tag:blogger.com,1999:blog-43456339398364495462024-03-13T20:38:32.805-07:00 Post & FoundA collection of law-related finds and thoughts,
from the past and present.Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.comBlogger111125tag:blogger.com,1999:blog-4345633939836449546.post-44548948955578631702022-12-06T19:11:00.003-08:002022-12-06T19:20:46.822-08:00Alameda County and Oakland City eviction moratoria survived the court challenge<p><span style="font-size: small;">Federal District Court, Judge Laurel Beeler, issued an <a href="https://drive.google.com/file/d/19gqDUjpXgyb2e7myU4D1iLe8thuqyNyT/view?usp=sharing" rel="nofollow" target="_blank">order</a> on November 22, 2022, denying a challenge to the eviction moratoria of the Alameda County and City of Oakland (cases Nos. 3:22-cv-01274 and 3:22-cv-02705). Links to those two ordinances are <a href="https://drive.google.com/file/d/1WEZ3rwq63Xd4wLQl8UqC56OYry5Pp4Ff/view?usp=sharing" target="_blank">here</a> and <a href="https://drive.google.com/file/d/19gqDUjpXgyb2e7myU4D1iLe8thuqyNyT/view?usp=sharing">here</a>.<br /></span></p><p><span style="font-size: small;">In my view, the order is wrong, insofar it is based on a finding that each moratorium is "temporary." There is no practical indication in either moratorium that it will ever expire, except if their respective legislators (County's Board of Supervisors and Oakland's City Council) would some day have a whim to declare the Covid health emergency to be over. This makes it uncertain enough to wonder, what are the limits of declaring an "emergency." In the state concept, it is 180 days. (Gov-t Code § <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=11346.1." target="_blank">11346.1</a>, subd. (e).) I don't see why on the municipal level it should be indefinite, literally meaning that the end of the measure's term is not defined. It might be "temporary" in the court's view, we are all temporary here, but it is still indefinite.<br /></span></p><p><span style="font-size: small;">What would suggest to the local legislators to declare the end of the emergency, what are the measuring factors? We don't know. <br /></span></p><p><span style="font-size: small;">The employment rates are back to the pre-Covid times, with the unemployment historically low and the labor force still needing more people. (<a href="https://data.bls.gov/timeseries/LASST060000000000004?amp%253bdata_tool=XGtable&output_view=data&include_graphs=true" target="_blank">From the U.S. Bureau of Labor Statistics</a>.) Payrolls and wages are reported to "<a href="https://www.cnbc.com/amp/2022/12/02/jobs-report-november-2022.html" target="_blank">blow past expectations</a>," despite the interest rate hikes. Alameda county's unemployment is at <a href="https://ycharts.com/indicators/alameda_ca_unemployment_rate">2.80%</a>, it is right where it was before Covid (2.90% in January 2020). The same story is in the city of <a href="https://ycharts.com/indicators/oakland_ca_unemployment_rate" target="_blank">Oakland</a>. (Around 3.50% now, 3.70% in January 2020.) The Covid cases' rates are <a href="https://covid-19.acgov.org/data.page?#cases-over-time" target="_blank">low</a> in the county. So low that Alameda <a href="https://covid-19.acgov.org/covid19-assets/docs/face-masks/22-03_order_rescinding.pdf" target="_blank"><i>rescinded</i></a> the mask mandate in June of 2022. Oakland <a href="https://www.oaklandca.gov/news/2022/face-mask-requirement-for-large-indoor-events-expires-november-1-2022" target="_blank">did it</a> in November.</span></p><p style="margin-left: 40px; text-align: left;"><span style="font-size: small;">The court has to consider the actual state of affairs in deciding whether the declared emergency exists. It had been held that "<span style="color: black;">while the declaration by the Legislature
as to the existence of the emergency was entitled to great respect, it was not
conclusive; and, further, that a law ‘depending upon the existence of an
emergency or other certain state of facts to uphold it may cease to operate if
the emergency ceases or the facts change even though valid when passed.’ I<b>t is
always open to judicial inquiry</b> whether the exigency still exists upon which
the continued operation of the law depends." (</span><a href="https://supreme.justia.com/cases/federal/us/290/398/" target="_blank"><i style="mso-bidi-font-style: normal;"><span style="color: black;">Home Bldg. & Loan Ass'n v. Blaisdell</span></i></a><span style="color: black;"> (1934) 290 U.S. 398, 442, emphasis added, citing <a href="https://supreme.justia.com/cases/federal/us/264/543/" target="_blank"><i style="mso-bidi-font-style: normal;"><span style="color: black; mso-ansi-language: EN-US; mso-bidi-theme-font: minor-bidi; mso-fareast-language: EN-US;">Chastleton Corp. v. Sinclair</span></i></a><span style="color: black; mso-ansi-language: EN-US; mso-fareast-language: EN-US;"> (1924) 264
U.S. 543, 547–548 ["</span></span><span style="color: black;">a Court is not at liberty to shut its
eyes to an obvious mistake, when the validity of the law depends upon the truth
of what is declared. (citations). And still more obviously so far as this
declaration looks to the future it can be no more than prophecy and is liable
to be controlled by events. A law depending upon the existence of an emergency
or other certain state of facts to uphold it may cease to operate if the
emergency ceases or the facts change even though valid when passed"].)</span></span></p><p class="MsoNormal" style="background: white none repeat scroll 0% 0%; margin-bottom: 12pt;"><span style="font-size: small;">Presumably, these are the same legislators who continue to insist the moratorium should remain in place because the Covid emergency remains a threat. How they reconcile the labor data, the infections' rates, and their own decisions on other aspects of governing the same issue in the same county/city (<i>e</i>.<i>g</i>., the mask mandate), is hard to imagine. What is easier to imagine is what drives those policies to remain in place––the constituency. More to the point--what stops the court to revisit the basis for the emergency?</span></p><p class="MsoNormal" style="background: white none repeat scroll 0% 0%; margin-bottom: 12pt;"><span style="font-size: small;">The danger with this upholding of a indefinite-temporary policy goes beyond just the city of Oakland and county of Alameda and beyond the recent Covid pandemic. It becomes a dangerous precedent, as the vote-hungry legislators from other localities will take a note on this precedent and weaponize it to buy some votes on the cheap. It doesn't even have to be even Covid-related. Any future challenge a community might face could be used as a pretext to stop the operation of applicable statutes and prevent the contracts from being enforced, all without declaring any particular time-frame or conditions, upon which this imposing emergency legislation would sunset. It could remain in force just because some XYZ said so. I hope the appeal of this decision is coming up soon.<br /></span></p>
<p class="MsoNormal" style="background: white none repeat scroll 0% 0%; margin-bottom: 12pt;"><span style="color: black; font-size: small;">
</span>
</p><p></p><div style="border: 0px none; margin: 0px; padding: 0px; position: fixed; right: -9999px; top: 7610.77px;" tabindex="0"><div style="background-color: white; color: black;"><span style="font-size: small;">while
the declaration by the Legislature as to the existence of the emergency
was entitled to great respect, it was not conclusive; and, further,
that a law ‘depending upon the existence of an emergency or other
certain state of facts to uphold it may cease to operate if the
emergency ceases or the facts change even though valid when passed.’ It
is always open to judicial inquiry whether the exigency still exists
upon which the continued operation of the law depends.<br /><br /></span><div class="copyWithRefReference" style="background-color: white; color: black;"><span style="font-size: small;"><i><u>Home Bldg. & Loan Ass'n v. Blaisdell</u></i> (1934) 290 U.S. 398, 442</span></div></div></div><p><span style="font-size: small;"> </span></p><p><br /></p><div style="border: 0px none; font-size: 12pt; margin: 0px; padding: 0px; position: fixed; right: -9999px; top: 7610.77px;" tabindex="0"><div style="background-color: white; color: black;">that
a law ‘depending upon the existence of an emergency or other certain
state of facts to uphold it may cease to operate if the emergency ceases
or the facts change even though valid when passed.’ It is always open
to judicial inquiry whether the exigency still exists upon which the
continued operation of the law depends. <br /><br /><div class="copyWithRefReference" style="background-color: white; color: black;"><i><u>Home Bldg. & Loan Ass'n v. Blaisdell</u></i> (1934) 290 U.S. 398, 442</div></div></div><p><br /></p><p><br /></p>Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-50821843330081447212020-09-12T23:12:00.004-07:002021-01-03T19:23:15.906-08:00Tenant Relief Act of 2020 - Forms<p>The Tenant Relief Act of 2020 has passed into law, and its full text is available <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB3088" target="_blank">here</a>. It is rather a lengthy document, because it amends and adds quite a few statutes. A myriad of articles is written on this new law, and I am only adding mine to cover two practical areas of the subject: the forms and the quirky part in the due-date language, regarding the landlord's obligation to give notice.</p><p><span></span></p><a name='more'></a> <b>Where to get the forms? </b><br /><p></p><p>Plenty of organizations offer their forms, inviting you to subscribe or purchase them through the membership. But you don't need a member-only proprietary form in this instance, because the state publishes them for free, and provides them in several languages, <a href="https://landlordtenant.dre.ca.gov/landlord/forms.html" target="_blank">here</a> and <a href="https://landlordtenant.dre.ca.gov/tenant/forms.html" target="_blank">here</a> (you need both links). But don't just download them once for any regular use; instead, download a new form each time you are ready to send it, because the forms might be updated since the last time.</p><p>Also, if it comes to an eviction notice (15-day in length, plus weekends and holidays), the form notice from this website may, for several municipalities or counties, be only a part of the required documents to be served. For example, in San Francisco, there is an additional form (Form 1010) to be included. You can download it <a href="https://sfrb.org/forms-center" target="_blank">here</a>, current version is dated September 3, and expected to receive updates. (As of September 29, the form was ruled out as no longer required by the Mayor's office of Housing and Community Development (<a href="https://sfrb.org/article/mohcd-publishes-new-rules-and-regulations-re-local-eviction-moratorium" target="_blank">link</a>)).<br /></p><p><b>When to give notice under CCP § 1179.04?</b></p><p>Out of the entire new code, I personally think that section 1179.04 is the most dangerously ambiguous one. First, it imposes a duty on a landlord to give notice by September 30, 2020, or waive her rights to demand previously unpaid rent. Second, it starts as clearly applying to those who did not pay rent in the past, but then blurs those lines and starts referring to the times after September 1.<br /></p><p>The statute says: «notice to tenants who, as of September 1, 2020, have not paid one or
more rental payments that came due during the protected time period.» The "protected time period" is "between March 1, 2020, and August 31, 2020." (CCP § 1179.02 subd. (f)). So, from this perspective, it clearly applies only the tenants who did not pay rent before.<br /></p><p>So, if the tenant did not pay as of August 31, 2020, it is a non-brainer, serve the notice.</p><p>But here comes the second problem--since we don't know the future--what if a tenant becomes delinquent on October 1st, or any subsequent time within the next defined time length the "transition time period," (CCP § 1179.02 subd. (i)), defined as "between September 1, 2020, and January 31, 2021"? The statute created to deal with this problem is section 1179.03, subd. (c). There, it also has its own disclosure to include, a bit different in text than the one under 1179.04, subd. (a).<br /></p><p>Section 1179.04 may confuse things for those subsequent delinquencies. This is because its subsection (c)(1) refers and includes notices under 1179.03, subd. (c) (the notices given for the rent late in transition period). <br /></p><p>And the language in the 1179.04 notice itself covers "failing to make rental payments due between March 1, 2020, and January 31, 2021," including both the "protected" and "transition" periods. While the notice itself for the transition period has its own disclosure (CCP § 1179.03 subd. (c)(4)), it is a shorter version, and it already implies some fault (<i>e.g</i>. it says "you will still owe the full amount of rent to the landlord"). Conversely, the notice under section 1179.04 is entirely informational.</p><p>Since this is a newly baked statute straight out of legislature's oven, there is no guidance to it yet, and we are still in September, so nobody has got an interpretation from the court yet. My personal suggestion (and only a suggestion this is, more like a feeling) is this: in some circumstances, it might be prudent to serve the notice under 1179.04 prior to September 30, 2020, to the tenants either paying or not paying, as a prophylactic measure in ensuring that you don't waive a right to collect rent. When/If time comes later and a tenant failed to pay rent during the "transition period," then the notice under 1179.03(c), with its own disclosure form, will be served.</p><p>The circumstances could be the history of the past performance and the expectations of the future performance on the payments of rent, if there are any to factor-in. Also note that the statute covers separately the "high-income tenant[s]" (defined under 1179.02.05 subd. (a)(1)(A)). Just in case you were not already confused enough.<br /></p><p>And don't forget that a blank form of the declaration is to be served with each of the these notices. The text of the declaration is stated in CCP § 1179.02 subd. (d), and it is also available as a free form from the ca.gov website, <a href="https://landlordtenant.dre.ca.gov/tenant/forms.html" target="_blank">here</a>.<br /></p><p><br /></p><p><br />
