Receive news, updates and special deals by Joining AOA's Online Newsletter. Click now to sign up!

Legal Q & A – by Richard Beckman

Posted on 01. Jan, 2018 by in all

Facebook Twitter Email Linkedin Digg

Question 1: Are there any new laws for 2017 we should know about?Answer 1: Of course there are, but, not as many as in some years! And, as usual, they break down into state and local laws. Starting with the state laws, there is really only one new law affecting residential landlords and tenants that landlords should be aware of, though a prior passed law has a provision that takes effect as of January 1.

Bedbug Law:

The existing law that takes effect January 1, 2018 relates to bed bugs. Starting July 1, 2017, landlords had new duties of disclosure to new tenants. Those duties, set out below, extend to existing tenants as of the first of the New Year. So, make a note and be sure to send each of your current tenants the required information.

The existing law required that as of July 1, 2017, for all prospective new tenants, which extends to all tenants as of January 1, states that a landlord shall provide a written notice to the tenant that shall be in at least 10-point type explaining information about bedbugs..  [AOA members may download form 157 – Information About Bedbugs, for FREE at www.aoausa.com.]

Tenants have a duty to cooperate with the inspection to facilitate the detection and treatment of bed bugs, including providing requested information that is necessary to facilitate the detection and treatment of bed bugs to the pest control operator.

The landlord shall notify the tenants of those units inspected by the pest control operator of the pest control operator’s findings. The notification shall be in writing and made within two business days of receipt of the pest control operator’s findings.

For confirmed infestations in common areas, all tenants shall be provided notice of the pest control operator’s findings. 

Immigration Status Law (Assembly Bill No. 291):

The new state law that takes effect January 1 focuses on the immigration status of tenants and applicants. It was already against the law to inquire about an applicant’s immigration status, but Assembly Bill No. 291 now prohibits landlords from taking any adverse action against a tenant based on the tenant’s immigration status, even if the tenant is an ‘illegal’ immigrant (i.e. ‘undocumented’).

Specifically, the new law prohibits a lessor from causing a tenant or occupant to quit involuntarily or bring an action to recover possession because of the immigration or citizenship status of a tenant, occupant, or other person known to the lessor to be associated with a tenant or occupant, unless the lessor is complying with any legal obligation under any federal government program that provides for rent limitations or rental assistance to a qualified tenant (e.g. Section 8 tenants).

Landlords are also prohibited from threatening to disclose information regarding or relating to the immigration status or citizenship status of a tenant, (or occupant, or other person associated with a tenant or occupant) for the purpose of influencing a tenant to vacate a dwelling, or with the intent of harassing or intimidating a tenant, prospective tenant, occupant, or prospective occupant, or retaliating against a tenant or occupant for the exercise of his or her rights.

This bill would make it unlawful for a lessor to disclose to any immigration authority, law enforcement agency, or local, state, or federal agency information regarding or relating to the immigration or citizenship status of any tenant, occupant, or other person known to the lessor to be associated with a tenant or occupant, as provided, for the purpose of, or with the intent of, harassing or intimidating a tenant or occupant, retaliating against a tenant or occupant for the exercise of his or her rights, influencing a tenant or occupant to vacate a dwelling, or recovering possession of the dwelling, unless the lessor is complying with any legal obligation under federal law, or a subpoena, warrant, or order issued by a court.

Violation of these provisions can result in civil penalties paid to the tenant and would require the court to notify the district attorney of a potential violation of specified laws relating to extortion. Landlords would not violate the law if the landlord was complying with any legal obligation under any federal government program that provides for rent limitations or rental assistance to a qualified tenant.

Local Laws

The San Francisco Rent Ordinance “Owner Move In” ( OMI) law was amended over the summer, with certain provisions taking effect in August 2017, but most provisons taking effect January 1. The primary changes that took effect in August included extending the statute of limitations for a wrongful eviction lawsuit following an OMI eviction from one to five years, limiting the initial rent the landlord may charge a new tenant for a five-year period (from the current three years) to no more than that which the displaced tenant would have paid had the displaced tenant remained in occupancy.

Amendments Taking Effect on 1/1/18

For OMI notices served on or after 1/1/18, landlords are required to attach a blank change of address form to an OMI eviction notice that the tenant can use to advise the Rent Board of any change of address. The required form will be available on the Rent Board’s website by 1/1/18.

