#eviction

To file or not to file…..that is the question.

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By: Oakland Lawyer

Most people think the law is black is white.  However the law is more grey than people realize.  As lawyers, we learn to interpret the law and sometimes are interpretations can vary.  Recently, I was reviewing the City of Alameda statute on rent control and noticed a conflict between the statute and the information provided on the Alameda Rent Program Website. 

On March 1, 2016, the Alameda City Council adopted Ordinance No. 3148, Alameda’s Rent Stabilization Ordinance. Ordinance 3148 created just cause eviction and limitations on rent increases in the City of Alameda.

Specifically,  Section 6-58.30 outlines documents that the landlord shall file with the program administrator. Of note is that this section does not list 6-58.140 B, but does list Section 6-58.155. Section 6-58.140 B, permits evictions for failure to pay rent, with proper notice.  Section 6-58.155 E indicates that the landlord shall file with the Program Administrator within seven (7) calendar days after having served any notice required by Section 6-58.140 a copy of such notice.

Clear as mud….right?  So here’s the breakdown:

Section 30 does not say that you have to file the with the program administrator for a just cause eviction for non-payment.  Section 140B outlines just cause evictions for non-payment.  Section 155E says all notices issued under Section140, for just cause evictions, must be filed.

The City website, as pictured below, says with specificity, that terminations for reasons including, but not limited to, failure to pay rent, do not have to be filed with the program.

I can only speculate (lawyer speak for guess) why their website appears to be giving incorrect information that if inaccurate is to the detriment of Alameda landlords.

Here’s the problem though.  After the landlord gives a notice for eviction based on non-payment of rent, called a pay or quit, the landlord can then use that notice as the basis for the legal eviction proceedings; called an unlawful detainer action.  It is a complete bar to the proceedings….meaning the tenant can defend the eviction by pointing out the landlord’s failure to comply with the municipal ordinance by having the lawsuit dismissed.  If the landlord raises that the information was provided by the City of Alameda, that will not prevent the dismissal.  A dismissed unlawful detainer action leaves the landlord open to a claim for wrongful eviction.  Here, in providing inaccurate information, or misinformation, the City of Alameda is creating potential liability for Alameda landlords to be sued by tenants for wrongful eviction because they followed the City’s own website.

The practice of law, advising people, and providing legal information comes with great responsibility.  The greatest being to provide people with accurate information.  It seems to me the City of Alameda has failed in its responsibility to arm its citizens with accurate information.
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Richmond Rent Program (updated)

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By: Oakland Lawyer

On Saturday, January 13th, I attended the City of Richmond’s, Rent Program Community Workshop, Landlord 101. I thought you’d like to know what I learned.

The next scheduled workshop is on February 17th, Tenant 101.

By way of background, the Richmond Rent Program was the result of Measure L on the November 8, 2016 ballot.  The program became effective December 30, 2016 and the Rent Program opened their doors on January 3, 2017.

Saturdays workshop was led by the Program’s Executive Director, Nicholas Traylor.  Mr. Traylor was hired July 13, 2017.  He started with a brief background of the program’s ballot inception and included that he has been working in this area for at least 13 years.

The Richmond Rent Board is made up of five members.  They are currently Nancy Combs, Virginia Finlay, Emma Gerould, David Gray, Lauren Maddock. They were appointed by the Richmond City Council on March 21, 2017 and are required to be City of Richmond residents.  Additionally, no more than two members can be persons who own or manage rental property, or realtors.  Mr. Traylor outlined the Rent Board’s ability to hear appeals for the Rent Adjustment Petitions, consider and adopt rent regulations, charge and collect fees, hire an Executive Director, establish the Annual General Adjustment (AGA) and provide direction on long-term program development.  The Rent Board meeting the third Wednesday of each month, beginning at 5 pm in the City Council Chambers.

The next Rent Board Meeting is this week, January 17th.  The Agenda was electronically mailed out on January 11th and included the Compiled Agenda Packet. You can subscribe for notifications of meetings and Agendas. The Rent Board website also contains audio recording of the meetings, if you are unable to attend.  Of note, the calendar includes a Special Rent Board meeting next week, but the agendas and compiled agenda packets have not been published.

Mr. Traylor introduced the staff present.  Unfortunately, I did not do a great job of taking notes of the names. There were several staff present including Cynthia Shaw, Ramona Howell, Magaly Chavez, Vickie Medina and interns Moises Serano and Andrea Zuniga 1.  Mr. Traylor also acknowledged his Deputy Director, Paige Roosa who was not present.

