California and San Francisco Tenant Law Specialist

Mobilehome Rent Increases and Evictions

Eric — Mon, 03 Jun 2013 19:08:34 +0000

California Mobilehome Homeowners: Rent Increases and Evictions

Updated: June 3, 2013

What are the requirements governing rent increases by mobilehome park owners or management in jurisdiction without rent control?

The Mobilehome Residency Law allows mobilehome park owners or management to increase rents. However, the park must provide a ninety-day notice prior to any increase. Cal. Civil Code § 798.30. California courts strictly enforce this notice requirement. See, e.g., Rich v. Schwab, 162 Cal. App. 3d 739, 743 (1984) (holding that a landlord’s insufficient notice is a “nullity for all purposes”). The rent increase notice does not need to contain an explanation. However, the park owner or management may only charge mobilehome owners for “rent, utilities, and incidental reasonable charges for services actually received.” Cal. Civil Code § 798.31.

City or county governments may impose rent control restrictions and differing notice requirements for rent increases. A tenant, therefore, can only determine whether a rent increase notice is valid by looking at local rent control ordinances.

What are the grounds for eviction from or termination of tenancy in a mobilehome park?

Park owners or management may only terminate a mobilehome owner’s tenancy for the following reasons:

failure to comply with a local ordinance or state law or regulation within a reasonable time after receiving a noncompliance notice from a governmental agency;
“substantial annoyance” within the park premises to other residents;
conviction for prostitution or a felony for controlled substance in the park;
failure to comply with a reasonable park rule included in a rental agreement;
nonpayment of rent, utility charges or reasonable incidental service charges for a period of five or more days from the due date (provided that the homeowner subsequently receives a three-day written notice to pay the amount due);
condemnation of the park; and
change of use of the park or any portion thereof, meaning that the entire park, “or a functional part of it, is no longer used as a mobilehome park”. Keh v. Walters, 55 Cal. App. 4th 1522, 1532 (1997).

(Cal. Civil Code § 798.56)

What are the requirements for an eviction notice for a mobilehome resident?

Where a park owner or manager seeks to terminate a tenancy, the mobilehome owner must receive a minimum of sixty days’ written notice to sell or remove the home from the park. See Cal. Civil Code § 798.55. The form of the notice must comply with Cal. Code of Civil Procedure § 1162. The park owner or management must send a copy of the notice to the legal owner, each junior lienholder and the registered owner of the mobilehome. The notice must contain a statement of the reason(s) for the termination with specific facts such as date, place, witnesses, and circumstances.

Section 8 Fraud

Joe — Tue, 21 May 2013 02:20:51 +0000

Section 8 Fraud: Side Payment Cases

Revised May 20, 2013

The False Claims Act provides that any person who “knowingly presents . . . a false or fraudulent claim for payment or approval” to the United States is liable on each such claim for a civil penalty of not less than $5,500 and not more than $11,000, plus three times the amount of damages sustained by the United States. In addition, any person who violates the FCA is liable for costs and attorney fees. (31 U.S.C. § 3729(a).)

The FCA defines the terms “knowing” and “knowingly” as meaning, with respect to information, that a person “(1) has actual knowledge of the information; (2) acts in deliberate ignorance of the truth or falsity of the information; or (3) acts in reckless disregard of the truth or falsity of the information, and no proof of specific intent to defraud is required.” (31 U.S.C. § 3729(b).)

The FCA defines a “claim” as “any request or demand . . . for money or property which is made to a contractor, grantee, or other recipient if the United States Government provides any portion of the money or property which is requested or demanded, or if the Government will reimburse such contractor, grantee or other recipient for any portion of the money or property which is requested or demanded.” (31 U.S.C. § 3729(c).)

Acceptance of Section 8 “side payments” constitutes a violation of the FCA. (Coleman v. Hernandez, 490 F.Supp.2d 278 (D. Conn. 2007).) In Coleman, a tenant who was eligible for a Section 8 rent subsidy entered into a rental agreement with a landlord, fixing the tenant’s total rent at $1,550 per month. The housing authority approved the rental agreement, which provided that the housing authority would pay the landlord $1,530 per month, and the tenant would pay $20 per month. Pursuant to Section 8 rules, the landlord was prohibited from charging the tenant any additional payment.

In Coleman, the landlord charged the tenant an additional rent payment of $60 on six separate occasions. The court held that these requests for “side payments” constituted six separate false claims under the FCA. (490 F.Supp.2d at 281.)

The FCA has a six-year statute of limitations. (29 U.S.C. § 3730).

Mobilehome Park Repairs

Eric — Mon, 13 May 2013 20:17:51 +0000

California Mobilehome Homeowners Repair Rights

Updated: May 13, 2013

Owners of mobilehomes live in a unique situation. First, they own their home while renting someone else’s land. Second, they often make a greater financial investment in their home and lot than the park owner makes in the park. Still, park owners greatly influence mobilehome owners’ living conditions. This is why mobilehome owners need to fully understand the protections that California law provides. The primary source of those legal protections is the California Mobilehome Residency Law, which is codified at Cal. Civil Code § 798 et seq. Other provisions of California law as well as local ordinances may provide additional protections.

What are the responsibilities of the mobilehome park owner or management regarding physical improvements in common park facilities?

Under Cal. Civil Code § 798.15(d), the mobilehome park owner or management is responsible for the following:

(1) providing and maintaining physical improvements in the common facilities (including utilities) in good working order and condition, and
(2) repairing, within a “reasonable period of time,” the sudden or unforeseen breakdown or deterioration of any such improvements and bringing them into good working order and condition.

