Question 1: Are there any new landlord-tenant laws we should know about for 2016?
Answer 1: As sure as the sun will rise in the east, there will be new laws in California on pretty much every aspect of the human endeavor, and the field of landlord-tenant law is no exception. However, it was a relatively modest legislative year in terms of new laws affecting landlords and tenants. Some of the new laws are modest changes to existing law, while at least one adds significant new protections to a category of persons based on their “citizenship, primary language, or immigration status.” A summary of each new law follows, in no particular order of importance.
Clotheslines and Outdoor Drying Racks: This bill requires a landlord to permit a tenant to utilize a clothesline or drying rack, as defined, approved by the landlord for use in the tenant’s private area (as defined), if certain conditions are met, including, among others, that the clothesline or drying rack will not interfere with the maintenance of the rental property and the use of the clothesline or drying rack does not violate reasonable time or location restrictions imposed by the landlord.
In essence, the new law allows a tenant to use a ‘clothesline’ or ‘drying rack’ to be hung or attached in the tenant’s ‘private area’ as long as the clothesline or draying rack does not ‘create a health or safety hazard, block doorways, or interfere with walkways or utility service equipment.’ A balcony, railing, awning, or other part of a structure or building shall not qualify as a clothesline or drying rack.
“Private area” means an outdoor area or an area in the tenant’s premises enclosed by a wall or fence with access from a door of the premises. This would presumably include the tenant’s deck or patio.
The tenant must seek and receive the landlord’s consent before affixing a clothesline to a building and the use of the clothesline or drying rack must not violate reasonable time or location restrictions imposed by the landlord (which are not defined and which may be very open to interpretation). Assembly Bill 1448. Codified as Civil Code §§1940.20 and 4750.10. Effective date is January 1, 2016.
Mold Remediation: This bill adds mold to a list of conditions that are identified as elements of a substandard building or environment. It provides that a lessor is not obligated to repair a dilapidation relating to mold, as specified, until he or she has notice of it, or if the tenant is responsible for the condition by violating the statutory duty to keep the property clean and sanitary, if that failure substantially contributes to the existence of the mold.
For a building, or portion thereof, to be declared a substandard building by virtue of mold, it must be visible mold growth, as determined by a health officer or a code enforcement officer, which endangers the health of the occupants. If the presence of mold is minor and found on surfaces that can accumulate moisture as part of their proper and intended use, the mold would not constitute a substandard condition.
Other than specifying mold as a condition specifically included in the list of conditions rendering a building substandard, the law does not add any substantial changes to existing law, though it is nice to have clarification on when the lessor’s duty to repair arises. Senate Bill 655. Codified as Civil Code § 1941.7, and Health and Safety Code Sections 17920 and 17920.3.
Pest Control By Landlords Without Use of a Licensed Pest Control Operator: This new law should result in a windfall for pest control companies, as it requires landlords and their agents who do their own pest control efforts (think, spraying D-Con or Raid around a common area to control a reported roach sighting) to provide very specific notice in a very specific manner to specified occupants near the treatment area. The law does not specify the consequences of failure to comply, however.
Existing law requires a landlord of a residential dwelling unit to provide a new tenant with certain disclosures, including, but not limited to, a specified notice from a registered structural pest control company regarding the use of pesticides at the dwelling unit if a contract for periodic pest control service has been executed. However, the legislature realized that landlords or authorized agents may apply pesticides without using the services of a licensed pest control operator and if so, there was no requirement for landlords or authorized agents to notify tenants when pesticides are applied to their units or common areas. The legislature intended this bill to ensure that when pesticides are about to be applied to rental property by the landlord or an authorized agent, rather than by a licensed pest control operator, potentially affected tenants are to be provided with substantially the same written notification that they would have received under existing law had the pesticides been applied by a pest control operator.
This bill, with certain exceptions, would require the landlord or the landlord’s authorized agent to provide a tenant, and, if certain conditions are met, any tenant of adjacent units, with specified notice of the use of pesticides at the dwelling unit if the landlord or authorized agent applies any pesticide without a licensed pest control operator.