_____________________<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
<br />
If
you are concerned about your rights and obligations in a
landlord-tenant relationship, make your first step toward taking control
over the circumstances, and call my office at (415) 987-7000. I will be
glad to assist in guiding you through the jungle. The only thing you
can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides
a confidential assessment of your particular scenario, free of charge,
and I will share with you the results of the analysis along with my
thoughts on available solutions.</p><p><br /></p><p><br /></p>Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-87290255360623056482020-05-08T22:58:00.000-07:002020-05-29T16:09:29.794-07:00Bay Area courts re-opening<div dir="ltr" style="text-align: left;" trbidi="on">
This week, with the "Stage 2" lessening, finally came the tide of the courts reopening.<br />
<br />
[Update May 29] But not the federal bankruptcy courts - - just announced to remain close to public through September (<a href="http://www.canb.uscourts.gov/content/page/court-operations-during-covid-19-outbreak" target="_blank">link</a>) <br />
<br />
<b>Alameda</b> court is now accepting almost all civil filings, makes hearing reservations, and offers hearings via phone and video remote access: <a href="http://www.alameda.courts.ca.gov/Resources/Documents/Emergency%20Rule%201.8a%20-%20AMENDED%20May%207%20-%20FINAL(4).pdf" target="_blank">Rule 1.8a</a> and <a href="http://www.alameda.courts.ca.gov/Resources/Documents/Rule%203.30%20-%20AMENDED%20May%207%20-%20FINAL.pdf" target="_blank">Rule 3.30</a> (May 7, 2020, version). Appeals and unlawful detainers remain on hold. Alameda court adopted "<a href="https://www.bluejeans.com/use-cases/legal" target="_blank">Blue Jeans</a>" technology for video appearances.<br />
[Update May 20, 2020] - now says the court mostly (yet remotely) re-opens (<a href="http://www.alameda.courts.ca.gov/Resources/Documents/COVID-19%20May%2020%20Press%20Release.pdf" target="_blank">link</a>). <br />
<br />
<b>Contra Costa</b> starts conducting remote hearings on May 18, as its <a href="https://www.cc-courts.org/local-rules/docs/AmendedSecondEmergencyLocalRules-Civil.pdf" target="_blank">May 5</a> press-release states. <br />
On May 13, the updated <a href="https://www.cc-courts.org/general/docs/PressRelease-COVID19-05-13-20.pdf" target="_blank">order</a> was issued, it looks like the court reopened on May 26 for physical access to the hearings (essential parties only, no records' department, and wear a mask of course). But there is no mentioning of remote hearings in the order.<br />
<br />
<b>Santa Clara</b> court in today's order promised to reopen Law & Motion on May 19 and Appellate division on May 22 (May 8, 2020, <a href="http://www.scscourt.org/general_info/news_media/newspdfs/General%20Order%20on%20Court%20Operations%20with%20Attached%20Table%20May%208%202020.pdf" target="_blank">order</a>).<br />
<br />
Also today, <b>San Mateo</b> published its reopening <a href="https://www.sanmateocourt.org/documents/court_news_and_notices/050820.pdf" target="_blank">order</a>, it has several dates there for different purposes, but the general note is that it is reopening during the next 2 weeks for remote hearings. Entered on May 18, an updated <a href="https://www.sanmateocourt.org/documents/court_news_and_notices/051820a.pdf" target="_blank">order</a> hints at June 12 as the reopening date, with the unlawful detainers pushed further down, at least to <a href="https://www.sanmateocourt.org/documents/court_news_and_notices/051820b.pdf" target="_blank">June 22</a> for the earliest trial date.<br />
<br />
<b>San Francisco</b> court was silent this week, no new orders since <a href="https://www.sfsuperiorcourt.org/sites/default/files/pdfs/COVID-19/Implementation%20Order%20-%20COVID-19%2020%2004%2030.pdf?1589002036623" target="_blank">April 30</a>, but the e-filing does go through, as it was going before. Even better, limited UD cases are now also included in the e-filing system. Main operations are still expected to reopen after June 1, with the housing court kicking in after June 22nd.<br />
[May 27 update] - the court opens up mostly (and mostly for remotely handled hearings) on June 1 (<a href="https://www.sfsuperiorcourt.org/sites/default/files/pdfs/COVID-19/Restoring%20Services%20Public%20Notice%2020%2005%2027.pdf?1590647932606" target="_blank">link</a>). The emergency is however continued through June 19 (<a href="https://www.sfsuperiorcourt.org/sites/default/files/pdfs/COVID-19/CJ%20Emergency%20Order%20-%20COVID-19%2020%2005%2027.pdf?1590647932606" target="_blank">order</a>).<br />
<br />
<b>Marin</b> county court also remains closed until May 29 based on its own <a href="https://www.marincourt.org/data/hpnews/310.pdf" target="_blank">April 30</a> order, no word on a sooner reopening there yet. May 26 order <a href="https://www.marincourt.org/data/hpnews/313.pdf" target="_blank">confirms</a> the date and provides some more detail, all matters to proceed <a href="https://www.marincourt.org/data/hpnews/312.pdf" target="_blank">remotely</a> from June 1 on. Marin court adopted Zoom for video appearances, and those appearances are free of charge.<br />
<br />
The above news are welcomed, I was wondering why not to keep the remote hearings and e-filing going, which are mostly available with the help of the CourtCall and e-filing providers (although not each court fully accepts e-files yet). Coming into the court in person is still a risky proposition, but remotely it could be all done, the technology is there. Keeping the courts open is important, and it can be done without physical contact for a large chunk of operations.<br />
<br />
But please remain careful and avoid coming to courts in person. Why I am glad the courts are reopening for remote hearings, I don't understand why the lessening is made under the banner of an improving virus situation. Look at the <a href="https://update.covid19.ca.gov/#top" target="_blank">graphs</a>, published by the state (update.covid19.ca.gov). If these were the graphs of some stock, I would say the trends of both the cases and the deaths are still creeping up, maybe slower, but not giving up yet. And while the number of cases' growth is not just due to the spread, but also because of the increased testing, the deaths are only increasing with the virus spread, and they are not declining. We went into the quarantine when there were recorded 3-4-9 deaths per day. We now have the latest spikes and valleys between 45-98 and 39-95 runs, I mean, over 10 times more deaths now from when the complete shutdown was ordered. Remote court operations are great, but when we need to be physically there, remember that there is no vaccine yet, so the risk of infection remains the same, hanging solely on the chance that each court visitor (and each co-commuter on the way to the court and back) had a mask or stayed home.<br />
[update May 27]: we do now have "lows" in 20-19 region, and lower heights too, so the overall "curve" looks flat or even declining a bit, in approximation, but in no way ceasing or falling (<i>i</i>.<i>e</i>., after several days of declining, today's number of deaths was 70). <br />
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<br /></div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-17008581515911389672020-05-08T15:06:00.003-07:002020-05-08T15:06:50.185-07:00Intermediate Length Occupancy Ordinance passed<div dir="ltr" style="text-align: left;" trbidi="on">
On May 5, 2020, the Board of Supervisors accepted in first reading the <a href="https://sfgov.legistar.com/View.ashx?M=F&ID=8334634&GUID=1FBA1010-32CB-49C7-B412-0B63B8456228" target="_blank">fifth version</a> of the new "Intermediate Length Occupancy" regulation (<a href="https://sfgov.legistar.com/LegislationDetail.aspx?ID=4205656&GUID=5C1726B1-EB8B-4D54-B9B8-595E5BC622FB&Options=ID%7cText%7c&Search=Intermediate+Length+Occupancy" target="_blank">link</a>).<br />
<br />
The ordinance amends S.F. Planning Code "to create the Intermediate Length Occupancy
residential use characteristic," and implements the consequent protections and enforcement in the Rent Ordinance <br />
<br />
<a name='more'></a>This newly minted occupancy is defined as «a Dwelling
Unit offered for <b>occupancy</b> by a <b>natural person</b> for an <b>initial stay</b>, whether through lease, subscription,
license, or otherwise, <b>for a duration of greater than 30 consecutive days but less than one year</b>. This
characteristic is subject to the requirements of Section 202.10.» I put the emphasis on the key wording: it applies to natural persons who lease these properties (rather than a corporate lease), for residential purposes, and it is measured against the initial period of the lease, when such period is between 30 days and 1 year. In other words, a regular month-to-month lease would also fall into this category (if its initial term is 1 month), unless it is specified that the lease remains in force for at least a year.<br />
<br />
The "ILOs" will require a permit, and are prohibited in the buildings with 3- or lesser units (S.F. Planning Code Sec. 202.10). 4- to 9-unit buildings may only have up to 25% under the ILO permit, and for the buildings with 10+ units the cap is at 20% plus it requires a conditional-use permit. (<i>Id</i>.) Also excluded are rent-controlled units, buildings built or permitted to be built after the date of this ordinance, and the units built under the below-market subsidized housing.<br />
<br />
The total number of ILOs in the city is set at 1,000, so I may only suggest, as it was the case before with the hard-liquior licenses and cab tokens, the sooner one applies, the better one's chances will be in getting it.<br />
<br />
The rent-control related enforcement will be codified in the new section of S.F. Admin. Code No. 37.9F.<br />
<br />
<br />
<br />
_____________________<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
<br />
If
you are concerned about your rights and obligations in a
landlord-tenant relationship, make your first step toward taking control
over the circumstances, and call my office at (415) 987-7000. I will be
glad to assist in guiding you through the jungle. The only thing you
can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides
a confidential assessment of your particular scenario, free of charge,
and I will share with you the results of the analysis along with my
thoughts on available solutions.<br />
<br />
<br />
<br /></div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-67310274481971308372020-04-29T22:39:00.002-07:002020-04-29T22:39:39.124-07:00Compliance with the statewide rent control requirements<div dir="ltr" style="text-align: left;" trbidi="on">
<div dir="ltr" style="text-align: left;" trbidi="on">
The set of statutes defining the California statewide rent- and eviction-control were enacted back in September 2019 (the <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1482">AB 1482</a> bill). For the most part, it is a set of prohibitions, regulating how the rent can be raised or the tenancy terminated, in effect since January 1, 2020. But the statutes also require of the landlords to include new language in their leases, and these requirements kick in on July 1, 2020. This article is written to help you not to overlook them.<br />
<a name='more'></a><br />
The legislation is reflected in Civil Code sections <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1946.2.">1946.2</a>, <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1947.12.">1947.12</a>, and <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1947.13.">1947.13</a>. Section 1947.13 does not contain disclosure requirements, so we will concentrate on the first two. For the ease of reference, section 1946.2 is the "just cause" eviction-control statute, and section 1947.12 is about the rent-control. All three clauses are defined in section 1946.2, and the last of those is also referenced in section 1947.12, which section does not add any other or different clauses, nor does it refer to the first two clauses from 1946.2.<br />