Landlords will be required to include in an OMI eviction notice a declaration executed by the landlord under penalty of perjury stating that the landlord intends to recover possession of the unit in good faith for use as the principal residence of the landlord or relative for a period of at least 36 continuous months.

Landlords will be required to file a “Statement of Occupancy” form with the Rent Board within 90 days after the date of service of an OMI notice, and an updated Statement of Occupancy every 90 days thereafter until the landlord recovers possession, and then once a year for five years after recovery of possession of the unit. The required form will be available on the Rent Board’s website by 1/1/18.

The landlord or relative who claims to be occupying the unit as that person’s principal residence will be required to attach at least two forms of supporting documentation to the Statement of Occupancy to show that the unit is being occupied as that person’s principal residence.

The Rent Board will be required to send a copy of each periodic and annual Statement of Occupancy to the displaced tenant, or a notice that the landlord did not file the required Statement of Occupancy.

The Rent Board shall assess administrative penalties on any landlord who fails to file a required Statement of Occupancy and supporting documentation – $250 for first failure, $500 for second failure and $1,000 for every subsequent failure.

Finally, the new amendment extends from three to five years the time period after an OMI notice during which a landlord who intends to re-rent the unit must first offer the unit to the displaced tenant.

 

Question 2: I have tenants who are complaining that another tenant is verbally harassing them. They also said that the harassing tenant shoved one of the other tenants in the laundry area. On 11/28/17, the tenant provided a police report regarding a verbal altercation in August 2016. A couple of days ago they came to the office and then provided a letter stating that they have anxiety and if I don’t solve the situation that they will be forced to get a no harassment or restraining order. There is a document stating that a police officer told them how to obtain a no harassment/restraining order. I sent a letter stating I suggest they get that. What is my obligation to this? If they get a no harassment/restraining order should I give the tenant they are accusing notice to vacate? I don’t want to get sued for not protecting the tenants but how do I know if it is true? Your thoughts?
Answer 2: Generally, if one tenant complains that another tenant is harrassing them, or threatening them, or otherwise acting in a way that legitimately disturbs the complaining tenant, the landlord has a duty to investigate the complaint(s). If the tenant produces a court order restraining one tenant from another, that is reasonably good evidence that the complaining tenant is not fabricating the complaints.

At that point, a three day notice to the offending tenant would be appropriate.  Depending on the nature of the offending tenant’s conduct (violence versus verbal harassment, for example), the notice could either be a ‘non-curable’ notice to vacate (if the offending tenant was violent against the complaining tenant) or ‘curable,’  warning the ‘bad’ tenant against any further actions that disturb, harass, threaten etc. the complaining tenant. Any violation of that notice could be the basis of a subsequent eviction action. Note however that in some rent control cities, a ‘pre-notice notice’ must be provided before the ‘official’ three day notice can be served.

Question 3: I have tenants in my Oakland building who have been using parking spaces but have not been paying extra for them. This has been going on for years. There is nothing in the rental agreement that mentions the use of parking. The building doesn’t have enough spaces for all those who want them.
1) Can I take the parking space away?
2) Can I begin to charge the tenant for the space?
3) If a fee for parking is included in the rental agreement, would an increase be subject to Oakland Rent Control?
Answer 3: Generally, any ‘housing service,’ which would include parking, which was part of the tenant’s original rental agreement, would be a right they are entitled to continue to enjoy. It is unclear from your question whether the tenants have always had parking or whether it was provided to them later, or they just took it upon themselves to begin to use parking spaces somewhere in the complex.

If the parking was not originally provided, or if it was provided later but at no charge, you can probably change the terms of the tenancy by serving a notice of change of terms of tenancy to either discontinue the parking, or allow it but at a specified cost. If the tenants believe your action is improper, they can file a petition with the rent board to have that issue determined. However, if you serve such a notice, be sure to be in compliance with the rule that requires you serve the Notice to Tenants of the Residential Rent Adjustment Program” (RAP Notice) with any rent increase or change of terms of tenancy.

Ultimately, it is impossible from here to determine whether you will be able to remove or charge for parking, or whether the rent board will adjust your charges or changes.