If the situation affects health or safety, a “reasonable period of time” means as soon as possible after the mobilehome park owner or management knows or should have known of the breakdown or deterioration. The repair generally must take place within thirty days. Under Cal. Civil Code § 798.15, the rental agreement must state that the park owner is responsible for maintenance f common area facilities.

If the park owner or management substantially fails to provide and maintain physical improvements in the common facilities in good working order, it is then considered a public nuisance, as a matter of law. Cal. Civil Code § 798.87(a). A park resident may bring a civil action to abate such a nuisance. Cal. Civil Code § 798.87(c).

Reinforcing these requirements, 25 Cal. Code of Regulations § 1102 requires that the owner or management of a mobilehome park “be responsible for the safe operation and maintenance of all common areas, park-owned electrical, gas, and plumbing equipment and their installations, and all park-owned permanent buildings or structures, within the park” (emphasis added). Similarly, where a park is operated or maintained unsafely or otherwise unlawfully, the park owner or management is responsible for abating the violation. 25 Cal. Code of Regulations § 1610(b).

What are the preliminary requirements for bringing a lawsuit for failure to maintain (or for reductions in services)?

Under Cal. Civil Code § 798.84(a), a mobilehome owner must give the park owner or management written and signed notice at least thirty days before bringing suit. The notice must describe the physical improvements in the park’s common facilities that the owner or management failed to maintain in good working order or the services that were reduced. The notice must make specific allegations and explain the remedies requested. If one mobilehome owner gives notice, it counts as notice on behalf of all homeowners in the park. Substantial compliance with the notice provisions of Cal. Civil Code § 798.84(a)-(b) is sufficient to put the park owner or management “on notice,” as is notice by a state or local agency. Cal. Civil Code § 798.84(d).

What are the provisions governing apportionment of attorney’s fees and costs?

Under Cal. Civil Code § 798.85, the “prevailing party” of a lawsuit concerning the Mobilehome Residency Law is entitled to “reasonable attorney’s fees and costs.”

What damages are available against the park owner or management in a suit for failure to maintain?

If a mobilehome owner prevails against the park owner or management, the court may award actual damages, plus an additional penalty of up to $2,000 for each “willful” violation of the Mobilehome Residency Law. Cal. Civil Code § 798.86. “Willful” means intentional conduct undertaken with knowledge or consciousness of its probable results. Patarak v. Williams, 91 Cal. App. 4th 826, 830 (2001) (holding that a penalty was properly imposed because a mobilehome park owner willfully failed to maintain a septic system with knowledge or consciousness that it would probably fail with “malodorous and unsanitary consequences”).

Actual damages include (1) emotional distress; (2) moving costs; (3) property damage; (4) loss of use of a mobile home; (5) medical expenses; (6) pain and suffering; and (7) decrease in value of a mobile home.

What are the responsibilities of the mobilehome park owner or management regarding the driveways of the park?

Patk owners are “solely responsible” for maintaining, repairing, replacing, paving, sealing and paying all expenses for the maintenance of any driveways installed by the park owner or management. Cal. Civil Code § 798.37.5(c). This includes the repair of any damage to driveways and foundation systems caused by trees, as well as the removal of any such trees. A mobilehome owner, however, may be responsible for the cost of any damage to a park driveway if the homeowner installed the driveway or if the homeowner caused the damage.

Tenants and AirBnB

Eric — Fri, 16 Nov 2012 19:48:35 +0000

Vacation Rentals
Revised November 14, 2012

Tenants who list their units as short-term vacation rentals (for example on the website AirBnB) are exposing themselves to eviction. Short-term rentals violate “no-sublet” clauses, and may be in violation of a San Francisco law prohibiting tourist use of rental units. In rent-controlled jurisdictions, landlords are searching online for tenants who are renting their units out as vacation rentals and then issuing eviction notices. We have seen a rash of these in San Francisco in the last several months.
Landlords often attempt to evict under two theories: “illegal purpose” or “breach of sublease clause.” Our firm has been successful in challenging these eviction attempts.

Illegal Purpose
Tenants can fight an eviction based on illegal purpose by arguing (1) that the subletting was cured or not occurring when the notice was issued and (2) that AirBnB is not an “illegal purpose” within the meaning of the Rent Ordinance. Although listing a unit as a vacation rental may be a technical violation, it is hardly an “illegal purpose” as contemplated by Rent Ordinance section 37.9(a)(4). To prevail, a landlord would have to convince a pro-tenant, San Francisco jury that a tenant can be evicted for a minor violation.

In addition, if the eviction proceeds to trial, the following jury instruction is read to the jury:
A landlord shall not endeavor to recover possession of a rental unit unless at least one of the fifteen just causes is the dominant motive for recovering possession. Rent Ordinance § 37.9(c) (emphasis added).

Where a tenant is paying far below market rate for the unit, the landlord has the ulterior motive of wanting to force the tenant out to charge more. The dominant motive is not to cure a technical violation of the lease.