<br />
Section 1946.2 defines the grounds, for which the lease can be terminated, and what properties or property owners are exempt from it. Check if you and your property are exempt. If no exemption applies, then these are the two provisions in the lease for you to consider, for any lease entered on or after July 1, 2020. If the exemption applies, surprisingly the statute is not done with you yet even then, and the third provision is required, to inform the tenant about the exempt status of the tenancy. I list the exemptions in this post for both sections.<br />
<br />
<u>First</u>, the optional clause to include regarding the landlord's right to do an owner-move-in eviction later. If this clause is not included, it would have to be made part of the lease as the lease's modification, or otherwise the tenant would have to agree in writing to the landlord's right to do the owner-move-in. CC § 1946.2(b)(2)(A)(ii).<br />
<br />
This recommended optional addition to the lease language is a provision of the lease stating that it <b>«allows the owner to terminate the lease if the owner, or their spouse, domestic partner, children, grandchildren, parents, or grandparents, unilaterally decides to occupy the residential real property.»</b> (<i>Id</i>.)<br />
<br />
If it is not in the lease at the time of its creation, it can be added on the lease's renewal, and tenant's refusal to this modification aparently constitutes a just cause of termination itself. (This is from reading together the last sentence in CC § 1946.2(b)(2)(A)(ii) and the referred therein CC § 1946.2(b)(1)(E)).<br />
<br />
<u>Second</u>, is the mandatory inclusion, under CC § 1946.2(f)(3), for the leases entered on or after July 1, 2020 (it is optional but recommended for the earlier leases):<br />
<br />
<div style="text-align: left;">
<b>«California law limits the amount your rent can be increased. See Section 1947.12 of the Civil Code for more information. California law also provides that after all of the tenants have continuously and lawfully occupied the property for 12 months or more or at least one of the tenants has continuously and lawfully occupied the property for 24 months or more, a landlord must provide a statement of cause in any notice to terminate a tenancy. See Section 1946.2 of the Civil Code for more information.»</b></div>
</div>
<br />
If it is not included in the lease, or the lease predates July 1, 2020,
then the same notice has to be served on the tenant no later than August
1, 2020. CC § 1946.2(f)(1)–(3). <br />
<br />
The notification or the lease provision shall be in no less than 12-point type. CC § 1946.2(f)(3). It also should be in compliance with the foreign language provisions of CC § <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1632">1632</a> (a requirement to keep in mind for all three of these clauses). (<i>Id</i>.)<br />
<br />
The <u>third</u> disclosure is for the exempt tenancies. Exemptions are listed in subsections (e) and (g) of the statute. The language to include in those exempt leases, commencing from July 1, 2020, is this:<br />
<div dir="ltr" style="text-align: left;" trbidi="on">
</div>
<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
<b>«This property is not subject to the rent limits imposed by Section 1947.12 of the Civil Code and is not subject to the just cause requirements of Section 1946.2 of the Civil Code. This property meets the requirements of Sections 1947.12 (d)(5) and 1946.2 (e)(8) of the Civil Code and the owner is not any of the following: (1) a real estate investment trust, as defined by Section 856 of the Internal Revenue Code; (2) a corporation; or (3) a limited liability company in which at least one member is a corporation.» CC § 1946.2(e)(8)(B)</b><br />
<br />
The above language is also required under the rent-control statute, CC § 1947.12(d)(5)(B).<b><br /></b></div>
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</div>
<div dir="ltr" style="text-align: left;" trbidi="on">
<br />
The <u>exemptions</u> under CC § 1946.2 are:</div>
<ul style="text-align: left;">
<li>Transient and tourist hotel occupancy as defined in subdivision (b) of Section 1940.</li>
<li>Housing accommodations in a nonprofit hospital, religious facility, extended care facility, licensed residential care facility for the elderly, as defined in Section 1569.2 of the Health and Safety Code, or an adult residential facility, as defined in Chapter 6 of Division 6 of Title 22 of the Manual of Policies and Procedures published by the State Department of Social Services.</li>
<li>Dormitories owned and operated by an institution of higher education or a kindergarten and grades 1 to 12, inclusive, school.</li>
<li>Housing accommodations in which the tenant shares bathroom or kitchen facilities with the owner who maintains their principal residence at the residential real property.</li>
<li>Single-family owner-occupied residences, including a residence in which the owner-occupant rents or leases no more than two units or bedrooms, including, but not limited to, an accessory dwelling unit or a junior accessory dwelling unit.</li>
<li>A duplex in which the owner occupied one of the units as the owner’s principal place of residence at the beginning of the tenancy, so long as the owner continues in occupancy.</li>
<li>Housing that has been issued a certificate of occupancy within the previous 15 years.</li>
<li>Residential real property that is alienable separate from the title to any other dwelling unit, provided that <b>both</b> of the following apply:</li>
</ul>
<div dir="ltr" style="text-align: left;" trbidi="on">
<div style="margin-left: 5%;">
(A) The owner is not any of the following:</div>
<div style="margin-left: 10%;">
(i) A real estate investment trust, as defined in Section 856 of the Internal Revenue Code.</div>
<div style="margin-left: 10%;">
(ii) A corporation.</div>
<div style="margin-left: 10%;">
(iii) A limited liability company in which at least one member is a corporation.</div>
<div style="margin-left: 5%;">
(B) (i) The tenants have been provided written notice that the residential property is exempt from this section using the statement we just covered above (the "third" provision).</div>
<ul style="text-align: left;">
<li>Housing restricted by deed, regulatory restriction contained in an agreement with a government agency, or other recorded document as affordable housing for persons and families of very low, low, or moderate income, as defined in Section 50093 of the Health and Safety Code, or subject to an agreement that provides housing subsidies for affordable housing for persons and families of very low, low, or moderate income, as defined in Section 50093 of the Health and Safety Code or comparable federal statutes.</li>
<li>The tenancy is subject to a local / municipal rent- or eviction-control ordinance, provided that such ordinance either precedes this statute (existed on or before September 1, 2019), or, if it was enacted after September 1, 2019, that it only preempts this statute if it is "more restrictive." This last exemption is from subdivision (g) of the statute, all others are from (e).</li>
</ul>
<br />
The <u>exemptions</u> under CC § 1947.12 are:<br />
<ul style="text-align: left;">
<li>a new lease (this one is found in subd. (b), the rest below under subd. (e))</li>
<li>Housing restricted by deed, regulatory restriction contained in an agreement with a government agency, or other recorded document as affordable housing for persons and families of very low, low, or moderate income, as defined in Section 50093 of the Health and Safety Code, or subject to an agreement that provides housing subsidies for affordable housing for persons and families of very low, low, or moderate income, as defined in Section 50093 of the Health and Safety Code or comparable federal statutes.</li>
<li>Dormitories constructed and maintained in connection with any higher education institution within the state for use and occupancy by students in attendance at the institution.</li>
<li>Housing subject to rent or price control through a public entity’s valid exercise of its police power consistent with Chapter 2.7 (commencing with Section 1954.50) that restricts annual increases in the rental rate to an amount less than that provided in subdivision (a).</li>
<li>Housing that has been issued a certificate of occupancy within the previous 15 years. </li>
<li>Residential real property that is alienable separate from the title to any other dwelling unit, provided that both of the following apply:</li>
</ul>
<div style="margin-left: 5%;">
(A) The owner is not any of the following:</div>
<div style="margin-left: 10%;">
(i) A real estate investment trust, as defined in Section 856 of the Internal Revenue Code.</div>
<div style="margin-left: 10%;">
(ii) A corporation.</div>
<div style="margin-left: 10%;">
(iii) A limited liability company in which at least one member is a corporation.</div>
<div style="margin-left: 5%;">
(B) (i) The tenants have been provided written notice that the residential real property is exempt from this section using the statement informing about the exemption, as mentioned above, the one starting with the language «This property is not subject to the rent limits ...»</div>
<ul style="text-align: left;">
<li>A duplex in which the owner occupied one of the units as the owner’s principal place of residence at the beginning of the tenancy, so long as the owner continues in occupancy.</li>
</ul>
_____________________<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
<br />
If
you are concerned about your rights and obligations in a
landlord-tenant relationship, make your first step toward taking control
over the circumstances, and call my office at (415) 987-7000. I will be
glad to assist in guiding you through the jungle. The only thing you
can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides
a confidential assessment of your particular scenario, free of charge,
and I will share with you the results of the analysis along with my
thoughts on available solutions.</div>
</div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-8812011761247439442019-09-11T17:32:00.002-07:002019-09-11T17:38:06.534-07:00California joins Oregon in approving statewide rent control<div dir="ltr" style="text-align: left;" trbidi="on">
This was expected to pass for a few months, and just <a href="https://www.mercurynews.com/2019/09/11/in-major-victory-for-tenants-california-lawmakers-pass-sweeping-rent-cap-bill/">happened</a> now. The bill is expected to be signed in to law in a matter of days. Even municipalities with already existing local rent- and eviction-control ordinances may see a significant impact, because the statewide law will incompass buildings previously excluded through the year of completion (in San Francisco, it raises the cut-off from 1978 to 2004, a 15-year mark). As to the areas previously excluded, those where rents used to increase by large margins will be the first to feel the difference. </div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-48014517789762032412019-05-30T08:02:00.002-07:002019-09-11T17:34:10.767-07:00Statewide rent control is coming to California. Like now.<div dir="ltr" style="text-align: left;" trbidi="on">
[2019-09-11 UPDATE] it has <a href="https://www.mercurynews.com/2019/09/11/in-major-victory-for-tenants-california-lawmakers-pass-sweeping-rent-cap-bill/">passed</a> the Senate today. <br />
<br />
This is just in. The bill passed the Assembly and is expected to pass the Senate as well:<br />
https://www.mercurynews.com/2019/05/29/california-rent-cap-bill/amp/<br />
<br />
Current version of the bill is <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1482">here</a>.<br />
Related to is Assembly bill on "just cause" eviction control is moving along as well, progress is reported <a href="https://leginfo.legislature.ca.gov/faces/billTextClient.xhtml?bill_id=201920200AB1481">here</a>.<br />
<br />
All of the above is despite last Fall's failure to win voters' consent to similar measures at the poll, the "<a href="https://ballotpedia.org/California_Proposition_10,_Local_Rent_Control_Initiative_(2018)">Proposition 10</a>."<br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-71938673411510356502019-05-29T09:43:00.001-07:002019-05-29T09:44:01.001-07:00waste of time as sanctionable conduct<div dir="ltr" style="text-align: left;" trbidi="on">
In preparation to my second visit to London with our Bar's Litigation Section (called "<a href="http://aweekinlegallondon.com/">A Legal Week In London</a>," highly recommended), I was sharing my experiences from my first trip in 2015 with colleagues, and the discussion quickly centered on what differences I had then observed between how the courts operate there and here. My observations are from the ground up: I appear regularly in law & motion and trial settings, and so can only compare from a view of a field practitioner. I make this comment because our visiting group in London included all kinds of members, from transactional attorneys, to appellate practitioners, to in-house counsel, and even judges and one appellate judge. So, what may have appeared noticeable in differences for them, might not strike me a worthy of note at all.<br />