The Richmond Rent Ordinance that became effective on December 30th, 2016 does the following:

  1. Limits rent increases to the Annual General Adjustment (AGA), which is 100% of the Consumer Price Index (CPI).
  2. Base rents were rolled back to July 21, 2105.
  3. Requires Just Cause for unlawful detainer actions, or evictions.
  4. Provides for a Rent Adjustment/Fair Return Petition Process.

Properties in the City of Richmond are considered fully covered, partially exempt or fully exempt from the Richmond Rent Ordinance.  Fully covered properties are subject to Rent Controls and Just Cause Eviction protections as outlined in the Richmond Rent Ordinance.  Fully covered properties are multi-unit properties built before February 1, 1995.  Partially Exempt properties are those which have no rent control but are subject to the Just Cause portions of the Richmond Rent Ordinance.  Partially exempt properties consist of subsidized units, including section 8 tenancies, single family homes, condominiums and new construction 2. Fully exempt properties are those which are not governed by the Richmond Rent Ordinance and thus have no rent control and do not require a Just Cause eviction.  Fully exempted from the Richmond Rent Ordinance are properties where the Landlord and Tenant share a kitchen and/or bathroom, single family houses where a small second unit was added with permits and the main house is owner occupied, and senior housing.

The Annual General Adjustment (AGA)

The Annual General Adjustment is the annual cost of living increase allowed, based on 100% of the Consumer Price Index.  The landlord can apply the AGA in September 1st of each year.  Landlords are allowed to “bank,” or defer the AGA increases, but are limited to 5% of previously deferred AGAs.  The 2016 AGA was 3%. The 2017 AGA was 3.4%.  To obtain a valid AGA, the Richmond Rent Ordinance requires that landlords are in compliance with all aspects of the Rent Ordinance, provide the Rent Program with a copy of the rent increase with proof of service within 2-days and applies only to properties subject to the rent ordinance 3.

Maximum Allowable Rent (MAR)

The maximum allowable rent is the maximum rent that can be charged for a Controlled Rental Unit.  The MAR equals the Base Rent + AGA + Individual Rent Adjustments (as approved through the petition process).  The example provided in the workshop was a rental unit with base rent of $1000.00, in July 21, 105.  That unit would be eligible on December 30 2016 (effected date of Measure L) for a 3% AGA.  The same unit would be entitled to a 3.4% increase in September 2017.  The total increase is 6.56% because the AGA is currently compounded interest, not simple.

There was of course the anticipated discussion of market rate and when a landlord can charge market rate.  First, market rate was defined as what the market will bear.  Market rate is allowed in the following circumstances:

  1. When there is a voluntary vacancy and a new tenant starts.
  2. When the original occupants vacate and only hold-over subtenants remain in the unit.
  3. When the tenant no longer lives in the unit as a primary residence.

It was suggested that landlords have any subtenants execute a subtenant addendum  which clarifies that the rent can be increased to market rate if all the original occupants have left.  Currently, the Rent Program does not have that form available.

Just Cause

The Richmond Rent Ordinance allows for eviction in the following circumstances:

  1. Failure to pay rent.
  2. Breach of lease (requires a warning to cease, at least 5 days, but could be more).
  3. Nuisance.
  4. Failure to give access pursuant to CCP 1954.
  5. Temporarily vacate in Order to undertake substantial repairs.
  6. Owner move in. 4
  7. Withdrawal from rental market.
  8. Temporary tenancy

The Richmond Rent Ordinance requires that any notice of just cause eviction served on a tenant be submitted to the Rent Program within 2 days.  Currently, the landlord must submit an online form on the Rent Program’s website and upload a copy of the notice with a proof of service.

Temporary Relocation Payments 11.100.050/11.102.030

The Richmond Rent Ordinance requires temporary relocation payments when the tenant must temporarily vacate for the landlord to undertake substantial repairs.  The landlord must provide a Notice of Entitlement to Relocation Payment when they provide the notice of termination of tenancy.

The Richmond Rent Ordinance provides for the following per diem payments:

  1. $145 per day per household for a hotel/motel.
  2. $29 per day per person for food.
  3. $1 per day per household for laundry.
  4. $28 per day per animal for a cat/$51 per day per animal for a dog

Permanent Relocation Payments 11.100.050/11.102.030

The Richmond Rent Ordinance requires permanent relocation payments when the tenant must permanently vacate due to an Owner Mover-In or a Withdrawal from the Rental Market.  The landlord must provide a Notice of Entitlement to Relocation Payment when they provide the notice of termination of tenancy.

