Landlord Tenant Questions and Answers
Does the end of the statewide State of Emergency as of February 28 affect any of the local laws such as Alameda County’s continued eviction moratorium?
The state’s COVID-19 State of Emergency will end on February 28, 2023, as announced by the Governor in October. It is not completely clear what effect the termination of the state of emergency (SOE) based on the Covid-19 pandemic will have when the SOE is lifted at the end of February. At minimum, it will end the application of the price gouging statute based on the pandemic SOE (Penal Code Penal Code Section 396, prohibits raising the price of many consumer goods and services, including rent, by more than 10% after an emergency has been declared.). Also, on January 31, Governor Gavin Newsom signed a proclamation terminating 26 other open States of Emergency dating back to 2017. These include various fires, prior storms and other incidents including the mpox emergency proclaimed in August of last year. The text of the proclamation, with a list of all now-canceled states of emergency, can be found here. GSS_9534-1E-20230130164552 (ca.gov). Those terminations will also terminate application of the price gouging law that was in effect for each.
As for any immediate impact on local eviction moratorium, the picture is less clear. The argument can be made that with the cancellation of the state of emergency, the underpinning for any local ordinance prohibiting evictions during, and based on, the pandemic would be undermined, if not outright withdrawn. However, that is a matter of local/state law interplay, which includes concepts of preemption, that will likely be the subject of additional court challenges in addition to those already underway (see Q&A 2 for an update there).
As always, what is the latest on the lawsuits against the eviction moratoriums in Oakland (and El Cerrito) and Alameda County?
There is good news at least as to the county ordinance applying to cities within Alameda County. As reported last issue, the appellate court in the City of Alameda’s lawsuit against the Alameda County moratorium (City of Alameda v. The Superior Court of Alameda County A165610), issued an order to the county’s superior court to either allow the City to proceed with its eviction cases or ‘show cause’ why not. But the appellate court order did not grant the request by the city of Alameda to rule that the county moratorium could not legally extend to the incorporated areas of the county, including the city of Alameda, which would have been a clear and complete victory. Rather, the appellate court ordered the superior court to simply consider the City’s unlawful detainer application, under the local rule which prohibits unlawful detainers that are not based on the state Ellis Act or a public health and safety claim.
In response, the superior court agreed to issue the summons, along with an order explaining the situation. In its order, the court noted the appellate ruling, and that the county had been invited to submit briefs supporting the moratorium. The county declined to participate (surprisingly, as it was their ordinance being challenged), and the superior court then issued the summons to the City of Alameda, allowing it to proceed on its non-payment of rent case, which had been prevented by the county ordinance. So, a huge step for property owners in incorporated areas of Alameda County, as it would appear that cases in the cities within the county can now proceed on grounds other than ‘public health and safety’ or the Ellis Act.
However, a caveat is required. The tenant defendant may still assert the county moratorium as a defense to the underlying eviction case. Assuming he/she does so, through the local eviction assistance network, the superior court will then be required to make a ruling whether the county ordinance continues to apply to prevent most evictions. That ruling, expected within 2-4 weeks, should be a defining moment for the county ordinance, as least at the local court level. However, clever tenant attorneys in the next case will have one last gasp – which will be to ‘disqualify’ the judge who made that ruling (in a legal step called peremptory challenge of the judge), which will send the next case to a different judge, who could rule just the opposite of the first judge. While not likely, it is not unheard of for different judges to rule on opposite sides of an issue, based on the same legal arguments.
As to the challenge by other plaintiffs to the Oakland and Alameda County moratoriums, and as reported in the last edition of this column, on November 23, the federal district court judge issued an Order denying the motions for summary judgment filed by the plaintiff property owners who were seeking to have both moratoriums stricken as unconstitutional. In response, the plaintiffs sought permission to seek an immediate appeal of that unfavorable ruling issued in November. At a hearing on the request on Feb. 9, Commissioner Laurel Beeler basically put a decision off so she could consider certain cases on other eviction moratoriums from other jurisdictions that are pending for decision in the 9th Circuit Court of Appeals.