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Aside from obvious differences in the UK from the US legal system everybody knows about (<a href="https://www.judiciary.uk/about-the-judiciary/the-justice-system/history/">wigs and robes</a>, <a href="https://uk.usembassy.gov/u-s-citizen-services/attorney/">solicitors and barristers</a>, <a href="https://www.legalcheek.com/2019/05/wannabe-barrister-turned-down-for-pupillage-100-times-fails-in-high-court-bid-for-first-six-exemption/">strict</a> <a href="https://www.legalcheek.com/2019/04/should-i-stop-chasing-pupillage/">pupilage</a> requirements, different approach on conflict of interest (barristers from the same firm can <a href="https://goodmanray.com/2019/04/15/difference-between-lawyer-solicitor-barrister/">represent opposing parties</a>, due to the "barn" firm concept with which barristers contract), different concept of constitutional law, tribunal judges who <a href="https://www.judiciary.uk/about-the-judiciary/judges-career-paths/becoming-a-tribunal-judge/">do not require</a> legal background or license, same for <a href="https://www.judiciary.uk/about-the-judiciary/judges-career-paths/becoming-a-magistrate/">magistrate</a> judges, etc.) there were nuances, which I did not know or read previously about, and I think they are not reflected in the literature covering UK legal process, because the observer would be from UK him/herself. Thus, it all would appear natural and a matter-of-fact conduct to a write, not worthy of making note. Not for someone like me, coming from a jurisdiction with a different standard of practicing conduct, not at all a stranger to how slow the wheels of justice might be turning (for the example, I am riting this post, while sitting in queue to have my motion heard, the wait now going over an hour).<br />
<br />
The above comment spoils that striking difference I noticed foremost in UK courts: it was that a judge and all those involved in a given court hearing, were operating with urgency. The judge would enter the room and approach his seat in a hurry, and when the hearing is adjourned or put on any recess, the judge leaves the room in no slower pace, almost instantaneously. As a group, we were taken to see different proceedings in different courts, and everywhere, for each role-player of a proceeding, it was as if they were almost running, except when during the hearing itself. I asked why, and I was told that this is a tradition of showing respect to time, as an nonrenewable resource for everyone involved. It was observed by Sir Edward Coke in <a href="https://oll.libertyfund.org/titles/coke-selected-writings-of-sir-edward-coke-vol-ii">Part II</a> of his Institutes that it is person's right to have justice speedily without delay, and that an improper delay of trial is in itself a form of denial of justice ("Wee shall not sell deny, or delay Justice and right"). See, US Sup. Ct. commentary on this is in <i><a href="https://supreme.justia.com/cases/federal/us/386/213/">Klopfer v. State of N.C</a></i>. (1967) 386 U.S. 213, 224). In <i><a href="https://scholar.google.com/scholar_case?case=7961533765406931262&q=Cooke+v.+U.S.+(1875)+91+U.S.+389&hl=en&as_sdt=2003">Cooke v. U.S</a>.</i> (1875) 91 U.S. 389, 397, the court linked unnecessary delay to unreasonable, from that to negligence "which throws the burden of the loss upon him who is guilty of it, rather than upon one who is not."<br />
<br />
So, having the time on my hands (since I am sitting in wait for my motion being heard), I looked up what might California courts had said about the concept. After all, this same argument to make in today's Federal court is easy, it is codified in FRCP <a href="https://www.law.cornell.edu/rules/frcp/rule_11">Rule 11</a>(b)(1), requiring that the one who signs and submits any paper to the court does not do so for an unnecessary delay. It is a duty, part of the signor's "personal, nondelegable responsibility" <i><a href="https://scholar.google.com/scholar_case?case=15389582717904965509&q=Pavelic+%26+LeFlore+v.+Marvel+Entertainment+Group+(1989)+493+U.S.+120&hl=en&as_sdt=2003">Pavelic & LeFlore v. Marvel Entertainment Group</a></i> (1989) 493 U.S. 120, 126. Taking the rule as a starting point, one can find enough authorities confirming it in every circuit.<br />
<br />
In California, there is, of course, the general acknowledgement and codification of "<a href="https://www.courts.ca.gov/documents/BTB_XXII_VK_1.pdf">judicial economy</a>" principle and the "fast track" rules for adjudicating cases within a timeframe of set number of years (CCP § <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=583.110.">538.110</a> <i>et seq</i>.), but I was rather looking into a doctrine regarding more day-by-day conduct, because one can spend a year doing nothing, and still look as if proceeded in compliance with the fast-track requirements.<br />
<br />
Most concerned with the concept of wasted time turned out to be the California Workers' Compensation Appeals Board. Several decisions of CWCAB chastise slow practitioners for delays. However, in the regular appellate court decisions the concept is brought up scarcely, especially if we look for a civil dispute. An illustrating decision condemning waste of time of both the court and other litigants as sanctionable conduct is very recent, it is <i><a href="https://scholar.google.com/scholar_case?case=6932767889733682640&q=Bucur+v.+Ahmad+(2016)+244+Cal.App.4th+175&hl=en&as_sdt=4,5">Bucur v. Ahmad </a></i>(2016) 244 Cal.App.4th 175, 195. It is summarized in a quote: «the appellate system and the taxpayers of this state are damaged by what amounts to a waste of this court's time and resources and thus the appropriate measure of sanctions should be sufficient to compensate the expense of processing, reviewing and deciding this appeal. ... Accordingly, we impose sanctions.» <i>Bucur </i>cited a few cases as the basis of its decision, and tracing those citations came down to <i><a href="https://scholar.google.com/scholar_case?case=79836395609129880&q=Bennett+v.+Unger+(1969)+272+Cal.App.2d+202&hl=en&as_sdt=4,5">Bennett v. Unger</a></i> (1969) 272 Cal.App.2d 202, 211 disapproved of on other grounds by <i><a href="https://scholar.google.com/scholar_case?case=14964225331022353193&q=brown+v.+Super.+Ct.+(1970)+3+Cal.3d+427+Benett&hl=en&as_sdt=4,5">Brown v. Super. Ct</a>. </i>(1970) 3 Cal.3d 427: «A frightful and frightening backlog of appeals, few of which, one hopes, will match this one in frivolity has become further swollen by the time required to review the absurd contentions made here. This deserves more than censure. It necessitates sanctions.»<br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-22561678328935661402018-12-14T14:45:00.001-08:002018-12-14T14:47:21.434-08:00Landlord's duty to update contact information - CC § 1962(c) interpreted by the court<div dir="ltr" style="text-align: left;" trbidi="on">
In <i><a href="https://scholar.google.com/scholar_case?case=12736433362513145141&q=DLI+Properties+LLC+v.+Hill&hl=en&as_sdt=4,5">DLI Properties v. Hill</a></i>, (Los Angeles App. Dep't Super. Ct., Sept. 17, 2018, No. BV 032016, 2018 WL 6192245) the court addressed the recently added sub-division (c) to Civil Code Section 1962, which provides that the landlord is barred from evicting a tenant for non-payment of rent during the period such landlord failed to inform the tenant about a change in the contact information.<br />
<br />
This may apply in a rent-controlled jurisdiction, such as San Francisco, where the local municipal ordinance also contains requirements for the owners to inform about the changes.<br />
<br />
<a name='more'></a><b>First, about the statute and the <i>DLI Properties</i> case</b>.<br />
<br />
The statewide statute itself (<a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1962">link</a>) requires a landlord to make certain disclosures and within 15 days from execution give the tenant a copy of the written lease [sub-d(a)(4)] or a statement summarizing the terms of the oral lease [sub-d(b)]. The subdivision (c) added in 2013 also imposes a running duty to keep the information current and update the tenant within 15 days of a change, such as in a succeeding owner or manager. Same subdivision contains a mysterious sentence saying, on one hand, that the landlord is barred from evicting a tenant for the period while the landlord is not in compliance, while, on another hand, confirming that the tenant is not relieved from the rent payment obligation during that period. Whether it means that recovery of such unpaid rent can be done by other means, or that recovery can be done after the landlord is back in compliance, is something remaining in want for a further interpretation. The <i>DLI Properties</i> decision is the step toward it.<br />
<br />
Although in this particular case, the court upheld judgment for the landlord, they did so based on the fact that the landlord was a new owner in its own right, not a subsequent owner stepping into a preexisting lease relationship. The win for this landlord was based on an unusual fact that a new lease was executed between the parties: «In this case, after plaintiff purchased the subject property, it did not assume the existing lease and its terms and conditions. Rather, it’s management company, Strategic, executed a new and separate lease with defendant.» <i>Id</i>., 2018 WL 6192245, at *4. If not for this twist, the landlord would have been barred from seeking eviction, because «The undisputed evidence presented at trial established plaintiff’s noncompliance with disclosure requirements.»<br />
<b><br /></b>
<b>How it may play out in a rent-controlled municipality with its own provisions for disclosures</b>.<br />
<br />
In San Francisco, new owners are required to make disclosures to existing tenants within 30 days, (S.F. Admin. Code § <a href="https://sfrb.org/section-379-evictions">37.9(k)(2)</a>) and, in the case of a sale, the selling owners are also required to do the same, although without a stated time limit (S.F. Admin. Code § 37.9(k)(1)). Similarly, within 15 days following foreclosure, "the person or entity that takes title" must also disclose their identity and contact information (S.F. Admin. Code § <a href="https://sfrb.org/sec-379d-foreclosure-evictions">37.9D(e)(i)</a>). This local ordinance also requires compliance with CC § 1962 (S.F. Admin. Code § 37.9D(e)(iii)).<br />
<br />
Provided that the new owner (1) complies with the applicable Rules (comes to mind the language of <a href="https://sfrb.org/part-12-legal-actions-under-ordinance-section-379e">Rule 12.20</a>), (2) avoids a pitfall of timing with regard to the changed/new rules (see, Civ. Code § <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=827.">827</a>, and the nonpublished decision of <i><a href="https://scholar.google.com/scholar_case?case=11354979796409401171&q=kardosh&hl=en&as_sdt=4,5">Hayes v Kardosh</a></i>, as <a href="https://scholar.google.com/scholar_case?case=11389750835853130056&q=kardosh&hl=en&as_sdt=4,5">amended</a>), (3) identifies him-/her-/itself efficiently in the new lease, and (4) catches up on required disclosures, a new owner may still get the judgement under the reasoning of <i>DLI Properties </i>(I don't say here "under the holding," since the decision is not published), at least in the case of a foreclosed property, because Section 37.9D(e)(iii) implies that a purchaser of a foreclosed property may cure noncompliance before endeavoring to recover possession.<br />
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With regard to the missed disclosures in a regular sale, the following solutions seem to be viable, if there is an issue of unpaid rent: either to proceed with the notice and the consequent unlawful detainer for a lesser amount (excluding the rent accrued during the non-compliance period), or to take a route with a regular civil action for damages to recover that portion of unpaid rent, or do both.<br />
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_____________________<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
<br />
If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br />
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<br />
<br />
<br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-43168720722655803692018-10-09T11:43:00.001-07:002018-10-10T08:57:00.694-07:00Book update - ver. 2.8<div dir="ltr" style="text-align: left;" trbidi="on">
I had a chance to update the book to include latest changes across the topics (and as usual, weeding out any typos I could find). There is also a brand-new chapter added - eviction notices under 37.9(a)(9), for the sale following a condo-conversion.<br />
<br />
The links to both the paper and e-book versions remain the same, just check on the version No. before downloading, it shall show «2.8»<br />
<br />