For Owner Move Ins the following payments are required:

Unit type                                                                    Base Amount/Qualified Tenant Households

Studio                                                                         $3400.00/$3950

1 Bedroom                                                                 $5250/$6050

2+ Bedroom                                                               $7150/8200

For Withdrawals of the Rental Market the following payments are required:

Unit type                                                                    Base Amount/Qualified Tenant Households

Studio                                                                         $6800/$7850

1 Bedroom                                                                 $10500/$12100

2+ Bedroom                                                               $14250/$16400

While there were other details provided during the workshop, the above represents a summary that landlords and tenants can use to understand the basics of the Richmond Rent Ordinance.  Kudos to the folks at the City of Richmond’s Rent Program for doing a great job on the workshop and working during a holiday weekend.  I look forward to your future workshops.

Footnotes

1. My apologies if your name is misspelled or not included in its entirety. I’m happy to update it, if you provide me the corrections.
2. New construction is construction with permits and a certificate of occupancy dated  after February 1, 1995.
3. Forms and Notices
4. Requires relocation payment.

Evicted or not evicted.

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By: Oakland Lawyer

As you are probably aware, I consider Oakland, CA my home base.  Oakland, a prominent city in the Bay Area is known for many things…good and bad, but there’s no place like it.

Of course, popularity brings other problems and one currently facing Oakland, and surrounding cities is housing.  In fact, Oakland has become so popular that one of the more prominent issues now is affordable housing. The influx of new people has made the cost and availability of housing a central issue for many people.  Correspondingly, the influx of people has changed not only the rental housing market but the real estate market.  Property values in Oakland have recovered substantially from where they were a mere 6 years ago; when most people were disputing the appraised value and somewhere underwater.

Some cities in the Bay Area have rent control….mainly, San Francisco, Oakland, and Berkeley. In response to recent influxes, some cities have recently initiated rent ordinances…think Alameda, Emeryville, and Richmond.

Most people are keenly aware of whether their rent is controlled.  However, even if your rent is not controlled, one of the added benefits of rent ordinances in most jurisdictions is just cause eviction.  Just cause eviction in Oakland…and similarly, other rent control cities means that you can only be evicted for certain reasons. In Oakland, those eleven reasons are:

  1. Failure to pay rent;
  2. Breach of lease;
  3. Failure to sign a lease extension that is materially the same as the original lease;
  4. Willful and substantial damage to the premises beyond normal wear and tear;
  5. Disorderly conduct that destroys the peace and quiet of other tenants;
  6. Use of the premises for an illegal purpose including the manufacture, sale, or use of illegal drugs;
  7. Continued denial of landlord access in violation of Civil Code section 1954;
  8. The owner of record seeks in good faith, without ulterior reasons and with honest intent, to recover possession of the rental unit for his or her occupancy as a principal residence where he or she has previously occupied the rental unit as his or her principal residence and has the right to recover possession for his or her occupancy as a principal residence under a written rental agreement with the current tenants;
  9. The owner of record seeks in good faith, without ulterior reasons and with honest intent, to recover possession for his or her own use and occupancy as his or her principal residence, or for the use and occupancy as a principal residence by the owner of record’s spouse, domestic partner, child, parent, or grandparent;
  10. Temporary relocation for three months for substantial repairs; and
  11. The owner of record seeks to permanently remove the unit from the housing market (also known as an Ellis Act eviction).

You’ll notice after reviewing the above-referenced list…there are some noticeable absences.  For example…the expiration of a rental agreement, the sale of property (including transfers due to FORECLOSURE), conversion to condominiums or changes in the federal Section 8 status of a unit.

That is to say, the common reasons people think they must move, or are cited as the reason their landlord gave them for asking them to leave, are not the bases for them to be legally evicted. This means that if they don’t leave voluntarily, the landlord cannot evict them. Therefore, if you’re a tenant, living in a just cause city, make sure you confirm that any notices from your landlord are legal, valid and without substantive defects.  A legally valid notice is one without substantive defects that the tenant can use to avoid leaving.

If the landlord’s notice contains substantive defects, the Court will dismiss any eviction action, based on it.  Most people don’t realize that if the landlord’s notice is not legally valid, he cannot force you from the property, or evict you.

The information provided in this article is not legal advice, does not constitute a solicitation and no attorney-client or confidential relationship is or will be formed by reading this article.