Breach of Lease
If the landlord is attempting to evict for breach of lease, the tenant should argue that the Rent Ordinance (and often the lease agreement itself) requires the landlord to give the tenant an opportunity to cure. Landlord attorneys often counter that state law does not require an opportunity to cure an illegal sublet. Code of Civil Procedure section 1161(4). But, that section arguably only applies where a tenant has entered into a long-term sublease that the tenant cannot cure. All of the cases that have allowed eviction for sublease without an opportunity to cure involve long-term, full assignments. See Roth v. Morton’s Chefs Services, Inc., 173 Cal. App. 3d 380, 385 (1985) (holding that there is no duty to allow a cure for a restaurant sublease of five years); and Richard v. Degen & Brody, Inc., 181 Cal. App. 2d 289 (1960) (finding that sublease was so extensive that it was “useless” to offer an opportunity to cure in three days).
As with an eviction for “illegal purpose,” tenants should also argue that they were not subleasing at the time they received the three-day notice to quit. Code of Civil Procedure section 1161(4) requires that the tenant be in the act of subletting at the time of the notice. That statute uses the active tense as opposed to the past tense: “any tenant . . . assigning or subletting.” Id.

It is important that tenants contact an attorney regarding these issues, as situations vary greatly.

Unlawful Rent Increase

Joe — Thu, 15 Nov 2012 19:53:31 +0000

Revised April 8, 2013
Under the Rent Ordinance, a tenant’s rent can only be increased annually by sixty percent of the Bay Area cost of living adjustment. San Francisco Rent Ordinance § 37.3(a)(1). Any rent increases that does not conform to this requirement is void. San Francisco Rent Ordinance § 37.3(b)(5).

A tenant is permitted to recover rent overpayments that resulted from illegal rent increases for the previous three years of the tenancy. San Francisco Rent Ordinance § 37.8(e)(7). When calculating the amount of rent overpayment, the rent must be reset to the last lawful rent imposed before the illegal rent increases. Id.

Our firm will sometimes represent tenants who have illegal rent claims on contingency at the Rent Board, meaning the tenant does not pay unless we recover. Please contact one of our attorneys to discuss this.

Resident Managers

Joe — Mon, 13 Aug 2012 18:11:26 +0000

When Managers Are Required

Apartment buildings with sixteen or more unit must have a resident manager.

Resident Apartment Managers as Licensees

To have tenant protections, a resident manager must be more than just an employee/licensee. In rent-controlled jurisdictions, managers not considered tenants can be forced to leave when their employment is terminated.

Several factors are looked at to determine if a manager is a tenant or an employee, including (1) whether there was a written lease; (2) whether the manager lived in the unit prior to becoming a manager; and (3) whether the manager paid a security deposit.

Where a resident manager signs a contract that states the occupancy is incidental to employment, a resident manager is not a tenant. Chan v. Antepenko, 203 Cal. App. 3d. Supp. 21 (1988).

At Will Employment

Most resident managers are considered “at-will employees”, meaning landlords can fire them without cause. Even at-will employees, however, cannot be fired for whistle blowing or for a discriminatory reason.

Resident managers who have long-term employment contracts are likely not at-will employees and cannot be terminated.

Minimum Wage for Resident Managers

Resident managers of apartment buildings must be paid minimum wage. In San Francisco, resident managers must be paid at least $10.24 per hour worked. Any employment contract that purports to pay less than the minimum wage is void.

The hourly rate of non-exempt employees is calculated as one-fortieth of the weekly employee salary. Employees who work more than 40 hours per week are entitled to compensation with overtime adjustments.

Rent Free Apartment as Minimum Wage

Most resident managers receive their apartment as part of an overall compensation package. Strict rules govern this practice.

Landlords may only credit up to two-thirds (2/3) of the market rental value of the unit, but not more than $451.89 per month for a single manager and $668.46 per month for a couple (Wage Order 5-2001 10 (c)).

Housing accommodations can only count against the minimum wage requirement if there is a “voluntary written agreement which explicitly references that such credits are being applied to the minimum wage obligation of the employer.” Brock v. Carrion, Ltd., 332 F. Supp. 2d 1320 (2004).

Oakland Rent Control

Joe — Wed, 11 Apr 2012 15:17:15 +0000

Updated April 1, 2013

Am I covered by the Oakland Rent Adjustment Program?

The Oakland Residential Rent Adjustment Program applies to buildings with two or more units in Oakland that have a certificate of occupancy prior to January 1, 1983.

However, the following units are not covered by the Oakland Rent Ordinance:

1. Dwelling units in subsidized housing, including units where tenants are using Section 8 vouchers;
2. Motels and boarding houses where the tenant has not been in continuous residence for thirty or more days;
3. Hospitals, convents, monasteries, convalescent homes, or college dormitories;
4. Nonprofit cooperatives owned by a majority of the residents;
6. Substantially rehabilitated buildings; and
7. Apartments in three-unit buildings where the landlord resides in the building and has occupied one of the units as his/her principal residence for at least a year.

What can I do to prove that I am covered by the Oakland Rent Adjustment Program?

Tenants may file a petition with the Rent Adjustment Program to determine whether they are covered by the Rent Ordinance.

For owner-occupied properties, when can the owner increase the rent?

The landlord in an owner-occupied building with three or fewer units may increase the rent after the landlord has lived in the building for at least one continuous year.

How much can a landlord increase the rent on a rent-controlled unit?

For a unit covered under the Oakland Rent Adjustment Program where an original occupant still lives in the unit, the landlord may only increase the rent by the annual percent change in the Consumer Price Index (CPI) for all Bay Area consumers. The landlord must provide a written rent increase notice with specific disclosures. If the landlord does not provide a formal written notice with disclosures, the rent increase is void. A tenant must contest an illegal rent increase within thirty days of receipt of notice. When the last original occupant has vacated the premises, the landlord may increase the rent in any amount at anytime at whim.

How often can my rent be increased?

An owner may only increase the rent once in a twelve-month period.

