be appreciated.
Answer 5:The property owner is responsible for the conditions of the property when leased to a new tenant, however they were created. Thus, if you have concerns regarding the safety of the hammock stand, you would need to take steps to satisfy yourself that it in fact is a safe feature, either by having it inspected and approved, or, as you suggest, removed. I do not believe, without researching the issue, that residential property owners can limit liability to the tenant for habitability or safety issues on the property. While it might be possible to have the tenants enter into a binding ‘hold harmless’ clause for use of the hammock, advice on that issue is beyond the scope of the Q&A forum. You would need to retain counsel for a more definitive opinion on that issue.

 

Question 6: I’m renting rooms in my Sacramento building. Someone moves in and we discover that they are pregnant within the lease term. The lease expires and because of the pregnancy they are unable to move out or find a new home, what options would I have?

Answer 6: Generally speaking, you would be entitled to terminate, or not renew, a tenancy that is not subject to eviction control provisions, which would appear to be your situation if the tenancy is less than one year (AB 1482). However, terminating, nor refusing to renew, a tenancy based on the development of a pregnancy, when that is the motivation for terminating the tenancy, would subject you to significant potential liability for discrimination. Terminating a tenancy solely, or even partially, because the tenant is having a child would likely result in a complaint to the state and federal fair housing departments, and, likely, a civil lawsuit alleging discrimination based on family, sex, gender etc.

 

Question 7: What is the maximum allowable amount to charge for background, credit, Unlawful detainer and criminal checks for applicants in San Joaquin County, Stockton, CA jurisdiction?

Answer 7: As of December 2021, the CPI adjusted increase to the screening fee is $23.33 and the total maximum fee you can charge is $55.58, regardless of the property location or credit report type. 

 

Question 8: A prospective renter for my Los Gatos unit has a criminal record from August, 2021. It was found on the Zillow application. I was not able to find any details even with the case number. Would you tell me how to proceed from here? Like how to find the details? Can I deny the applicant based on it? Any potential legal issues? Thanks so much!

Answer 8: Denying an applicant based on criminal history has become more challenging in recent years. For example, Berkeley has a ‘Fair Chance Housing Ordinance.’ (Ord. 7692-NS § 1 (part), 2020), that provides in part: Except as provided in Paragraphs B and C of this Section, a Housing Provider shall not, at any time or by any means, whether direct or indirect, inquire about an Applicant’s Criminal History, require an applicant to disclose their criminal hstory, require an applicant to authorize the release of their criminal history or, if such information is received, base an Adverse Action in whole or in part on an applicant’s criminal history.

Unless Los Gatos or Santa Clara county have ordinances prohibiting the consideration of criminal history as part of the application process, I don’t believe there is any specific federal or state law that would apply to penalize considering criminal history as an element of your application review. However, recent regulatory rulings from Housing and Urban Development (HUD) have indicated that, since criminal convictions are statistically more likely to include persons of color, applying a blanket ban on any applicant with a criminal record could constitute discrimination of a class of persons (even though criminal history is not a ‘protected class’ such as race, religion, gender etc). It is a complicated issue, but if the criminal record shows a conviction for violence, or other crimes that, if repeated, would be likely to impact other tenants or neighbors, rejection solely on that basis is likely acceptable.

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.