The bill, with certain exceptions, would require the posting of a similar notice at least 24 hours prior to application of any pesticide to a common area without a licensed pest control operator, unless the pest poses an immediate threat to health and safety, in which case the notice would be required to be posted as soon as practicable, but not later than one hour after the pesticide is applied. For routine application pursuant to a schedule in common areas, the bill would require a notification to existing tenants prior to the initial routine application and to new tenants at the time that the lease agreement is entered into.
“Adjacent units” are dwelling units that are directly beside, above, or below the subject dwelling unit. Tenants in adjacent units must be notified when the pesticide application is a “broadcast application” or when a total release fogger or aerosol spray is used, and any tenant in an adjacent dwelling unit could reasonably be impacted by the pesticide use. Again, this notification is required only when done by a landlord or agent without a licensed pest control operator.
Although the entire statute has to be read carefully to insure the landlord is in compliance, below is the primary notification provision:
A landlord or authorized agent that applies any pesticide to a dwelling unit without a licensed pest control operator shall provide a tenant of that dwelling unit and, if making broadcast applications, or using total release foggers or aerosol sprays, any tenant in an adjacent dwelling unit that could reasonably be impacted by the pesticide use with written notice that contains the following statements and information using words with common and everyday meaning:
(A) The pest or pests to be controlled.
(B) The name and brand of the pesticide product proposed to be used.
(C) “State law requires that you be given the following information:
CAUTION – PESTICIDES ARE TOXIC CHEMICALS. The California Department of Pesticide Regulation and the United States Environmental Protection Agency allow the unlicensed use of certain pesticides based on existing scientific evidence that there are no appreciable risks if proper use conditions are followed or that the risks are outweighed by the benefits. The degree of risk depends upon the degree of exposure, so exposure should be minimized.
If within 24 hours following application of a pesticide a person experiences symptoms similar to common seasonal illness comparable to influenza, the person should contact a physician, appropriate licensed health care provider, or the California Poison Control System (1-800-222-1222).
For further information, contact any of the following: for Health Questions – the County Health Department (telephone number) and for Regulatory Information – the Department of Pesticide Regulation (916-324-4100).”
(D) The approximate date, time, and frequency with which the pesticide will be applied.
(E) The following notification: “The approximate date, time, and frequency of this pesticide
application is subject to change.”
(2) At least 24 hours prior to application of the pesticide to the dwelling unit, the landlord or authorized agent shall provide the notice to the tenant of the dwelling unit, as well as any tenants in adjacent units that are required to be notified pursuant to paragraph (1), in at least one of the following ways:
(A) First-class mail.
(B) Personal delivery to the tenant, someone of suitable age and discretion at the premises,
or under the usual entry door of the premises.
(C) Electronic delivery, if an electronic mailing address has been provided by the tenant.
(D) Posting a written notice in a conspicuous place at the unit entry in a manner in which a
reasonable person would discover the notice.
Senate Bill 328. Codified as Civil Code §1940.8.5. Effective date is January 1, 2016
Immigration Status Information: Existing law, the Unruh Civil Rights Act, provides that all persons within the jurisdiction of this state are entitled to full and equal accommodations in all business establishments (which includes rental housing) regardless of their sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.
This bill extends the protections of the Unruh Civil Rights Act to persons regardless of “citizenship, primary language, or immigration status.” Not surprisingly, but contrary to some interpretations of this new language, landlords may not inquire as to the immigration status of tenants or applicants, unless required to do so by federal law. Prior state law (Civil Code Section 1940.3) prohibiting such inquiry remains in force, and states:
(b) No landlord or any agent of the landlord shall do any of the following:
(1) Make any inquiry regarding or based on the immigration or citizenship status of a tenant, prospective tenant, occupant, or prospective occupant of residential rental property.
(2) Require that any tenant, prospective tenant, occupant, or prospective occupant of the rental property make any statement, representation, or certification concerning his or her immigration or citizenship status.
