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Legal Q & A by – Rich Beckman

Posted on 01. Aug, 2019 by in all

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Question 1My tenant just gave me 30 days written notice. If I give her a 24-hour notice via email or text, can I show the unit to prospective new tenants? I thought this was a given but she claims I can’t show the place until she has vacated the property. Thanks in advance for your reply.
Answer 1: You are both slightly misinformed. You, as the owner, have the right to enter the unit, pursuant to Civil Code 1954 (which is easily found online to review), but the purpose of the entry is limited to six specific reasons, one of which includes  “To …exhibit the dwelling unit to prospective or actual tenants.”

However, your right to enter is subject to proper notice being given to the tenant, in a permitted fashion. Text or email is not, sadly, a permitted method of notice, absent the tenant’s agreement to receive notice in such method. The ‘permitted’ method is set out below, although adding a copy by text or email would probably be a good idea.

“The landlord shall give the tenant reasonable notice in writing of his or her intent to enter, and enter only during normal business hours. The notice shall include the date, approximate time, and purpose of the entry. The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice. Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary. The notice may be mailed to the tenant. Mailing of the notice at least six days prior to an intended entry is presumed reasonable notice in the absence of evidence to the contrary.”

And except in cases of emergency or when the tenant has abandoned or surrendered the premises, entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry. As to ‘normal business hours,’ according to the case Dromy v.Lukovsky (2013) 219 Cal.App.4th 278, it depends on the circumstances, and can include weekends (in the case of showing a unit for open house prior to sale). As the court stated, “we hold that the term “normal business hours” in section 1954 means objectively reasonable hours under the facts and circumstances of the case, keeping in mind the right of tenants to quiet enjoyment and the right of landlords to sell their property. Thus, when a landlord seeks to exhibit a leased dwelling unit to prospective or actual purchasers, he or she may only enter the property during reasonable hours, unless the tenant consents to another time. However, and generally, Monday-Friday 9-5 will be ‘safe’ hours to request entry.

Also, notice of entry pursuant to Section 1954 is not required if entry is:

  • To respond to an emergency.
  • If the tenant is present and consents to the entry at the time of entry.
  • After the tenant has abandoned or surrendered the unit.

[AOA members may download form #130, Notice to Enter, FREE at www.aoausa.com.]

 Question 2One of our tenants recently died and we have been contacted by a couple of family members who would like to enter his unit and take possession of his property. I would like to know what the procedure is that a landlord should follow and what documentation I need to request before this is done. 

Answer 2: That is a sensitive subject, and you would likely need specific legal guidance to protect the interests of all involved. But generally, the basic rule in the case of a deceased tenant is that the month-to-month tenancy terminates on the last day for which rent was paid (so, typically the end of the month during which the tenant passed). If the lease is for other than month to month, a different situation arises, and may involve the deceased’s estate. 

As to the personal property left by the tenant, ideally one of the family members would provide you with a court order identifying that person as the executor or administrator of the deceased’s estate, as that person would then be legally entitled to take possession of the property.  But that takes time, generally, and is unlikely to happen soon. So, in that event, if it were my tenant (and here is where the specific legal guidance will be necessary), I’d have them provide as much evidence as they have to prove they are legally permitted to recover the tenant’s stuff, and that could include a copy of his will, or trust, or other writing by him that directs the relative to take stuff. If not, something establishing the actual family relationship would be minimum, and ideally they would sign an indemnity agreement that if anyone else claims the property and seeks to hold you responsible, the person taking the stuff will defend you from such claims. And then get some evidence of their employment and residence so the indemnity agreement can be enforced.

Civil Code 1965 states the standard to be followed. It is the ‘duly authorized representative’ component that is the ‘wild card’ in the above scenario.

Question 3Did Alameda change its rent control law recently?

Answer 3:  Yes. On May 21, 2019, the City voted to remove “no cause” as a permissible grounds for terminating a tenancy under Section 6-58.140.A of the Alameda Municipal Code. Although the effective date of this Ordinance is thirty (30) days after final adoption (here, July 5th given that the Ordinance was introduced on May 21 and adoption occurred on June 4th), any action to terminate a tenancy based on “no cause” for which a landlord has not secured by July 5, 2019 a final court judgment ordering the tenant to vacate will be of no effect because on or after that date, a landlord’s right to take any action to terminate a tenancy based on “no cause” will have been eliminated.

Accordingly, when the ordinance amending Ordinance No. 3148 became effective, beginning July 5, 2019:

  • Any notice of termination for “no cause” served on a tenant for which a landlord has not secured by July 5, 2019 a final court judgment ordering the tenant to vacate will be of no effect on or after that date. 
  • Landlords must refrain from taking action to terminate any tenancy for “no cause,” including, but not limited to, making a demand for possession of a Rental Unit, threatening to terminate a tenancy, bringing or continuing to prosecute any action to recover possession or be granted possession of a rental unit, etc.

Question 4: Recently, a person applied for an apartment in one of my buildings.  The manager asked for income papers which he supplied.  The management company turned him down due to lack of adequate income. He then filed a notice with HUD saying he was turned down due to his religion, saying the manager asked him what it was. The management company hired attorneys who went to HUD.  HUD denied the person’s complaint. This cost me $6,000. Do I have any recourse?