Can the landlord increase the rent by more than the allowable amount?

In addition to allowable rent increases, landlords can also add one or more of the following and thus raise the amount due:

Banked Rent Increase. Where a landlord has not increased the rent each year by the allowable amount, the rent increase can be banked from prior years.
Capital Improvement Increase. To a limited extent, a landlord may pass on the cost of capital improvements made to a unit.
Increased Housing Service Costs (operating expenses).
Uninsured Repair Cost (casualty loss).
Constitutional Fair Return (profit from investment).

What types of petitions can a tenant file with the Oakland Rent Adjustment Program?

Petition to Challenge Rent Increase
Decrease in Services. If a landlord takes away housing services or does not make major repairs, the tenant may file a petition for a decrease in rent. In general, this petition must be filed within sixty days of the decrease in services.
Illegal Rent Increase

Can the landlord pass on Oakland Rent Adjustment Program fees to a tenant?

A landlord may require a tenant to pay 50% of the annual, per-unit fee for units covered by the Oakland Rent Adjustment Program.

Which units have eviction protection in Oakland?

All residential rental units in Oakland are covered by the Oakland Just Cause for Eviction Ordinance where the landlord attempts to evict after 2003, with the following exceptions:

Rental units in any hospital, skilled nursing facility, or health facility;
Rental units in a nonprofit facility that has the primary purpose of providing short-term treatment, assistance, or therapy for alcohol, drug, or other substance abuse and the housing is provided incident to the recovery program, and where the client has been informed in writing of the temporary or transitional nature of the housing at its inception;
Rental units in a nonprofit facility which provides a structured living environment that has the primary purpose of helping homeless persons obtain the skills necessary for independent living in permanent housing and where occupancy is restricted to a limited and specific period of time of not more than twenty-four months and where the client has been informed in writing of the temporary or transitional nature of the housing at its inception;
Rental units in a residential property where the owner of record occupies a unit in the same property as his or her principal residence and regularly shares in the use of kitchen or bath facilities with the tenants of such rental units. For purposes of this section, the term “owner of record” shall not include any person who claims a homeowner’s property tax exemption on any other real property in the State of California;
A rental unit in a residential property that is divided into a maximum of three units, one of which is occupied by the owner of record as his or her principal residence. For purposes of this section, the term “owner of record” shall not include any person who claims a homeowner’s property tax exemption on any other real property in the State of California;
A unit that is held in trust on behalf of a developmentally disabled individual who permanently occupies the unit, or a unit that is permanently occupied by a developmentally disabled parent, sibling, child, or grandparent of the owner of that unit; and
Newly constructed rental units which are completed and offered for rent for the first time after the effective date of the initial Oakland Residential Rent, Relocation, and Arbitration Ordinance, provided that such new units were not created as a result of rehabilitation, improvement or conversion as opposed to new construction. (Ord. 12537 § 1 (part), 2003).

What are the just causes for eviction in Oakland?

Under the Oakland Just Cause for Eviction Ordinance, a landlord may only evict for the following eleven reasons:

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).

Can I add a roommate in Oakland?

Under the Oakland Just Cause for Eviction Ordinance, a tenant is entitled to a one-on-one replacement of a roommate. A landlord cannot evict a tenant for moving in a replacement roommate, even if the lease prohibits subleasing. If the landlord fails to respond to the tenant in writing within fourteen days of receipt of the tenant’s written request to add a roommate, the tenant’s request shall be deemed approved by the landlord.

Who is protected from an owner/relative move-in eviction?

A landlord may not recover possession of a unit with a tenant in possession who is:

sixty years or older and has been residing in the unit for five years;
disabled within the meaning of Government Code § 12926 and has been residing in the unit for five years; or
a catastrophically ill tenant, regardless of length of tenancy.

However, these protections do not apply where the landlord’s qualified relative is a protected tenant and all units in the building are occupied by protected tenants.

How do I prove that I am a protected tenant for purposes of an owner/relative move-in eviction?

A tenant who claims to be a member of one of the classes protected against an owner/relative move-in eviction must provide a statement with evidence to the landlord. A landlord may challenge a tenant’s claim of protected status by requesting a hearing with the Rent Board. In the Rent Board hearing, the tenant shall have the burden of proof to show protected status. No civil or criminal liability shall be imposed upon a landlord for challenging a tenant’s claim of protected status.

How many tenants can be removed from a building for owner/relative move-in?

Once a landlord has recovered possession of a rental unit for either the landlord’s use or the use of a relative, no other unit may be evicted for owner/relative move-in. Any future evictions taking place in the same building for an owner/relative move-in must be on that same unit.

What is required for a temporary eviction for substantial repairs?

Before evicting, the landlord must obtain all necessary permits from the City of Oakland. The eviction must be in good faith to undertake substantial repairs that cannot be completed while the unit is occupied, and the repairs must be necessary either to bring the property into compliance with applicable codes and laws affecting health and safety of tenants of the building, or under an outstanding notice of code violations affecting the health and safety of tenants of the building.
The repairs must be made on time and without unreasonable delay. The tenant cannot be forced to vacate for more than three months. However, the three-month period may be extended by the Rent Board upon application by the landlord. Once the repairs are completed, the landlord must offer the unit back to the original tenant at the same rent.

When is an eviction illegal?

A landlord cannot endeavor to recover possession of a rental unit unless at least one of the just causes for eviction represents the landlord’s “dominant motive for recovering possession and the landlord acts in good faith in seeking to recover possession.” In any eviction action, a landlord must show that he/she intends to “recover possession of the unit with good faith, honest intent and with no ulterior motive.”