If you happened to purchase versions 2.6 or 2.7 this year, let me know, I will be glad to supply you with the paper copy of 2.8, so you have this year's updates and the additional chapter.<br />
<br />
Here are the links to the updated <a href="https://www.amazon.com/dp/B07926ZV7R" target="_blank">e-book</a> and <a href="https://www.amazon.com/Eviction-Notice-San-Francisco-Fault/dp/0996274464/ref=tmm_pap_swatch_0?_encoding=UTF8&qid=1539186900&sr=" target="_blank">paper</a> versions.</div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-89683107832823946802018-09-05T22:15:00.002-07:002018-09-05T22:15:35.842-07:00New legislation signed today: timing on eviction notices and responding to UD summons and deposition notices<div dir="ltr" style="text-align: left;" trbidi="on">
Among 25 bills signed <a href="https://www.gov.ca.gov/2018/09/05/governor-brown-signs-legislation-15/" target="_blank">today</a>, one drew my attention: extending time to respond to eviction notices and to unlawful detainer summons (<a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201720180AB2343" target="_blank">AB 2343</a>).<br />
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<a name='more'></a>Far from being as drastic as the <a href="https://lao.ca.gov/BallotAnalysis/Proposition?number=10&year=2018" target="_blank">Proposition 10</a> going to the ballots this November, the AB 2343 bill signed today give some new food for thought (or some pain in the neck, depending on what side you are on).<br />
The announced purpose of excluding weekend timing from the total amount of days counted toward responding to a 3-day notice and the 5-day summons is not a problem. An all adage comes to mind that an "[u]nlawful detainer is a summary proceeding" [<i><a href="https://scholar.google.com/scholar_case?case=3997231205661916324" target="_blank">Culver Center Partners East #1, L.P. v. Baja Fresh Westlake Village, Inc</a></i>. (2010) 185 Cal.App.4th 744, 749], but the landlord's right to speeding up the process was not treated as absolute long before: "public policies furthered by protecting tenant from eviction outweighed state's interest in insuring that unlawful detainer proceedings are truly summary." <i><a href="https://scholar.google.com/scholar_case?case=13526138111539050268" target="_blank">E. S. Bills, Inc. v. Tzucanow</a></i> (1985) 38 Cal.3d 824.<br />
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Here is the quirky part: the changes are only inserted in subsections (2) and (3) of the statute. This leaves untouched the 3-day notice to quit under CCP § 1161(4), and I don't know why. The obvious explanation would be that the notice under this subsection is not stated in the alternative (<i>i</i>.<i>e</i>., it is a notice to quit, not a notice to cure or quit), but if the purpose of the amendment was to give tenants more time to deal with the notice of eviction, wouldn't it be logical to give them same time length to vacate under subsection (4) and thus avoid eviction?<br />
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A similar exemption of weekends and holidays from the time to respond to summons, also introduced by the same bill, does not appear to have any quirks, at least yet. Wait until someone will argue it affects timing for a motion to quash, and then we'll see.<br />
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It becomes effective on September 1, 2019.<br />
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_____________________<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
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If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-66642981720428186062018-06-22T19:12:00.001-07:002018-09-22T09:15:12.660-07:00How Preemptive Is the Ellis Act?<div dir="ltr" style="text-align: left;" trbidi="on">
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On June 20, 2018, California Supreme Court denied review of <i><a href="https://scholar.google.com/scholar_case?case=739655704412009343" target="_blank">Small Property Owners of San Francisco Institute v. City & County of San Francisco</a> </i>(2018) 22 Cal.App.5th 77, thus affirming its holding, striking a 10-year ban on alterations of non-conforming units following the Ellis Act evictions. The decision was reached on the preemption argument of the Ellis Act (Cal. Gov. Code § <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=GOV&sectionNum=7060" target="_blank">7060</a> <i>et seq</i>.). How often it is a winning argument, and how universally its preemption is applied? Let us take a look at a few recent decisions.<br />
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<a name='more'></a><i>SPOSFI v. CCSF, Id.</i>, stricken down the 5-10 year waiting period ordinance on renovations of units following non-fault evictions (S.F. Planning Code, Section 181), and did it on the argument that the scope of the non-fault evictions included evictions under the Ellis Act, thus interfering on municipal level with the Act's preemptive nature of occupying the field statewide. Similarly in 2016, the San Francisco Apartment Association won in striking down S.F. Planning Code, Section 317(e)(4), which was proposing a 10-year ban on mergers after Ellis Act evictions. <i><a href="https://www.leagle.com/decision/incaco20160919003" target="_blank">SFAA v. CCSF</a></i> (2016) 3 Cal.App.5th 463. So far, things seemed to be in sync. These must be "substantive" interferences with the Ellis Act, because "procedural" interferences are clearly allowed. See, <i><a href="https://scholar.google.com/scholar_case?case=3510101819284120488" target="_blank">Pieri v. CCSF</a> </i>(2006) 137 Cal.App.4th 886; Gov. Code 7060.1. If you have read and compared these decisions, I think you would agree that drawing a line between which ban is procedural and which substantive is not a simple task.<br />
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How about a similar ban delaying condominium conversions for 10 years after a buyout? This one survives the challenge. In <i><a href="https://scholar.google.com/scholar_case?case=4342442282039183004" target="_blank">SFAA v. CCSF</a></i> (9th Cir. 2018) 881 F.3d 1169, a similar 10-year ban on prohibiting condo-conversions following buyouts was upheld as constitutional. This decision was concerned with the condo-conversions and not the Ellis Act. It might be also attributed to Gov. Code, Section 7060.7(a), explaining that the legislative intent behind the Ellis Act was not to interfere with local governmental authority over regulation of condo conversions (as explained in <i><a href="https://scholar.google.com/scholar_case?case=11903751297121396880" target="_blank">Reidy v. CCSF</a> </i>(2004) 123 Cal.App.4th 580, 591, as modified on denial of reh'g (Nov. 23, 2004)), but the very next subsections, 7060.7(b) and (c), would have applied to the decisions on units’ mergers and alterations, and yet they did not. See and compare, Gov. Code §§ 7060.1(b) & (c), 7060.2, and 7060.4, for the same reasoning. Section 7060.2 anticipates 10 years as an acceptable period of time for accommodations.<br />
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What if the owners attempted first to condo-convert (thus making certain promises and concessions to the city in the process of applying for conversion), but then change their mind and terminate tenancies under the Ellis Act? In this case Ellis Act was held as not preempting prior arrangements. <i><a href="https://scholar.google.com/scholar_case?case=14505880895022380430" target="_blank">Lincoln Place Tenants Ass'n v. City of Los Angeles</a></i> (2007) 155 Cal.App.4th 425, 451, as modified on denial of reh'g (Oct. 10, 2007). What if the condo conversion was already achieved? Same result, no Ellis rights to withdraw. <i><a href="https://scholar.google.com/scholar_case?case=8732105629844005580" target="_blank">Valnes v. Santa Monica Rent Control Bd</a></i>. (1990) 221 Cal.App.3d 1116. The only exception is if the owners made an agreement between themselves, that will work. <i><a href="https://scholar.google.com/scholar_case?case=12462044291209629136" target="_blank">Daro v. Super. Ct</a>.</i> (2007) 151 Cal.App.4th 1079, 1100, as modified on denial of reh'g (July 3, 2007) [owners agreeing between themselves to condo-convert after proceeding with the Ellis Act, does not affect their right to Ellis Act].<br />
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As a final note on what could affect the otherwise universal right to Ellis -- recently, an allegation of a change in the terms of the lease agreement, has been successfully <a href="https://m.sfgate.com/bayarea/article/Noe-Valley-woman-1st-to-beat-Ellis-Act-eviction-12349346.php" target="_blank">applied</a> in a 2017 trial. It would be interesting to see this case analyzed on an appeal, but I am unaware if the appeal was filed (it could be a limited jurisdiction case, and so it is masked from the public view).<br />
<br />[update Sept. 21, 2018]: what did get analyzed on an appeal was 2016 eviction case by Martin Coyne, who had already made <a href="http://ponfo.blogspot.com/2015/10/ellis-act-victory-for-sposfi-ordinance.html" target="_blank">history</a> in the development of the San Francisco eviction laws pertaining to Ellis Act, striking an ordinance, which would otherwise require large payouts to vacating tenants. This time Mr. Coyne was handed the short end of a stick, in the decision <i><a href="https://law.justia.com/cases/california/court-of-appeal/2018/a149660.html" target="_blank">Coyne v. De Leo</a></i> (2018) 237 Cal.Rptr.3d 359, as modified on denial of reh'g (Aug. 28, 2018), reversing the judgment and holding that extrinsic evidence can be introduced to challenge landlord's intent in terminating tenancies under the Ellis Act.<br /><br /><br /><br /><br /><br /><br /><br />
______________________<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
<br />
If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-30530806365320102012018-05-25T12:28:00.001-07:002018-05-25T12:47:59.871-07:00Constitutionality of the requirement for a life-time lease as condition for condo conversion was upheld<div dir="ltr" style="text-align: left;" trbidi="on">
In July of last year, TIC co-owners of a multi-unit building in San Francisco <a href="http://digital.olivesoftware.com/Olive/ODN/SanFranciscoChronicle/shared/ShowArticle.aspx?doc=HSFC%2F2017%2F07%2F18&entity=Ar02103&sk=68A413A8&mode=text" target="_blank">sued</a> against the ordinance provisions requiring a lifetime lease to be offered to those tenants who reside in the units subjected to a condominium conversion. Case 3:17-cv-03638, <i><a href="https://www.pacermonitor.com/public/case/21799660/Pakdel_et_al_v_City_and_County_of_San_Francisco_et_al" target="_blank">Pakdel et al v. City and County of San Francisco</a></i> (2017 WL 6403074), filed before the Northern District of California federal district court.<br />
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The court granted City's motion to dismiss (Docket # 25, 11/20/2017). Of interest to other practitioners, in its relevant portion (page 10), the court found the requirement of offering a lifetime lease constitutional, as one passing the rational basis review standard. The requirement itself is found in <a href="http://library.amlegal.com/nxt/gateway.dll/California/subdivision/division1subdivisioncode/article9conversions?f=templates$fn=default.htm$3.0$vid=amlegal:sanfrancisco_ca$anc=JD_1396.4" target="_blank">Sec. 1396.4(g)</a> of the San Francisco Subdivision Code.<br />
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The case is currently pending appeal, opening brief filed on April 28, 2018. Appeals' Case Number 17-17504.<br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-49460958162139439582018-04-24T23:02:00.001-07:002018-04-24T23:06:13.130-07:00Another attack on Rent Ordinance Registration Requirement--This Time In San Jose<div dir="ltr" style="text-align: left;" trbidi="on">
I must start with repeating an old joke. As a train arrived to the station, a passenger asked a conductor: "will this train take me to the Main Street?" "No," replied the conductor, "of course not, we don't even have the tracks laid in that direction." Another eager passenger standing behind the first one then asks, "would this train take <i>me</i> there?"<br />
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This anecdote came up when I've read the <a href="https://www.mercurynews.com/2018/04/19/landlords-sue-san-jose-over-rent-registry-policy/">news</a> yesterday, announcing that the San Jose landlords seek court's help in preventing the San Jose's rent ordinance <a href="http://www.sanjoseca.gov/index.aspx?NID=1355">new requirement</a> for landlords to register with the board and provide specific information on each rent-controlled tenancy. We wish these landlords luck, wholeheartedly, and check on where all prior trains took landlords on this argument.</div>
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The "registration of rents" is a recognized concept, reflected in our statutes, see, Cal. Civ. Code, Sections 1947.7, 1947.8, 1947.10, <a href="https://codes.findlaw.com/ca/civil-code/civ-sect-1947-11.html">1947.11</a>. It is another question, what that "registration" may entail.</div>
