Thursday, September 24, 2015

Passing On Eviction Protections 2.0

On September 22, 2015, the Board of Supervisors passed a set of proposed amendments to the Rent Ordinance. The did it in first reading, and for the most parts of the proposal voted for it 11 to none. This amendment must be a no brainer then, if it met such support, yet the joyous media coverage avoids to talk details. Let's give it a try here.
[Update 11-21-15] - the amendments became effective on November 9, 2015. The Rent Board's published version of the Rent Ordinance now reflects the changes; the multilingual form now required to be attached to the eviction notice is published here.
[Update 12-5-15] - 3 amended and 1 new Rule in 6.xx series became adopted, effective December 4.

First, I would like to make my own comment on the characterization of the event, which seems to be universally described as an anti-greed measure--the greed factor was not at all affected by this amendment. The monetary interest in the landlord-tenant relationship remains the same. There are always two sides to it, and when one side receives less (landlord) or pays more (tenant), that side's interest is hurting. Does not matter what side you are on. For a tenant, the interest to save more in own pocket and pay less for the rent, is the same economical interest as for a landlord to receive more from rent and thus put more to his own pocket. Both sides have other expenses to attend to and a better way to spend those money otherwise taken by rent (or lost in the uncollected rent). The sides are absolutely equal in their desires, even if particular landlords and particular tenants will always have different status or position in life economically (and there are just as many well-to-do tenants as there are poor-as-a-mouse landlords).

We all know the saying that we are all created equal. I never thought of this postulate as a fully stated axiom, mainly because I was observing some obvious inequalities granted to us at birth--e.g., I was born on another side of this planet, in USSR, and thus I formed into an adult different (unequal?) from a similar individual born here in US. It does not make the observed "inequality" bad, it just confirms the fact that differences given to us at birth exist. Recently however, I've heard a better form of this rule, perhaps its fuller version: that we are all born equal in our desires. Even this sounds to be too general (what about differences in tastes?), but it seems to stand true for the most basic desires, like food, air, freedom, piece, recreation and procreation. And in the place we currently live, money can buy you food and secure a chance for recreation or procreation (and, hey, the air is still free!)

With this in mind, I observe that landlords and tenants are equal in their desires for gaining the most the can from that landlord-tenant relationship existing in between them. On the monetary side of it, a tenant wants the most housing for the least rent possible, and a landlord wants the most return from the housing at a least investment.  And that's the whole "greed" deal about it. It is quite naturally observed in both sides and has no negative connotation.

Back to the amendment, it helps to actually read the amendment, before we can discuss the terms. You will note that the articles covering the event contain no link to the actual proposal. I found the summary of it on the Board of Supervisors' agenda list for September 22. You need to scroll down to page 8 to see the whole 11 proposed terms. They are to:
  • 1) prohibit, with certain exceptions, rent increases based on the addition of occupants even where a pre-existing rental agreement or lease permits such an increase;
  • 2) prevent evictions based on the addition of occupants if the landlord has unreasonably refused the tenant’s written request, including a refusal based on the amount of occupants allowed by the rental agreement or lease;
  • 3) require landlords, after certain vacancies, to set the new base rent, for the next five years, as the lawful rent in effect at the time of the vacancy;
  • 4) require that there be a substantial violation of a lawful obligation or covenant of tenancy as a basis for the recovery of possession;
  • 5) require a landlord, prior to seeking recovery of possession, to provide tenants an opportunity to cure the unauthorized addition of the tenant’s family members to the tenant’s unit;
  • 6) require that if a landlord seeks to recover possession based on a nuisance, substantial damage, or substantial interference with comfort, safety or enjoyment, the nuisance, substantial damage, or substantial interference be severe, continuing or recurring in nature;
  • 7) prevent a landlord from seeking recovery of possession solely because the tenant is occupying a unit not authorized for residency;
  • 8) require landlords to state in notices to vacate for certain good cause evictions the lawful rent for the unit at the time the notice is served;
  • 9) require the Rent Board to prepare a form in English, Chinese, Spanish, Vietnamese, Tagalog, and Russian stating that a notice to vacate may lead to a lawsuit to evict and stating that advice regarding notices to vacate is available from the Rent Board;
  • 10) require landlords to attach a copy of the Rent Board form in the primary language of the tenant to each notice to vacate; and
  • 11) require landlords to plead and prove in any action to recover possession that at least one of the grounds of Administrative Code, Section 37.9(a)-(b) stated in the notice to vacate is the dominant motive for recovering possession.
This is the scope of the proposal, sans the important details, which will no doubt surface up soon after the Mayor approves it (he can still veto at least one of the provisions, regarding adding roommates).

How scary is this legislation? Not so much so far (the details may of course change everything).

Nos. 1, 4, 5, 6, 8, and 11 were already law in one form or another even without this proposal, may be in a lesser degree (like No. 5), but still in existence.

No. 2 will depend on its enforcement on interplay with Rule 6.15A, it might be an entirely new treatment of subletting, or may just enlarge "soft prohibition" under Rule 6.15B. I also wonder how it will affect master-tenants regulating their own subtenants, so the whole 6.15 rules family will be up for a re-write, if the mayor does not veto this clause.

No. 3 is new (as in long forgotten old), this is an attempt to do vacancy decontrol, and I predict a lawsuit coming up soon to challenge this.
[Update October 2, 2015: court's striking Ordinance 68-15 in Coyne case is definitely a step in attacking this provision]

No. 7 aims at evicting from the "in-law" units and garden cottages. This is somewhat new and will be an interesting battlefield between the DBI & Planning departments and the Rent Board. Their views on what to do with illegal construction are all but opposite, and how this will be mediated in the middle is something we will learn from practice.

Nos. 9 and 10 nobody cares about. The Rent Board will create a form and every notice will have a copy of it. The post-foreclosure eviction notices already have a similar form, and it does not affect the  actual eviction one way or another.

So the polemic will mainly concentrate on just three parts (two with the veto): subletting, vacancy decontrol, and demolition of illegal units. My opinion may certainly change after I see this implemented in real practice, but it does not look like the end of world yet. Hang on!

[Update 10-9-15: Mayor neither vetoed, nor signed the legislation, and with his deadline now expired, the proposal became a new law]

More real property posts

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1 comment:

  1. I read this proposal in the yesterday's paper and found out that it is so political and so anti landlord. How dare the City wants the landlord to lose control over the property by changing the subleasing rules! And it is very true there are plenty of well to do tenants and poor landlords, but the governments operates under the stereotype if you have a property, you are rich! Wrong perception! Thank you Alex for explaining the points of the proposal. Hopefully common sense will make our mayor the veto certain provisions.