Under the Oakland Just Cause for Eviction Ordinance, all notices of termination must include (1) a statement setting forth the basis for the eviction; (2) a statement that “advice regarding the notice terminating tenancy is available from the Rent Board”; and (3) other specific requirements for owner move-in eviction and substantial repairs eviction.

What are the tenant’s remedies for wrongful eviction under the Oakland Just Cause for Eviction Ordinance?

Whenever a landlord or anyone assisting a landlord wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of the Oakland Just Cause for Eviction Ordinance, the tenant may institute a civil proceeding for injunctive relief, money damages of not less than three times actual damages (including damages for mental or emotional distress), and whatever other relief the court deems appropriate.

In the case of an award of damages for mental or emotional distress, said award shall only be tripled if the trier of fact finds that the landlord acted in either knowing violation or reckless disregard of the rent ordinance. The prevailing tenant shall be entitled to reasonable attorney’s fees and costs pursuant to an order of the court. The remedies available shall be in addition to any other existing remedies which may be available to the tenant. Any violation of the Oakland Just Cause for Eviction Ordinance entitles the aggrieved tenant to actual damages according to proof and costs and attorney’s fees.

What are the protections for an Ellis Act eviction under the Oakland Just Cause for Eviction Ordinance?

All tenants must be given a minimum 120-day notice. A tenant who is disabled within the meaning of Government Code § 12955.3 and who has resided in the unit for more than one year is entitled to a minimum one-year notice. A tenant who is over the age of sixty-two is also entitled to a one-year notice. These protections apply to both the original leaseholder and subsequent occupants.

Any disabled or elderly tenant must give notice to the landlord of his/her protected-tenant status within sixty days of any eviction notice.
Within thirty days of receipt of the tenant’s request for the one-year extension, the landlord has thirty days to file a notice with the Rent Board objecting to the request for an extension. If the landlord contests the protected status, the landlord must file an objection with the Rent Board within fifteen days after a tenant claims status as elderly or disabled. The tenant must respond to any landlord request for information within thirty days. The landlord must keep the documents submitted by any tenant confidential.

Am I entitled to relocation benefits under the Ellis Act?

Tenant households whose income is less than that defined by Health and Safety Code § 50079.5 are entitled to moving allowance. The relocation payment is two months of the tenant’s rent. The tenant has sixty days to request a moving allowance. The owner must make the relocation payment within fifteen days of the tenant’s request. Any landlord who fails to pay the relocation payment is liable to pay the tenant’s attorney fees, plus a penalty of three times the amount of the original relocation payments.

Am I entitled to moving allowance for an owner/relative move-in eviction?

No.

Am I entitled to moving allowance for a demolition or substantial repairs eviction?

A low-income tenant is eligible for relocation benefits when displaced from a unit due to City code-enforcement actions. All tenants are entitled to relocation payments where the City (a) issues a notice of order to vacate the unit; (b) issues a notice to abate life-threatening conditions in the unit; or (c) declares the unit substandard or a public nuisance.

If the displacement is for sixty days or longer, the tenant is entitled to two times the Department of Housing and Urban Development (“HUD”) Fair Market Rent, plus a one-time payment of $200.
In addition, a displaced tenant has the option of moving back into the same unit or a comparable unit in the same building as soon as the unit is ready for re-occupancy. The owner must notify a displaced tenant, by certified mail, at least thirty days in advance of the availability of the unit. The displaced tenant must keep the owner informed of their current address while they are displaced, and must notify the owner of their intention to move back within seven days of receiving notice of the unit’s availability.

Hayward Rent Control

Joe — Wed, 11 Apr 2012 15:09:13 +0000

Updated April 4, 2012

What units are covered under the Hayward Residential Rent Stabilization Ordinance?

A landlord must own at least five units in the City of Hayward for the Hayward Rent Ordinance to apply. It can be any kind of common ownership and any percentage of ownership. A landlord cannot set up LLCs or corporations to hide the common ownership.

The following units are not part of rent control and do not count against a landlord’s five-unit minimum:

Accommodations in hospitals, extended care facilities, and dormitories;
Publically funded housing projects;
All units built after July 1, 1979;
Accommodations in motels, hotels, inns, tourist houses, rooming houses, and boarding houses, unless occupied for more than thirty days; and
Cooperative housing owned by a majority of the residents.

Are single family homes covered by the Hayward Rent Ordinance?

Under a state law known as Costa-Hawkins, a tenant who rents a single family home after January 1, 1996 cannot be covered by the rent protection portion of any rent ordinance. The tenant would still have eviction protection under the ordinance. If the tenant moved into the single family home before January 1, 1996, the tenant has rent protection and eviction protection. A single family home counts toward the five-unit minimum whether rented before or after 1996.

How much can a landlord increase the rent under the Hayward Rent Ordinance?

Landlords may only increase the rent by 5% per year on the anniversary date of the lease.

Can a landlord bank past rent increases?

Where a landlord has not increased the rent for a number of years, the landlord can bank the rent increases, up to a maximum of 10% per year.

What information does the landlord have to provide with the notice of rent increase?

Under the Hayward Rent Ordinance, a rent increase is void if the landlord fails to provide the following with the notice:

The amount of the rent increase in both dollars and as a percentage of existing rent;
A statement that the rent increase is consistent with the rent ordinance;
A summary of past rent increases;
The identity of all other affected tenants and the units which they rent;
The address and telephone number of the Rent Review Officer and the fact that the tenant is encouraged to call;
The telephone number of the landlord or management company in charge of providing the notice of rent increase; and
A blank petition to dispute the rent increase.