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On municipal level, the registration is required by many Rent Ordinances in California, most recently I have encountered it in <a href="https://www.ci.richmond.ca.us/3373/Landlords">Richmond</a>. It is enforced in Los Angeles, as the decision in <i><a href="https://www.leagle.com/decision/incaco20140417039">Lyles v. Sangadeo-Patel</a></i> (2014) 225 Cal.App.4th 759, 763, informs. San Jose's registration <a href="https://www.sanjoseca.gov/DocumentCenter/View/11999">form</a> for landlords is similar to the Richmond's one.</div>
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I would however start with Berkeley, where the rent board amasses perhaps the most detailed database of this kind. When I went to check for my clients a rental history of a given unit last year, the folder had all possible information going back to 70s, still with original notices, typed and handwritten, with envelopes and all. If you think Berkeley landlords bellied up on this requirement without fight, read <i><a href="https://scocal.stanford.edu/opinion/fisher-v-city-berkeley-30723">Fisher v. City of Berkeley</a> </i>(1984) 37 Cal.3d 644, aff'd sub nom. <i>Fisher v. City of Berkeley, Cal</i>. (1986) 475 U.S. 260. It went up all the way to Supreme Court. The result: the registration requirement was held as one "reasonably related to achieving the legitimate purposes of the ordinance." <i>Id</i>. at 702. See also, <i>Searle v. City of Berkeley Rent Stabilization Bd</i>. (1988) 197 Cal.App.3d 1251.</div>
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In San Francisco, interestingly enough, S.F. Board's registration requirements were minimal (see, <i>e</i>.<i>g</i>., Sec. 37.9(c)), only lately enlarging to include the buyout database and (since 1-1-18) an extensive self-reporting set of requirements and declarations for owner- and relative-move-ins. A recent updated of the Board's database now masks tenants (and, surprisingly, tenants' attorneys) information from the search.</div>
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Also, the S.F. Rent Board destroys most of the records after a certain time (I believe it is 6 years, but can be shorter). What is recorded in the S.F. computer database remains saved, but the physical records are gone without trace. As a practitioner, each time I hit the dead-end and can't see that record, it is a disappointment, and that disappointment is more often to happen to me when I represent landlords, rather than tenants. This is because a tenant usually benefits from lesser record, while a landlord usually is in a better position when evidence is preserved.</div>
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Despite my personal views, the 9th Circuit just this February had ruled on a similar argument against the S. F. Buyout ordinance, requiring landlords to make certain disclosures to tenants and register buyout information with the board, where the database redacts tenant's information, but keeps landlords' information publicly available. (S.F. Admin. Code, <a href="http://sfrb.org/379e-tenant-buyout-agreements">Sec. 37.9E</a>). The case is <i><a href="https://caselaw.findlaw.com/us-9th-circuit/1888715.html">San Francisco Apartment Association v. City and County of San Francisco</a></i> (9th Cir. 2018) 881 F.3d 1169, and it found that recording landlord's information is "rationally related to the City's legitimate interest in reducing information asymmetry between tenants and landlords and improving the inferior bargaining position of tenants in buyout negotiations while protecting tenant privacy," <i>Id</i>. at 1180. Because, you know, "[l]andlords are also not a protected class." <i>Id</i>. at 1179.</div>
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Back to the San Jose case coming up in the news, the case No. is 5:18-cv-02024-LHK, it is titled <i><a href="https://www.courtlistener.com/docket/6354365/hotop-v-city-of-san-jose/">Hotop, et al. v. City of San Jose</a></i>, filed on April 3, 2018. The case is in its initial stage, the summons just got issued. I downloaded the complaint and its copy is available <a href="https://drive.google.com/file/d/1Uiloh83OkHTotbPB5XhrpNLbuP9qVGVl/view?usp=sharing">here</a>. The list of the complained-about disclosures is stated in Paragraph 12 (page 5) of the complaint. The way the current set of the claims is stated, I predict it would end against the plaintiffs, because it is currently fashioned for protection of speech and privacy of the landlords, which, if any of the above-cited decisions can be used as a hint, courts are not excited to protect.</div>
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However, if the action could be re-fashioned on an amendment to address tenants' privacy rights (already stated in paragraphs 18-19), then there's hope, even if so little. The hope is there because tenants, unlike landlords, are members protected class, and the fresh decision in <i>SFAA v. CCSF,</i> <i>supra</i>, would stand to support protection of their privacy. The hope is little only because the landlords's association would have an issue of standing to overcome: advocating for third-party privacy rights is not axiomatic, and the landlords are not always perceived as protectors of tenants' rights. 9th Circuit allowed disclosure of personal information when the purpose of law enforcement outweighs the personal privacy concern. <i><a href="https://openjurist.org/943/f2d/972/wiener-v-federal-bureau-of-investigation">Wiener v. F.B.I</a></i>. (9th Cir. 1991) 943 F.2d 972, 984.</div>
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The case is not entirely without an argument, however, for the Supreme Court had "relaxed" its "self-imposed rule" allowing plaintiffs in some circumstances to argue for third-party rights. <i><a href="https://supreme.justia.com/cases/federal/us/405/438/case.html">Eisenstadt v. Baird</a> </i>(1972) 405 U.S. 438, 444. The examples cited in <i>Eisenstadt</i> include a real property case arriving from a California decision, <i><a href="https://supreme.justia.com/cases/federal/us/346/249/">Barrows v. Jackson</a></i> (1953) 346 U.S. 249. There, for asserting third-party vendees' rights, the vendor was found having sufficient standing, because there was "a direct, pocketbook injury to [the vendor]." <i>Id</i>. at 256. A similar connection might be made in the <i>Hotop </i>case, if (1) plaintiff landlords can show sufficient pocketbook injury related to disclosing tenants' information, and (2) that pocketbook interest could be shown in overcoming the interest in enforcing the ordinance (good luck on that one).</div>
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The standing to fight for privacy rights of third parties in California state courts is mostly brought up in connection with media and online services. See discussion in <i><a href="https://www.leagle.com/decision/incaco20171113039">Yelp Inc. v. Superior Court</a></i> (2017) 17 Cal.App.5th 1, 9, review denied (Feb. 14, 2018). The discussed cases, however, included the element of an anonymous speaker, who is presumed in desire to remain anonymous. Here, it is hard to say upfront that tenants desire to remain anonymous, especially if their information is sought for the purposes of enforcing tenants' rights. What I may predict landlords might be electing to do in the future, is to have an opt-out form for tenants to sign, indicating their preference in being disclosed or remaining anonymous. Yet for the already existing information and in absence of the opt-out, a third-party's right to privacy is a tough cause to sue for.</div>
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Within the recent state-court decisions, the right is also hard to win on. See, <i>e.g</i>., <a href="https://www.leagle.com/decision/incaco20170127127"> <i>In re Q.R</i>.</a> (2017) 7 Cal.App.5th 1231, 1237. The courts usually apply a balancing test of privacy interest vs. an purpose in disclosure [<a href="https://www.courtlistener.com/opinion/2277902/in-re-the-clergy-cases-i/"><i>In re Clergy Cases I</i> </a>(2010) 188 Cal.App.4th 1224, 1235], and you may have noticed from the case above that the interest in furtherance of public policy in enforcing rental protections is usually given enough weight to overcome someone's individual privacy concerns. If still in doubt, read <i><a href="https://scholar.google.com/scholar_case?case=16712652902972209280&q=Department+of+Fair+Employment+and+Housing+v.+Superior+Court+(2002)+99+Cal.App.4th+896&hl=en&as_sdt=4,5">Department of Fair Employment and Housing v. Superior Court </a></i>(2002) 99 Cal.App.4th 896, 903, as modified (June 26, 2002), where the tenants' information was found proper to be disclosed: "The Department's interest in prohibiting discrimination in housing outweighs any privacy interest of those applicants for housing with Keller and Mattox who were denied housing, or those who were accepted as renters." <i>Id</i>. at 904. This interest was found overcoming even the right to "autonomy privacy." However, an argument still might be made for the ""autonomy privacy” interest in choosing the persons with whom a person will reside," which worked in <i><a href="https://scholar.google.com/scholar_case?case=9875661261222306559&q=Tom+v.+City+and+County+of+San+Francisco+(2004)+120+Cal.App.4th+674&hl=en&as_sdt=4,5">Tom v. City and County of San Francisco</a></i> (2004) 120 Cal.App.4th 674, 680. Or perhaps, the plaintiffs could bolster their case by analogy with an employer-employee relationship, where the employer is charged with protecting employee's privacy: compare, Cal. Lab. Code § <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=LAB&sectionNum=1198.5">1198.5</a> [own records] with requirements under CCP § <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=1985.6.">1985.6</a> for requesting someone else's records.</div>
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In any event, this San Jose case seems to be facing an Everest of a challenge to even get out from its initial stage. Ironically, the very landlords who petitioned for halting the registry might soon start appreciating its benefit in offering them the record evidence, assisting in rooting out bad actors and helping in assessing a purchase of a rental property.<br />
<br /><br /><br />______________________<br />More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br /><br /><br /><br />If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br /><br /><br /><br /><br /><br /></div>
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-69019054020638602872018-02-14T22:24:00.001-08:002018-05-25T12:09:06.940-07:00The "Educators" Ordinance Is Back<div dir="ltr" style="text-align: left;" trbidi="on">
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Today the court of appeals <a href="http://www.courts.ca.gov/opinions/documents/A149919.PDF">reversed</a> in full its 2016 judgment, which up until today was holding the "<a href="http://ponfo.blogspot.com/2016/05/new-category-of-tenants-in-sf-educators.html">educators</a>" ordinance on hold. There is a hope that the certiorari review will follow, but, as of now, the ugly and self-contradicting piece is coming back on the books. And I mean it literally as well, I'll have to update the book again (only in this case, downgrade it back).<br />
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None of the ordinance's loopholes and inconsistencies were addressed in the decision. Its inexplicable treatment of just one class of potential tenants (the educators) is tangibly mentioned in footnote 4 (why is it always <a href="https://en.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.#Footnote_Four">footnote 4</a>? I've stumbled over that coincidence <a href="http://ponfo.blogspot.com/2016/01/of-what-materials-may-court-take.html">before</a>), that the City have conceded that the ordinance would be "subject to a constitutional challenge," if an ordinance would treat differently another group (restaurant workers were mentioned as an example). How is it different with educators? Two years ago I was contemplating on what target classes were of similar public importance (the example of restaurant workers may not be as universally accepted on the same level of importance as kids' education, <i>i</i>.<i>e</i>. some people opt not to eat out, while almost all kids go to school). But there are groups similarly within the same public policy as the educators:<br />
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<td><i>The targeted group for protection is under-inclusive, it inexplicably excludes other worthy professional groups: policemen, firemen, paramedics, street cleaners, bus drivers, other city workers of all sorts, community spiritual leaders, etc. For any of these groups an absolutely same appeal can be made, identical to the one touted for this proposed law (i.e., a world-class city should have world-class educators). Doesn't a world-class city need world-class roads, clean streets, world-class community services? It needs them just as much. Imagine any group being ousted out, and we are in big trouble.