So, as some might say, hurry up and wait….
January 2023 AOA News referenced that there is a new Balcony Inspection Law for multifamily housing. It references that property owners must file this newly required report. My questions are: 1) will AOA provide the format or questions required to be addressed in this report, and 2) where is the property owner required to file the completed report?
I assume you are referring to the state law known as SB 721. With the passage of the landmark “Balcony Law,” also known as SB–721, property owners are now financially responsible for periodic, destructive testing of their property’s balconies, decks, and walkways (also known as external elevated elements). And the law doesn’t just make property owners responsible for the inspections and repairs—it also gives them strict deadlines under the threat of civil penalties and heavy fines.
Under SB-721, almost all wood-based external elevated structures have until January 1, 2025, to be inspected. The new balcony law applies to buildings with 3 or more multi-family dwelling units. Property owners have until January 1, 2025, to have their wood-framed external elevated structures inspected by a qualified professional. After that, they must have their external elevated structures inspected every 6 years. Inspections must be performed by (i) licensed architects; (ii) licensed civil or structural engineers; (iii) building contractors with “A,” “B” or “C-5” license classifications issued by the Contractors’ State License Board, with a minimum five years’ experience in constructing multistory wood frame buildings; or (iv) certified building inspectors or officials from recognized state, national or international association. They must not be employed by the local jurisdiction while performing inspections. [Health & Saf.C. § 17973(a).
Additionally, the inspector must present a written report, stamped or signed, to the owner within 45 days of completion of the inspection. The report must advise which, if any, exterior elevated element poses an immediate threat to occupants’ safety and whether it is necessary to prevent occupant access or conduct emergency repairs. Where there is an immediate threat, a copy of the report must be provided to the building owner and the local law enforcement agency within 15 days of completion of the report. [Health & Saf.C. § 17973(c)(4), (d).
Copies of all inspection reports must be kept in the owner’s permanent records for at least two inspection cycles and must be disclosed and delivered to a buyer at the building’s subsequent sale. [Health & Saf.C. § 17973(d).
I own a multi-unit apartment building in Santa Cruz and all the leases I have with my tenants have a clause which requires the tenants to pay the utilities. I am currently paying the gas, water, sewage and trash bills and have been for years even though it’s been the tenant’s responsibility all along. There is only one bill for these utilities and isn’t broken down by apartment. The tenants pay electric because there are separate meters for the electricity. I am wondering if I charge each apartment a fixed amount that added together would be less than the total monthly amount would be permissible. If so would me starting to charge the tenants for a portion of the utilities be considered a rent increase subject to California’s 10% rent increase limit per year or would it just be considered an enforcement of the terms of the lease even though I haven’t enforced that clause in the lease up until now and therefore not considered a rent increase subject to the legal limitation?
Assuming no local rent control law exists in Santa Cruz, the tenancy would likely be covered by the state rent control law AB 1482, which applies to tenants who have been in occupancy at least 12 months and limits rent increases on such a covered tenancy, as you note in your question. Whether ‘reminding’ the tenants that they are responsible for certain utilities under the lease, and then making them pay some portion would be a rent increase or not is impossible to say. An argument could be made either way. I really could not predict the result if you took that action and also did a 10% rent increase, though the exact language of the lease may be significant. But an upset tenant could challenge any amount being imposed that exceexds a total of 10%. Obviously, a total of 10% that includes the newly restored utility charges would be ‘safer’.