What is the process to challenge illegal rental amounts?

To challenge an illegal rent increase, a tenant may file a Petition for Rent Review with the Hayward Rent Review Officer. If a landlord is failing to make repairs or has taken away a housing service, such as parking, a tenant may file a Reduction in Housing Services Petition to have the monthly rent reset. The hearing officer may also order return of rent paid.

A Petition for Rent Review must be filed within 30 days of receipt of an unlawful rent increase.

When can the landlord increase the rent beyond the maximums allowed by the Hayward Rent Ordinance?

A landlord may increase the monthly rent to market value when all tenants have voluntarily vacated a unit. Once the unit is occupied by new tenants, the rent may only be increased by the maximum percentages allowable under the ordinance. A landlord may not increase the rent if the prior tenants were forced to vacate due to a landlord’s failure to maintain the premises in good repair.

Following a voluntary vacancy by all tenants, a landlord may permanently exempt a unit from the rent limitations of the Hayward Rent Ordinance by making major improvements to the unit valued in excess of $1,000 for one-bedroom units, $1,500 for two-bedroom units, and $2,000 for three-bedroom units. The landlord must also bring the unit up to code and file a 30-day notice with the Hayward Rent Review Officer.

Can I file a civil lawsuit against a landlord who illegally increases my rent?

Under the Hayward Rent Ordinance, a tenant may sue a landlord in Alameda County Superior Court for three times the amount of any illegal rent increase if the trier of fact finds that the landlord acted willfully or with oppression, fraud or malice.

Does a landlord have to pay interest on security deposits in Hayward?

All landlords are required to pay interest on security deposits in Hayward. The annual percentage is set by the Hayward Rent Review Officer. The interest must be either sent to the tenant annually or credited against the rent.

Does the Hayward Rent Ordinance have eviction protection?

There are only 15 reasons that a tenant can be evicted from a rent-controlled unit in Hayward:

Failure to pay rent;
Breach of lease;
Willful and substantial damage to the unit;
Refusal to sign a new lease that is materially the same as the original lease;
Nuisance;
Preventing landlord access;
Temporary eviction for capital improvements necessary to bring unit into code compliance;
Demolition of the unit after receiving permits from City;
Owner move-in or relative move-in;
Owner move-in pursuant to lease provision allowing owner to move in;
Illegal activity by tenant;
Illegal drug activity;
Breach of reasonable rules and regulations;
Lawful termination of tenant employment as resident manager; and
Tenant threat of harm to others

Are there any civil penalties for wrongful eviction in the Hayward Rent Ordinance?

Unfortunately, unlike other rent ordinances in the San Francisco Bay Area, the Hayward Rent Ordinance does not have any special civil penalties where a landlord has wrongfully evicted a tenant. The Hayward Rent Ordinance does provide that the failure to give a proper eviction notice with one of the enumerated 15 just causes would be a defense to an eviction lawsuit. Also, the City has discretion to levy fines against a landlord who fails to comply with the law.

Even without special civil penalties, the damages for constructive or wrongful eviction are still quite good. The damages are the market rent for the unit less the rent-controlled rent times the number of years the tenant reasonably expected to stay in the unit. For example, where a tenant is forced out of a unit where the tenant was paying $2,000/month for a rent-controlled apartment worth $3,000/month, the tenant will be allowed to recoup $1,000 for every month the tenant expected to live in the unit. Appraisers and economists are used to calculate the market rental value. At least one court has allowed recovery for twenty years of projected rent. Chacon v. Litke, 181 Cal. App. 4th 1234 (2010).

Berkeley Rent Control

Joe — Wed, 11 Apr 2012 15:05:01 +0000

Updated April 11, 2012

What units are covered by the Berkeley Rent Ordinance?

The Berkeley Rent Stabilization and Eviction for Good Cause Ordinance has two separate protections that are best thought of as distinct: rent increase limitations and just cause eviction protection.

Some units in the City of Berkeley have eviction protection, but do not have limitations on rent increases. Other units have both the eviction protection and the rent increase protection. And, a few units have neither protection.

Buildings with two or more units built before June 30, 1980 have both eviction protection and rent increase limitations.

Buildings with two or more units built after June 30, 1980 have eviction protection only but not rent increase limitations.

Single family homes and condos first rented after January 1, 1996 have eviction protection only but not rent increase limitations.

Single family homes and condos where the original tenant has occupied since before January 1, 1996 have both eviction protection and rent increase limitations.

Berkeley Housing Authority and Section 8 voucher tenants have eviction protection only but not rent increase limitations.

Rental units in a two-unit property do not have eviction protection or rent increase limitations, where one unit was, on December 31, 1979, and one unit currently still is the principal residence of an owner of at least 50 percent of the building.

Rental units do not have eviction protection or rent increase limitations, where the tenant shares kitchen or bath facilities with an owner of record who holds at least a 50 percent interest and maintains his or her principal residence in the building.

Does a Berkeley landlord have to pay interest on a security deposit?

Yes. The interest accrues as simple interest at the rate equal to the average rates of interest paid on six-month certificates of deposit. You can find a security deposit calculator here.

How much can a landlord increase the rent per year in Berkeley?

The annual percent increase for a rent-controlled unit in Berkeley is sixty-five percent of the annual percentage increase in the CPI.

Do I have to occupy the unit fulltime to have the rent-control limitations in Berkeley?