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No. Instead of addressing the real issues with the ordinance, the appellate decision went its entire length on contemplating, whether the ordinance is substantive or procedural, without forgetting to mention that the line between those two labels is hard to draw and is in fact very illusory. Even if the appellants got entangled in the labels (unlikely, since the court itself admits there is not much difference) the reviewing court could have remembered to use one of the main principles available to it: "[t]here is perhaps no rule of review more firmly established than the principle that a ruling or decision correct in law will not be disturbed on appeal merely because it was given for the wrong reason. If correct upon any theory of law applicable to the case, the judgment will be sustained regardless of the considerations that moved the lower court to its conclusion." <i><a href="https://law.justia.com/cases/california/supreme-court/3d/47/550.html">Belair v. Riverside Cty. Flood Control Dist</a></i>. (1988) 47 Cal.3d 550, 568; <i><a href="https://books.google.com/books?id=_a8aAAAAYAAJ&lpg=PA325&ots=W0B-IKreiz&dq=Davey%20v.%20Southern%20Pacific%20Co.%20(1897)%20116%20Cal.%20325&pg=PA325#v=onepage&q&f=false">Davey v. Southern Pacific Co</a></i>. (1897) 116 Cal. 325, 329.<br />
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As if there were no worthy points to discuss about this ordinance (I had raised some issues <a href="http://ponfo.blogspot.com/2016/02/another-upside-down-amendment-to-rent.html">here</a> and <a href="http://ponfo.blogspot.com/2016/05/new-category-of-tenants-in-sf-educators.html">here</a>, and I am sure I haven't spotted them all). But nope, these apparent problems (I mean, apparent even to me), were not noticed, unless you count a nod to a potential constitutional challenge as being mentioned (and that only as a footnote comment, and only if the target class were restaurant workers, and it made no reflection on the decision anyway).<br />
<br />
So there you have it. Talking about the procedure, my initial fear was that the unfreezing this set of rules from 2016 would run into a conflict with the present Ordinance, it being amended since, especially for the <a href="http://ponfo.blogspot.com/2017/07/owner-move-in-regulation-expanded-and.html">new rules</a> for OMI and RMI, but on the surface I don't see an immediate issue. Perhaps some cross-references within the statutes may suffer, since the indexation moved (<i>e</i>.<i>g</i>., under 37.9(a)(8), 37.9(i), 37.9(j), etc., but let's hope for the best.)<br />
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Wait for the new updated version of the ordinance to come out <a href="http://sfrb.org/ordinance-regulations">here</a>. As of the time of writing this post, the version on the Board's website was still one from 8-27-2017, but I expect it to catch up in a couple of weeks with this new decision, and then we will see if any of the sub-sections bumped into each other. And you know what side-effect it bears with it, don't you? It means you can't reliably use the current version until the new one is out, in <i>any</i> of eviction notices under the rent control, no matter what the ground. You've been warned!<br />
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[Updates: Cal. Sup. Ct. denied review on April 25, 2018; Rent Ordinance reinstated back the "educators" ordinance's language on May 15, 2018, see the press release <a href="https://sfrb.org/article/california-supreme-court-denies-review-court-appeals-decision-upholding-ordinance-amendment">here</a>].<br />
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More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
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If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-84688955598156162432018-01-16T11:18:00.002-08:002018-02-16T17:47:12.929-08:00New 2018 edition of the "Eviction Notice In SF" is out<div dir="ltr" style="text-align: left;" trbidi="on">
I could write my own introduction to this new edition, but I like this one instead:<br />
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"Having taken more than ordinary Pains in collecting the Materials which compose the following History, we could not be satisfied with our selves, if any Thing were wanting to it, which might render it entirely satisfactory to the Publick: It is for this Reason we have subjoined to the Work, a short Abstract of the Law now in Force [], and made Choice of some particular Cases, (the most curious we could meet with) which have been heretofore tried, by which it will appear what Actions have, and what have not been adjudged []." <a href="https://books.google.com/books?id=oipEAQAAMAAJ" style="font-style: italic;">A General History of the Pyrates</a>, 4th Ed., 1726.<br />
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<a name='more'></a>The introduction I couldn't say better myself, and all I did is to take out the piracy references!<br />
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My new 2.6<b>*</b> edition of the book, however unfortunate, is not about pirates, and is a bit newer on some of its material, including the latest changes in the owner/relative move-in regulations, which came into full force on January 1. Other chapters were tuned-up in accordance with the decisions issued in 2017,<b>**</b> and the usual process of cleaning up and weeding out the typos was also performed.<br />
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Paper version <a href="https://www.amazon.com/dp/0996274464">link</a>.<br />
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E-book version <a href="https://www.amazon.com/dp/B07926ZV7R">link</a>.<br />
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I hope you'll enjoy it! Don't forget to let me know, I am interested in feedback, as always.<br />
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<b>*</b> Just within one months since version 2.6 was out, the <a href="http://ponfo.blogspot.com/2018/02/the-educators-ordinance-is-back.html">decision came out reversing the ban</a> on "educators" ... unexpected to say the least! But as a result, version <b>2.7</b> is here, with all edits accumulated over that one month, plus a redo to insert the "educators" back. Complete updated inserts for both the paper and e-book were approved by Amazon on 02-16 and expected to become available on Monday. Same links above will work (but wait until 02-19 so you will get the latest version)<br />
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** Now including what came out in 2018, mainly the infamous "educators" reversal addressed above.<br />
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______________________<br />
<br />
<br />
<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br />
<br />
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<br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-12108804478678929312018-01-01T14:04:00.004-08:002018-02-15T10:38:04.439-08:00Between the rock and the hard place—a peculiar position of a master tenant<div dir="ltr" style="text-align: left;" trbidi="on">
When we talk about a landlord-tenant relationship, we often imply the simplest pairing: that there is a landlord and there is that landlord's tenant, a straightforward exchange of promises and obligations going both ways (that those promises and obligations can go a wrong way or even entirely sideways is covered elsewhere in this blog). But what if a tenant has <i>own</i> tenants, who sublease a portion of that tenant's whole tenancy? In San Francisco, it puts that main or "master" tenant in a position coupled with unique and nondelegable obligations.<br />
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A landlord-tenant relationship stems from the feudal principals of masters lending land to their vassals. (See <i>e</i>.<i>g</i>., Blackstone, Book III, "Private Wrongs," <a href="https://lonang.com/library/reference/blackstone-commentaries-law-england/bla-315/" target="_blank">Ch. 15</a>). This is the same principal flowing from anyone with a higher or fuller interest in the land to the one with a lesser claim to the same land. Which makes a tenant, when (s)he turns around and sublets portions of leased property to someone else, a "master," a landlord to those who rent from her or him. <i><a href="http://Glenn R. Sewell Sheet Metal, Inc. v. Loverde (1969) 70 Cal 2d 666" target="_blank">Glenn R. Sewell Sheet Metal, Inc. v. Loverde</a></i> (1969) 70 Cal.2d 666. This does not change the relationship between the landlord and the tenant, but creates a new and separate relationship between the tenant (and not the owner) and the tenant's tenant (the subtenant). <i><a href="https://law.justia.com/cases/california/court-of-appeal/3d/134/985.html" target="_blank">Boston Properties v. Pirelli Tire Corp</a></i>. (1982) 134 Cal.App.3d 985, 992. In San Francisco, a recent case upheld the principle from the Rent Ordinance that enforcement of terms of subleasing is with the master tenant and his subtenant, not with the master tenant's landlord. <i><a href="https://www.leagle.com/decision/incaco20151201014" target="_blank">Foster v. Britton</a></i> (2015) 242 Cal.App.4th 920, 937.<br />
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So far, clear and easy. In the dense urban environments, like San Francisco, subletting is a very common, <a href="http://kalw.org/post/reality-subletting-san-francisco#stream/0" target="_blank">if not a prevailing</a>, practice of renting residencies. What wrong could happen? Seems like nothing can, but check with <a href="https://en.wikiquote.org/wiki/Murphy%27s_law" target="_blank">Murphy</a> first, and let us contemplate on some hypotheticals.<br />
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<b>A Preamble—Have Insurance.</b></div>
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A strong suggestion to all master tenants out there—stay insured at all times. Rephrasing <a href="http://www.murphyslaws.net/edition.htm" target="_blank">the Banker's Axiom</a>, another Murphy principal (Mr. Murphy is highly relevant to all topics about leasing), we can say that, as long as you have an insurance policy, you more likely than not will end up never needing it. (But don't do it the other way, needing it when you don't have it). Being insured may help with the situations noted below, and will may even be more of help with ones not mentioned here or anticipated at all.</div>
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<b>Issue 1 - Split of Responsibilities</b>.</div>
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It sure feels sweet for a master tenant to tell "back off" to the landlord, when that landlord tries to intermeddle with the master's contract with a subtenant. But that coin has a nasty other side: the split of responsibilities. A master tenant is still responsible to the landlord for the <i>entire </i>list of obligations, promises, covenants, conditions, and whatever else spelled out in the landlord's lease or required of the same tenant by law. Master tenants often pass some (or all) of those responsibilities to their subtenants, but they do remain responsible to the landlord, at a very least as "a surety for performance" of the original lease's conditions. <i><a href="https://scholar.google.com/scholar_case?case=3605851291816346543&hl=en&as_sdt=6&as_vis=1&oi=scholarr" target="_blank">Carma Developers (Cal.), Inc. v. Marathon Development California, Inc.</a> </i>(1992) 2 Cal.4th 342, 364.</div>
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How it comes to sting a master tenant in real life? <u>First</u>, by mere difference in the contracts, one the master tenant has with the landlord, and another same master tenant would have with a subtenant. In my limited experience, and I only observed a couple of hundreds of those, the sublease is usually executed on a proverbial back of a napkin with very few terms spelled out, with even those spelled carrying little to no enforceability as being stated wrong. And, of course, the terms in the sublease and the master-lease agreements rarely match and more often contradict each other. Landlords' contracts tend to be made on specialized forms and be more accurate, although not always, but the danger lays mainly in the variations between the two documents, leaving the master tenant responsible on more points to the landlord than the subtenant responsible to the master.</div>
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<u>Second</u>, by virtue of some of responsibilities of a master tenant simply nondelegable to a subtenant. Either as written in the main lease (most often examples include obligations on paying the rent and holding a security deposit), or as applied by law, such as the nondelegable duty to provide safe premises (<i>e</i>.<i>g.</i>, CACIs <a href="https://www.justia.com/trials-litigation/docs/caci/1000/1006.html" target="_blank">1006</a>, <a href="https://www.justia.com/trials-litigation/docs/caci/3700/3713.html" target="_blank">3713</a>). A master tenant may remain liable even when no longer an occupant of the place (<i>e</i>.<i>g.</i>, liability for assignment, <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1995.330.">CCP § 1995.330</a>(a)).</div>
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<b>Issue 2 - One-Way Application of the Costa Hawkins Act</b>.</div>
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Master tenants who rent a unit in a multiunit rent-controlled building may skip this section. For them, their landlord's ability to raise the master rent is as limited as their own ability to raise the rent to subtenants, under pretty much identical conditions. All other master tenants, who are not lucky to be residing in the situation described above, should have some mint tea to relax the nerves before reading further. And have I mentioned, to have an insurance in place?</div>
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<a href="https://en.wikipedia.org/wiki/Costa-Hawkins_Rental_Housing_Act" target="_blank">The Costa Hawkins Rental Act</a> (Cal. Civ. Code <a href="https://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?lawCode=CIV&division=3.&title=5.&part=4.&chapter=2.7.&article" target="_blank">1954.50 </a><i>et seq</i>.) comes to bite master tenants in their subleasing sweet spot from an entirely unexpected angle, that is from the application of the <a href="http://sfrb.org/rent-ordinance" target="_blank">San Francisco Rent Ordinance</a>, an ordinance master tenants (them still being tenants) usually regard as their protector. (Other municipalities have very similar implications in their ordinances, so this danger is not confined to bother just the master tenants in the City By The Bay). Of course by now, since you diligently read this article from the top, you already know that a master tenant is more of a landlord than a tenant, but not everyone gets deep into those devilish details. The Rent Ordinance has little to offer to protect a master tenant from a subtenant's claim.</div>
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In short, the problem is this: if the whole rental unit is exempt from the rent control under the Costa Hawkins, the landlord may raise rent on the master tenant without limitations imposed by the Rent Board (which promulgates maximum rent increase rates for each year, usually around 1-2%). Outside of the rent control, a landlord can, if acts in good faith, raise the rent by bringing it up to the market level rate, means the rent can double or triple, if the market so dictates. What a master tenant expects then to do? If you think the answer is to raise accordingly the rates for the subtenants, the answer is, not so fast. First thing to do is to determine, whether the subtenancy is also exempt from the rent-control, which more often isn't.</div>
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Keep on drinking that mint tea, you may still need it, and consider tat the master tenants may find themselves exposed to a virtually unlimited rent increase in several scenarios <b>(i) </b>the unit is a single rental unit on a parcel (a condominium, a single-family house, or a multi-unit building with just one rental unit in it); or <b>(ii) </b>the master tenant is a subtenant, exempt from rent-control protections when all original tenants had left, even though the rental unit is an otherwise rent-controllable apartment (see, <a href="http://sfrb.org/index.aspx?page=1252" target="_blank">Sec. 37.3</a>).</div>