Question 4:  We have a tenant who left personal property in the apartment that is worth less than $700. They left four days after the 60 Day Notice to Move ended and returned the keys. My question is can we deduct from the Security Deposit for our time to pack up and dispose of the personal property that the tenant left in the apartment if they do not reclaim it? Would this fall under the category of cleaning and be permissible? We have already sent Form 145 – Notice of Right to Reclaim Abandoned Property and the last day for the tenant to reclaim the property is December 8th. The 21st day to return and account for the balance of the Security Deposit due to the tenant is December 9th. If I understand the law correctly we have to mail the check by the 21st day even if they receive it after the 21st day, is that correct?
Answer 4: I think you have it pretty well figured out. The accounting statement for the security deposit must, per Civil Code Section 1950.5, be sent no later than 21 days after the tenant vacated. It does not have to be received by that 21 day period – just mailed by that deadline.

As to deducting the costs of removing their abandoned stuff from the Security Deposit, the law is not clear, as it pertains to ‘cleaning’ or ‘damage beyond normal wear and tear.’ However, I believe the reasonable cost to you in time and expenses to remove abandoned property could be properly charged under the cleaning concept. While there is no way to completely predict what a small claims judge might rule, I would feel relatively comfortable making that claim in small claims court.

Question 5: My Gilroy tenant has been very delinquent with his rent for many periods the last two plus years, and I have decided to send a 60 day notice to terminate his tenancy. Must I give a three day notice before the 60 day notice? Can I mail the notice or must I hand deliver it?
Also, if the tenant began to pay in a timely fashion, can the 60 day Notice be cancelled?
Answer 5: If the tenant is in default on rent for any month, a three day notice to pay or quit is appropriate. However, it is not required in your situation. If you have simply tired of getting rent late month after month, a 60 day notice of termination is appropriate (assuming no rent control law applies). Once served (by certified mail, or personal service, or ‘nail and mail’) it is unclear legally if the notice can be rescinded, but you can always work with the tenant to mutually agree to rescind it.

Question 6: My rental property is a small duplex (each unit is 810 sq. ft., 2 bedrooms 1 bathroom). Originally I rented to a single lady, but it appears she has reunited with her husband, and their four kids. So there are total 2 adults and 4 kids in a small 2 bed, 1 bath Unit. Is there a law against too many people occupying a unit? I really worry about this situation and hope to terminate the lease because I worry about trouble in the future.
Answer 6: If they are a family, then seeking to terminate the tenancy based on number of occupants raises concerns about discrimination based on family size, which is not allowed. If they are not related, the lease may control how many people can occupy the unit as long as it is not discriminatory on its face (‘only one person may occupy’ would on its face prohibit families…).

But even if all the occupants are family there are limits on the number of people that can occupy a certain amount of floor space. You can check with the local building or zoning department for that information. If the tenants exceed the legally permitted amount, you can provide a notice to comply. However, please note that, at least under the San Francisco building code, minors (those under 18) are not counted in that ‘total persons in occupancy’ tally.

Question 7: I have a tenant whose one year lease is set to expire by the end of the year in Oakland. Since there is rent control, does it automatically go to month to month after one year?  Can we make them sign a renewal agreement? Are we allowed to give notice and ask to vacate before lease expires?
Answer 7:  Under Measure EE, the expiration of the lease (if the tenancy is subject to measure EE) converts the lease, as with any other expiring term lease, to a month to month lease if the tenant remains in possession and the landlord accepts a tender of rent.  The expiration of the one year lease is not a ‘just cause’ ground to terminate the tenancy.

If not covered by measure EE, then the lease would expire and the tenant would be unlawfully holding over and could be evicted without notice.

Under Measure EE, you can require the tenant to renew the lease for an identical time on identical terms (other than the addition of the annual allowable rent increase). Per Measure EE Section 8.22.360 A(3) “The tenant, who had an oral or written agreement with the landlord which has terminated, has refused after written request or demand by the landlord to execute a written extension or renewal thereof for a further term of like duration and under such terms which are materially the same as in the previous agreement; provided, that such terms do not conflict with any of the provisions of this Chapter.”

 

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 415-871-0070; email rbeckman@bfc-legal.com or by visiting the website www.bfc-legal.com.