If a landlord wants to show that a tenant is no longer living in a unit fulltime, the landlord can file a Petition for a Determination of Occupancy Status. Only a tenant under the Rent Ordinance who occupies a unit as his or her primary residence remains protected. Rental units that are kept primarily for secondary residential occupancy, such as a pied-a-terre or vacation home, or primarily for non-residential purposes (such as storage, commercial or office use) are not subject to rent control.

Berkeley Rent Board Regulation 524 defines what it means to be “a tenant in occupancy”.

“(B) Occupancy as a primary residence does not require that the individual be physically present in the unit at all times or continuously, but the unit must be the tenant’s usual place of return. Evidence that a unit is the individual’s “primary residence” includes, but is not limited to, the following elements:

(1) the individual carries on basic living activities at the subject premises for extended periods;

(2) the individual does not maintain another dwelling or, if the individual does maintain another dwelling, the amount of time that the individual spends at each dwelling place;

(3) the subject premises are listed as the individual’s place of residence on any motor vehicle registration, driver’s license, voter registration, or with any other public agency, including Federal, State and local taxing authorities;

(4) utilities are billed to and paid by the individual at the subject premises;

(5) all of the individual’s personal possessions have been moved into the subject premises;

(6) a homeowner’s tax exemption for the individual has not been filed for a different property;

(7) the individual is enrolled as a student or is a member of the faculty at an institution of higher education in the San Francisco Bay Area;

(8) the subject premises are the place the individual normally returns to as his/her home, exclusive of military service, hospitalization, vacation, family emergency, Peace Corps service, academic sabbatical, travel necessitated by employment or education, or other reasonable temporary periods of absence.

(C) A tenant who is enrolled as a student or is a member of the faculty or staff at an accredited institution of higher education in the San Francisco Bay Area may qualify as a tenant in occupancy notwithstanding his or her having another residence to which he or she will ultimately return.

(D) If an individual rents two units in the same building and resides in one of the units as a primary residence, the second unit shall qualify as a tenant in occupancy unit if it is used primarily for residential storage of the personal property of the individual.

How much can I charge subtenants as a master tenant in Berkeley?

A master tenant cannot charge a subtenant more than a proportionate share of the total rent paid to the landlord. See Berkeley Rent Board Regulation 1003(C). Similarly, a master tenant subletting the entire premises may not charge a subtenant more than the total rent owed to the landlord. See Berkeley Rent Board Regulation 1003(B).

Am I allowed to replace roommates in Berkeley?

A landlord cannot unreasonably withhold consent to a one-to-one replacement of a co-tenant or subtenant.

Can a Berkeley landlord increase the rent when the last original occupant has moved out?

For subtenants who moved in after January 1, 1996, the landlord may increase the rent one time beyond the maximum allowable annual increase provided that the landlord has not signed a lease with any of the subsequent occupants and the landlord has not accepted rent after receiving written notice from the last original occupant that he or she has moved out or will be moving out permanently. Even though the Berkeley Rent Board takes the position that acceptance of rent creates a new tenancy, a state law called Costa-Hawkins likely pre-empts this, allowing a landlord a one-time rent increase even if the landlord accepted a rent payment from a subsequent occupant. The landlord has six months after receiving written notice that the last original occupant has vacated to increase the rent. Once the landlord has imposed the one-time vacancy increase, all of the tenants residing in the unit become new original occupants.

What are the eviction protections in Berkeley?

A landlord in Berkeley can only evict for one of 12 reasons, also known as just causes:

1. Non-payment of rent;

2. Breach of lease;

3. Willful, substantial damage to the rental unit that tenant refuses to repair;

4. Refusal to sign a new lease that is substantially identical to the expired one;

5. Disturbing the peace and quiet of other occupants;

6. Refusal to allow landlord access to the rental unit during normal business hours to show, inspect or make repairs;

7. To bring a unit in compliance with the Housing Code by making substantial repairs that cannot be made while the tenant lives there;

8. Demolition of a unit;

9. Owner move-in by an owner with at least a 50 percent recorded interest in the property, or such an owner’s spouse, parent, or child, wishes to occupy the rental unit as their principal residence and there is or was, for 90 days before the tenant was given notice to vacate, no vacant comparable unit available on any property owned by the landlord in Berkeley;

10. An owner or lessor wishes to move back into a rented or sub-leased unit as permitted in the rental agreement with the current tenant(s);

11. Refusal to vacate temporary housing offered by the landlord after repairs to the tenant’s prior unit have been completed; and

12. A tenant engages in unlawful activity on the premises.

In addition to these twelve enumerated just causes, a landlord may also take a rental unit off the rental market completely and evict all of the tenants. This is known as an Ellis Act Eviction.

What are the special protections against an owner move-in eviction in Berkeley?

Under the Berkeley Rent Ordinance, there is an absolute prohibition on owner/relative move-ins where either: (1) the tenant has lived on the property for five or more years and the landlord has a 10% or greater ownership interest in five or more residential units in Berkeley, or (2) the tenant is at least sixty years old or disabled, has lived on the property for five or more years, and the landlord has a 10% or greater ownership interest in four residential units in Berkeley. If all the landlord’s units are limited by the above, an eviction for the owner or relative to move in is only permitted where: the landlord has owned the property for five or more years and is at least sixty years old or disabled, or the landlord’s relative is at least sixty years old or disabled.

Is the landlord required to pay a moving allowance to tenants displaced by an owner move-in eviction?