Answer 4: Without reviewing the agreements between you and the property management company, it is difficult to say whether you should be reimbursed or not. The agreement between you and the property management company will likely control, and it most likely says one party will pay the other for any costs incurred when one gets sued because of something the other did. In this case, as it was the property management company doing the tenant evaluation, and ultimately their decision to reject the applicant, it would seem they would be responsible for the costs of defending the claim. But your agreement with them may make such costs your responsibility. You will likely need someone to review the agreement and provide an informed opinion on your right to reimbursement.

Question 5: I read the city of Concord is enacting rent control. Can you provide details?
Answer 5: On June 19 the City Council met to consider changes to Concord’s existing Residential Rent Review Program. Currently, those rules are for the most part limited to providing a tenant the right to request mediation of rent increases exceeding 10% in a 12-month period to seek non-binding conciliation and mediation services through a housing counselor retained by the City.

In the event that the conciliation and mediation services do not result in a resolution to the conflict over the rent increase, tenants have the option of seeking non-binding arbitration at a public meeting through a three-member Rent Review Panel appointed by the City Council. Participation in the conciliation, mediation and public arbitration process is mandatory for property owners. The Ordinance applies to all Concord rental properties with three or more rental units, except triplexes in which one of the units is owner-occupied and in rental units owned or operated by any government agency or whose rent is subsidized through any government program.

Property owners are required to provide tenants with a Notice of Availability of Rent Review (form) when issuing a rent increase in any amount.

The Council considered, but did not implement, changes to the Residential Rent Review Program that will make the process binding for multi-family rental units in complexes of three or more units that were built before 1995.  The process would continue to be advisory for complexes of three or more rental units built after 1995 (as required by State law). The first steps required by the Ordinance (conciliation and mediation) would be retained; the final step, Rent Review Panel, would be replaced by an Administrative Law Judge (ALJ). The time the tenant has to request review of their rent increase would be increased from 15 to 30 days. If a rent increase were larger than a yet to be agreed upon threshold, tenants would have the right to participate in the rent review process.  The thresholds discussed at the meeting ranged from 3% in 12 months to 10% in 12 months. The threshold with the most support at the meeting was 7% + CPI in 12 months. 

The council also considered an ordinance that requires that a landlord pay tenants relocation assistance when a tenant’s lease is not renewed without an ordinance defined just cause. The Ordinance would define just cause. Relocation amounts will be discussed in more detail.  The amount set for initial review is $5,000 or two-times the average monthly rent for the same sized unit in Concord (as determined by staff once a year).

The landlord would be required to offer a 12-month lease to the tenant whenever a lease expired; the tenant would retain the right to go month to month or negotiate a shorter lease.

However, the Council has made no final decisions. Council staff was directed to bring requested documents and information before the Council for their consideration before the end of 2019. Residents can request to be added to the Interested Parties list to receive notification of all future meetings by sending an email to RentalHousingAdHoc@cityofconcord.org. The video of the June 19, 2019 Special City Council Meeting can be viewed there.

Question 6: I need to ask my Oakland tenants to move out in order to repair a water damaged living room wall. What are the steps involved?

Answer 6: If the house is covered by the Oakland Just Cause Ordinance (Measure EE), then you need to comply with the ‘Just Cause’ grounds to even temporarily terminate the tenancy to do repairs. That can require knowing the rules of notices of termination and then also complying with any relocation payments due. See the basic outline below for such a temporary eviction notice.

JUST CAUSE FOR EVICTION ORDINANCE (MEASURE EE) This measure provides that landlords of specified residential properties may evict tenants only for reasons specified in the measure. Landlords may not evict tenants in covered units except for the following reasons, which includes: Landlord seeks to make code compliance and repairs that cannot be made while the unit is occupied: Special Procedures: (1) Landlord must obtain building permit before commencing eviction; (2) Landlord must include statement of tenants’ right to payment under the Oakland Relocation Ordinance, the right to re-occupy the unit under conditions specified by the Ordinance and estimate of time required to complete repairs and expected date unit will be ready for habitation; (3) Tenant is not required to vacate for more than 3 months; however time may be extended on application by landlord.

Question 7: Has the Oakland exemption from rent control for two-three unit owner-occupied buildings been changed?

Answer 7: On Feb 8th, 2019, the Oakland City Council passed an Interim Emergency Ordinance to Temporarily Eliminate Exemptions from the Rent Adjustment Ordinance for owner occupied properties with two or three units. This Ordinance provides that the rent as of November 6, 2018, shall remain the base rent and that no owners may serve or give notice of a rent increase more than the CPI (consumer price index) Rent Adjustment. Also, owners may not serve an eviction notice in any owner-occupied duplex or triplex except for such causes defined in the City’s Just Cause for Eviction Ordinance. This emergency ordinance was to remain in effect for 180 days from the date of adoption or until an ordinance permanently eliminating the exemption becomes effective, whichever is earlier. However, on June 5, that temporary ordinance was adopted by the Oakland City Council as a permanent measure. Note that the exemption from eviction controls for such 2-3 unit buildings was removed by voter-approved Measure Y in November 2018.

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.

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