(c) Nothing in this section shall prohibit a landlord from either:
(1) Complying with any legal obligation under federal law.
(2) Requesting information or documentation necessary to determine or verify the
financial qualifications of a prospective tenant, or to determine or verify the identity
of a prospective tenant or prospective occupant.
SB 600 clarifies that landlords are not required to provide documents in a language other than English unless the landlord negotiates contracts in another language (as already required by existing law). Senate Bill 600. Codified as Civil Code §51. Effective date is January 1, 2016
Termination of Tenancy Notice by Victim of Domestic Violence Reduced to 14 Days:
Existing law authorizes a tenant to notify the landlord in writing that he or she or a household member, as defined, was a victim of an act of domestic violence or sexual assault and that the tenant intends to terminate the tenancy. Existing law requires that the tenant attach to the notice to terminate a tenancy a copy of a temporary restraining order or protective order that protects the tenant or household member from further domestic violence or sexual assault or to attach a report by a peace officer stating that the tenant or household member has filed a report alleging he or she or the household member is a victim of domestic violence or sexual assault. However, this law is set to expire January 1, 2016.
This bill extends these provisions indefinitely and would reduce the time limit for a tenant to give a notice of intent to vacate to the landlord under these provisions from 30 days to 14 days.
A landlord shall not disclose any information provided by a tenant under this law to a third party unless the disclosure satisfies any one of the following:
(A) The tenant consents in writing to the disclosure.
(B) The disclosure is required by law or order of the court.
Assembly Bill 418. Codified as Civil Code §1946.7. Effective date is January 1, 2016.
Medical Marijuana Cultivation: Two related bills establish an oversight and licensing program for individuals who cultivate marijuana. Cities and counties are authorized to issue or deny permits to cultivate, and they may inspect cultivation sites. Cities and counties must have land use regulations that regulate or prohibit the cultivation of marijuana by March 1, 2016, or the state will be the sole licensing authority in that area. All indoor and outdoor cultivation sites must be conducted in accordance with state and local laws relating to land conversion, grading, electricity usage, water usage, and the like.
The bills provide that a person who applies for a license to cultivate or distribute marijuana must certify that he or she is in compliance with all local ordinances and regulations and must provide evidence of the legal right to occupy and use the proposed location, including written approval from the property owner if the licensee does not own the property. The bills do provide that activity related to cannabis use is subject to federal prosecution, regardless of the protections provided by state law.
However, these requirements do not apply to a qualified patient, as defined in Section 11362.7 of the Health and Safety Code, or primary caregiver, who cultivates, possesses, stores, manufactures, or transports cannabis exclusively for his or her personal medical use but who does not provide, donate, sell, or distribute cannabis to any other. Assembly Bill 243 & Senate Bill 643 – Effective date is January 1, 2016.
Insurance Discrimination: AB 447 has been interpreted to prohibit insurers from discriminating against rental property owners who offer housing for tenants with Section 8 vouchers or other low-income programs.
Existing law already prohibits an insurer from discriminating against an insured or applicant due the person’s sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation. Existing law provides that sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation shall not, of itself, constitute a condition or risk for which a higher rate, premium, or charge may be required of the insured for residential property insurance.
Existing law also prohibits an application for one of these policies, or an insurance investigation report, from carrying any identification, or any requirement therefore, of the applicant’s sex, race, color, religion, ancestry, national origin, disability, medical condition, genetic information, marital status, or sexual orientation.
This bill would, for specified types of real property, add certain other characteristics relating to the insured or the insured property to the categories that may not be used by an insurer for the purposes described above, including, under certain circumstances, the level or source of income and the receipt of government or public assistance by an individual or group of individuals residing or intending to reside upon the property, as specified. Assembly Bill 447. Codified as Insurance Code §.679.74. Effective date is January 1, 2016.
Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 24 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 415-871-0070; email [email protected] or by visiting the website www.beckmanblairllp.com