The landlord must pay a $4,500 to any low-income household with at least one tenant who has resided in the unit for one year or more. To receive this relocation allowance, a tenant must notify the landlord and the Rent Board in writing within thirty days of receiving the notice of termination of the tenancy.

Can I sue for wrongful eviction under the Berkeley Rent Ordinance?

A landlord who evicts in bad faith or with dishonest intent is liable under the Berkeley Rent Ordinance for actual damages and attorney fees. Where a trier of fact finds the landlord’s actions be willful, the tenant shall be entitled to damages in the amount of $750 or three times the actual damages sustained, whichever is greater.

Bad faith is presumed where a landlord evicts for owner or relative move-in, and the owner or relative does not move in within three months or does not occupy the unit as a principal residence for at least thirty-six months. A similar presumption applies where a landlord fails to demolish or repair as promised within two months.

Am I entitled to relocation money or moving allowance if I am evicted?

Effective December 2011:

Temporary Relocation Payments for Repairs of Code Violations

If relocating for 29 consecutive days or less:

Per diem hotel/motel and meal costs:

$120/day for a one-person household
$135/day for a two-person household
$166/day for a three-person household
$166/day + $15/day per household member after the third

Pets that require boarding:

$20/day for a cat
$50/day for a dog

If the relocation lasts for a period of 30 consecutive days or longer:

One-time dislocation allowance $400 to defray incidental relocation expenses.

A second dislocation allowance of $400 is required if the relocation period lasts more than 6 months.

Reimbursement for moving and storage costs:

Fixed Payment

$500 if storage is needed.
$300 is no storage is required.

Or actual documented moving and storage costs.

Rent differential payments. Maximum per month payment.*

Studio or Single Room in Unit – $950
One Bedroom – $1,225
Two Bedrooms – $1,660
Three Bedrooms – $2,395

Documented utility differential payments.

*These maximums change yearly and are based on average market rent statistics gathered by the Rent Stabilization Program for the prior calendar year.

Owner or Relative Move-In Eviction Payments

One-time payment of $4,500 provided household income is:

Persons per household: Income no greater than:
1                                  $45,100
2                                  $51,550
3                                  $58,000
4                                  $64,400
5                                  $69,600
6                                  $74,750
7                                  $79,900
8                                  $85,050

Ellis Act Eviction Payments

All households are eligible for $8,700 in relocation assistance.

Additional $5,000 is due if tenancy began prior to January 1, 1999.

Additional $2,500 is due if any of the following are true:

Over the age of 60;
Disabled;
Minor children live in the unit; or
Income is less than 80% of the median of Alameda County.

Estoppel Certificates

admin — Wed, 15 Dec 2010 21:24:27 +0000

Tenant Estoppel Agreements

Updated November 6, 2012

What is a Tenant Estoppel Certificate (also referred to as an Estoppel Agreement)?

When a landlord places a rental property up for sale, the realtor and landlord will request a tenant to complete and sign an estoppel certificate. An estoppel certificate is used to inform a potential buyer of commercial or residential rental property of the rights of existing tenants. The certificate requests information about rental amount, lease terms, protected tenancy status, oral agreements with the landlord, amendments to written lease agreements, promises made by the landlord, and agreements with respect to payment of utilities, e.g. water and gas. In short, the estoppel agreement lays out the nature of the relationship between the landlord and tenant. The goal is to inform any prospective buyers of rental property about the rights of existing tenants.

What is the Effect of an Estoppel Certificate?

The contents of an estoppel agreement are conclusively presumed to be true and bind both landlord and tenant. Plaza Freeway Limited Partnership v. First Mountain Bank, 81 Cal. App. 4th 616 (2000). In fact, the contents of the estoppel agreement are deemed conclusive even if erroneous. Id. Tenants are bound by the contents of an estoppel certificate. Id. and Evid. Code § 622. Landlords are also estopped from challenging the veracity of the certificate. Miner v. Tustin Avenue Investors, LLC, 116 Cal. App. 4th 264 (2004) and Evid. Code § 622. Where an ambiguity exists between the estoppel certificate and the lease or other written document, courts will read the lease and estoppel together to rectify the ambiguity. Id.

What if the Realtor Does Not Forward the Certificate Onto Potential Buyers?

Realtors have a duty to provide prospective purchasers with any estoppel certificates. Civil Code § 2079.16. In addition, a buyer can recover damages against a seller and realtor who submit an erroneous estoppel certificate. Linden Partners v. Wilshire Linden Associates, 62 Cal. App. 4th 508, 531 (1998).

Am I Required to Complete an Estoppel Certificate?

A tenant must sign an estoppel agreement where the written lease contains a provision requiring the tenant to do so. Where a tenant fails to complete an estoppel certificate as mandated by a lease, the tenant can be evicted for breach of lease. Absent a lease provision, a tenant is not required to complete and sign an estoppel agreement.

Should I Sign an Estoppel Agreement?

Even though a lease may not require an estoppel certificate, there are two situations where a tenant should sign an estoppel. First, a tenant should sign an estoppel agreement where the tenant has oral agreements with the landlord that are not memorialized in writing. For example, if a landlord orally agreed to allow a tenant to have a pet, the tenant would be wise to list this in the estoppel. Other examples include agreements about payment of utilities, garage and storage, subletting, use of common areas, rent reductions, security deposit interest, and rent increases. Second, a tenant should sign an estoppel certificate if the tenant lives in a rent-controlled jurisdiction and has protection against eviction because of age, disability or terminal illness. If this applies, it is wise to talk to a tenant rights attorney or an appropriate city agency.