There are additional issues involved in charging tenants for their share of commonly billed utility charges, most notably the application of Civ.C. §1940.9, which applies if a residential tenant’s gas or electric meter services both the tenant’s dwelling unit and other areas outside the unit. In such cases, the landlord is subject to special obligations imposed by that statute. First, the landlord must “explicitly disclose” to the tenant, prior to inception of the tenancy (or upon discovery, if after inception of the tenancy), that the tenant’s meter measures electric and/or gas service to an area outside the tenant’s dwelling unit. Then, having made the disclosure, the landlord must then execute a written agreement with the tenant regarding payment for the utility services outside the tenant’s unit. [Civ.C. § 1940.9(a)]. From your description, it seems you are likely in compliance with Section 1940.9, but a review of your lease provision may be appropriate.
I have a tenant on a lease of just under one year that converts to month to month after that. Can I decide not to renew the lease and not provide any reason? If so, does the tenant have any right to claim discrimination, harassment, that I don’t like them, etc?
Assuming (as always, but confirmation always required) no local rent control law exists in Walnut Creek, the tenancy would likely be covered by the state rent control law AB 1482, which applies to tenants who have been in occupancy at least 12 months and requires a ‘just cause’ to terminate such a covered tenancy.
The statute states: Notwithstanding any other law, after a tenant has continuously and lawfully occupied a residential real property for 12 months, the owner of the residential real property shall not terminate the tenancy without just cause, which shall be stated in the written notice to terminate tenancy.”
Thus, it would appear that you are not obligated to renew the lease, and can notify the tenants prior to its termination that they will be expected to vacate at the expiration of the lease. As to claims of retaliation or discrimination, only the surrounding facts could provide any light on that. However, generally, landlords terminate (or choose not to renew) tenancies for a reason, and the tenants may want to know why their lease is not being renewed.
Is a landlord required to provide tenants with a copy of a mold inspection report.
It depends on what the report shows. Landlords who know (or have reason to know) that mold in the rental exceeds permissible exposure limits or poses a health threat, must provide the tenant with a written disclosure of the same. (Cal. Health & Safety Code § 26147.) You were also required to distribute to prospective tenants (before they entered into the lease or rental agreement) a consumer handbook, developed by the State Department of Health Services, describing the potential health risks from mold. (Cal. Health & Safety Code § 26148.)
However, as to the ‘permissible exposure limits,’ that has not yet been objectively established by the state health department. The 2001 Toxic Mold Protection Act (SB 732) directed the California Department of Public Health (CDPH) to determine the feasibility of establishing health-based permissible exposure limits (PELS) for indoor mold. If that were possible, the CDPH was also directed to create programs to develop guidelines for mold assessment, clean-up, and disclosure in residences. However, CDPH responded in 2005 (“Report to the California Legislature on Implementation of the Toxic Mold Protection Act of 2001“) that available evidence did not support the establishment of science-based PELs for indoor molds at that time. This view remains the CDPH position to date. Nevertheless, CDPH also stated that it “agrees with other building and health professionals that indoor dampness, water intrusion, or fungal growth should always be eliminated in a safe and efficient manner.” This advice was expanded in the CDPH Statement on Indoor Dampness and Mold (revised 2016), based on the increased availability scientific information. The latest department position is:
Any building or portion thereof including any dwelling unit, guestroom or suite of rooms, or the premises on which the same is located, in which there exists any of the following listed conditions to an extent that endangers the life, limb, health, property, safety, or welfare of the public or the occupants thereof shall be deemed and hereby is declared to be a substandard building:
(11) Dampness of habitable rooms.
(13) Visible mold growth, as determined by a health officer or a code enforcement officer, as defined in Section 829.5 of the Penal Code, excluding the presence of mold that is minor and found on surfaces that can accumulate moisture as part of their properly functioning and intended use.
So, the standard now seems to be, ‘I know it when I see it…’
Additional information, and copies of the handbook, can be found at https://www.cdph.ca.gov/Programs/CCDPHP/DEODC/EHLB/AQS/Pages/Mold.aspx
Richard Beckman writes a monthly article for Apartment Owners Association Magazine. To see more of his content, visit their site at: https://aoausa.com/magazine/