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Observe the rule covering exclusively the master tenants, <a href="http://sfrb.org/part-6-rent-increase-justifications" target="_blank">Rule 6.15C</a>. Even when the eviction-control limitations won't apply (a master co-resides with a single subtenant), that master tenant has to make a written disclosure of the exemption prior to subtenant's moving in (R. 6.15C(1)), while an owner-landlord does not have disclose it. And with regard to establishing the <i>initial</i> rent rate for a new subtenant, the Rule covers how it can be established and in what proportion to the total amount paid to the owner (R. 6.15C(3)). However, any subsequent adjustments may require a petition to the Board, and a subtenant also gains a right to petition against an unlawful rent increase. (<i>Id</i>.)<br />
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In short, it is possible for a master tenant, who does not have the rent-control protection, to be obligated for a market-level rent rate, while the subtenants who pay rent to that master may remain protected and need not to agree to an increase beyond Rent Board's <a href="http://sfrb.org/sites/default/files/Document/Form/571%20Allowable%20Annual%20Increases%2018-19.pdf" target="_blank">established limits</a>.<br />
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<b>Issue 3 - Unsplittable Obligations, Security Deposit.</b></div>
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An agreement with the owner is often interpreted (CC §§ <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1431.&lawCode=CIV">1431</a>, <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1431.2.&lawCode=CIV">1431.2</a>), if not expressly written, as a contract holding original tenants jointly and severally liable for violation of the tenancy terms. In practice, when one or more of the original tenants leave, it often translates to vastly different expectations of what's owed, by whom, and to whom.</div>
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Among all, the most popular item of contention is handling the security deposit. From the landlord's standpoint, a security deposit is made when tenants move in, and its return is to be handled in exchange for recovering possession of the unit, <i>i</i>.<i>e</i>. all tenants vacate. See that CC § <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1950.5">1950.5(f)</a> speaks in terms of terminating the tenancy, and 1950.5(g) counts the timing from vacating the premises.</div>
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This position does not always seem obvious to the tenants. A moving-out tenant may want to receive his/her proportional share of what was contributed to the total deposit. The remaining-in-residency tenants may wish to avoid paying that portion out of pocket, and rather seek a replacement candidate first.</div>
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This situation along may create an unpleasant exchange of demands and even interfere with parties' plans on moving-in or out, because each party's planned financial ability becomes affected. Add to this scenario a possibility that a moving-out party is not one of the original occupants, but a subtenant, and the position of a corresponding master-tenant becomes even riskier, because the duty to return subtenant's deposit is time-specific (generally, 21 days, under CC § 1950.5(g)), while obtaining a new and approved replacement may take longer: the owner's approval alone may take 14 days, depending on the lease terms and conduct of parties, see the <a href="http://sfrb.org/part-6-rent-increase-justifications">Rules 6.15A, B, D, and E</a>.</div>
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<b>Issue 4 - Being Responsible To An Eviction Lawsuit.</b></div>
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An owner-landlord does not need to serve subtenants with the papers to maintain an eviction lawsuit (called in California an "unlawful detainer") against the master tenant. <i><a href="https://scholar.google.com/scholar_case?case=12175819497976879063&q=Chinese+Hosp.+Foundation+Fund+v.+Patterson+(1969)+1+Cal.+App.+3d+627&hl=en&as_sdt=1000006&as_vis=1" target="_blank">Chinese Hosp. Foundation Fund v. Patterson </a></i>(1969) 1 Cal. App. 3d 627, 632, citing <i><a href="https://scholar.google.com/scholar_case?case=12009578319481543264&q=Chinese+Hosp.+Foundation+Fund+v.+Patterson+(1969)+1+Cal.+App.+3d+627&hl=en&as_sdt=1000006&as_vis=1" target="_blank">Markham v. Fralick</a></i> (1934) 2 Cal.2d 221, 223. For an underlying eviction notice, the rule differentiates based on the kind of the notice, with the curable notices (<i>e</i>.<i>g</i>., "to pay or quit," or "to cure or quit") required to be served on subtenants, while incurable notices ("to quit") and termination notices (under CC §§ <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1946" target="_blank">1946</a>, <a href="https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=1946.1">1946.1</a>) need not to be served on subtenants. <i><a href="https://scholar.google.com/scholar_case?case=17183298358164260904&q=Four+Seas+Investment+Corp.+v.+International+Hotel+tenants+association&hl=en&as_sdt=4,5">Four Seas Investment Corp. v. International Hotel Tenants' Ass'n</a> </i>(1978) 81 Cal.App.3d 604, 611-612; <i><a href="https://scholar.google.com/scholar_case?case=16660628810472572493&q=Briggs+v.+Electronic+Memories+%26+Magnetics+Corp.+(1975)+53+Cal.App.3d+900&hl=en&as_sdt=4,5">Briggs v. Electronic Memories & Magnetics Corp</a></i>. (1975) 53 Cal.App.3d 900, 904; <i><a href="https://scholar.google.com/scholar_case?case=4878293098020279386&q=Kwok+v.+Bergren+(1982)+130+Cal.App.3d+596&hl=en&as_sdt=4,5">Kwok v. Bergren</a></i> (1982) 130 Cal.App.3d 596, 600.</div>
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For its own practical needs, it is useful for owners to include all known occupants both in the eviction notice and the lawsuit, but it is not mandatory. Leading to yet another risk of liability for master tenants: to respond to the owner's lawsuit while having no counter-measure to pass the inconvenience on to subtenants. This becomes sensitive for all scenarios covered above—a master tenant is often left "holding a bag." I hope this brief recital of some of the caveats and hidden issues of being a master tenant will help to have that bag not entirely empty.</div>
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______________________<br />
<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br />
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<br /></div>
</div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-48959762581309381302017-09-28T09:06:00.000-07:002018-02-15T10:37:06.639-08:00Bending Laws of Physics - A New Opportunity For Lawyers in Richmond<div dir="ltr" style="text-align: left;" trbidi="on">
Lawyers are so generally expected to be masters at bending laws, there are folklore quotes about it in pretty much every language. In <a href="http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/twlr12&div=16&id=&page=" target="_blank">Russian</a>, the saying goes as "The Law is like an axle--it goes where you turn it." In other words, <i><a href="http://en.bab.la/dictionary/italian-english/fatta-la-legge-trovato-l-inganno" target="_blank">fatta la legge trovato l'inganno</a></i>. But the newly enacted Rent Ordinance in the City of Richmond, California, raised the expectations of legal process to a new, previously unattended height--to bend the laws of physics. This must be the highest bar a practitioner will ever meet.<br />
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This is not say that time-bending is <a href="http://www.hawking.org.uk/space-and-time-warps.html" target="_blank">impossible</a>. Other non-laywering professions post victorious news about conquering what was previously unthinkable, almost daily. Just yesterday, a gravitational wave from 2 billion years was <a href="https://www.theverge.com/2017/9/27/16368860/gravitational-waves-ligo-virgo-three-observatories-fourth-detection" target="_blank">detected</a>, and the BBC today reported on a first-ever chemical surgery on an embryo, <a href="http://www.bbc.com/news/av/science-environment-41427642/embryo-precise-chemical-surgery-performed" target="_blank">correcting its DNA</a>. And now, thanks to the legislators in Richmond, we can boast of something too.<br />
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<a name='more'></a>Consider the recently enacted Richmond Rent Ordinance (<a href="http://www.ci.richmond.ca.us/3364/Richmond-Rent-Program" target="_blank">link</a>). It requires that all eviction notices and all rent-increase notices be filed with the Richmond Rent Board. Fair enough. It also requires that those notice be filed together with the proofs of service of those notices. Still, nothing unusual. The San Francisco Rent Ordinance requires a similar step, to be done for almost all notices within 10 days after the service. So does Berkeley and Oakland Ordinance, <i>i</i>.<i>e</i>. this is an expected and common requirement. The unexpected is how this step is asked to be done in Richmond:<br />
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<strong style="box-sizing: border-box; font-family: Arial; font-size: 14px;">Noticing </strong><br />
<span style="border: 0px; box-sizing: border-box; font-family: "arial" , sans-serif; font-size: 14.4px; margin: 0px; outline: 0px; padding: 0px; vertical-align: baseline;">All Landlords are required to file a copy of all rental increase notices, change of terms of tenancy and tenancy termination notices with the Rent Board <b>before</b> serving the Tenant the notice. Proof of service with time and date of service <b>must be included with the notice filed</b> with the City (RMC 11.100.060(s)). </span><br />
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(<a href="http://www.ci.richmond.ca.us/3373/Landlords">Link</a>)<br />
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Here is your chance, landlords and landlord-assisting practitioners. You must file a proof of service, indicating the date and time of that service, <i>before</i> you did the service. Since a proof of service is a declaration made under penalty of perjury (<a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CCP&sectionNum=2015.5." target="_blank">CCP § 2015.5</a>), you must declare what's true, which in this case is the statement of fact you will do in the future. Congratulations, you time-bender.<br />
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My inquiry as to how this can be done in practice, led to suggestions to put an estimated time and date, as to declare only about the intent of performing the service. I'll try. But I do remember that declarations must “conform strictly” to section 2015.5. <i>K<a href="http://www.lawlink.com/research/CaseLevel3/10858" target="_blank">ulshrestha v. First Union Commercial Corp</a></i>. (Cal. 2004) 33 Cal.4th 601, 612; <i><a href="https://scholar.google.com/scholar_case?case=12196699419390024753&hl=en&as_sdt=6&as_vis=1&oi=scholarr" target="_blank">Baron v. Mare</a></i> (1975) 47 Cal.App.3d 304. Before the legal novelty introduced in Richmond service requirements, the test of declaration's sufficiency was simple: the true test of the sufficiency of an affidavit (or declaration under penalty of perjury [Code Civ. Proc. § 2015.5]) is whether it is so clear and certain that an indictment for perjury could be sustained on it if it were found to be false. <i><a href="https://scholar.google.com/scholar_case?case=17333046607266281935" target="_blank">Mack v. Super. Ct</a></i>. (1968) 259 Cal.App.2d 7, 10.<br />
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How the declaration about an <i>intent</i> to serve a notice can be tested, this is by definition a declared statement of future intent, a speculation at best. More importantly, what policy purpose is achieved by requiring a landlord to declare his or her intent to serve a notice? I don't see any benefit, but I may be blind.<br />
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It does appear though that I was not the first one to point this curiosity out in the Richmond Ordinance. So, on July 19, the Board issued an Regulation <a href="http://www.ci.richmond.ca.us/DocumentCenter/View/43145" target="_blank">17-04</a>, explaining that they are Ok if you file a notice declaration two days after the fact. Phew! Not that the life is perfect now, since you are required to make <i>two</i> filings instead of one, first file the notice, then come back and file the proof of service (what's wrong with every other neighboring Board's procedure of filing both notice and proof together after the notice is served?), but at least I no longer need a time machine. And of course, this ease of filing requirements come only to those book worms who read every regulation published, because the actual ordinance and the "landlords" web page still contain the original file-before-served requirements. Why this correction had to be done as a separate regulation vs. a direct amendment of the actual ordinance, is yet another question going to the same black hole where all other questions raised in this article went. But, you know, at least since yesterday you can measure the gravitational waives coming from those black holes. So cheer up!<br />
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______________________<br />
<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br />
<br /></div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-17516213842095835562017-07-28T11:59:00.001-07:002018-01-12T10:44:45.951-08:00Owner move-in regulation expanded and tightened<div dir="ltr" style="text-align: left;" trbidi="on">
On July 18, 2017, <a href="http://www.sfexaminer.com/owner-move-reform-will-affect-sf-tenants-landlords/" target="_blank">the new proposed regulations</a> for the owner- and relative-move-in evictions <a href="https://sfgov.legistar.com/ViewReport.ashx?M=R&N=Master&GID=60&ID=3014914&GUID=B533ED95-7B1C-4CE8-AD7E-226687E52143&Title=Legislation+Details" target="_blank">passed</a> in their final version, and yesterday the mayor has <a href="http://www.nbcbayarea.com/investigations/San-Francisco-Mayor-Signs-New-Law-to-Combat-Wrongful-Evictions-Following-NBC-Bay-Area-Investigation-437078373.html?src=ilaw" target="_blank">signed</a> it into law. This legislation will significantly change the already heavily burdensome restrictions under the San Francisco Rent Ordinance, S.F. Admin. Code, Section <a href="http://sfrb.org/section-379-evictions" target="_blank">37.9(a)(8)</a>. It will become effective on January 1. Let us peek into what the legislators packed for landlords' Christmas sock.<br />
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<a name='more'></a>For some ordinances it is easier to retrieve a final version than others, but under this <a href="http://costa-hawkins.com/wp-content/uploads/2017/07/170349.pdf" target="_blank">link</a> it appears to be the amended PDF version of the ordinance, as close to the final 7/18/17 vote as possible ( I was unable to find a link to a version marked "final").<br />
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So this will have to do for us today, until an actual final version gets implemented into the main Ordinance's language, or at least appears at the "<a href="http://sfrb.org/whats-new" target="_blank">what's new</a>" section at the Rent Board's website.<br />
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So, let's go point by point and see how scary this new set of rules is.<br />
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<b>1</b>. Landlord will be required to provide a declaration under penalty of perjury stating that the landlord intends to occupy the unit for use as the principal place of residence of the landlord or the landlord’s relative for at least 36 continuous months. No change for landlords from the current situation, in my opinion. Landlords are already required to say so in the body of the notice, and that notice gets filed with the Rent Board and recorded in the City's Recorder's office. In other words, the landlord already makes a written statement to the government of her/his intent to occupy the place for those 36 months. Making it now in a form of a sworn declaration adds enforceability, but from my point of view, if you don't plan on occupying the place, it just as much makes no sense to issue a notice, as it would prevent you from declaring the same under the penalty of perjury. <br />
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<b>2</b>. Landlord will be required to provide a tenant with a form to use for informing the Rent Board about tenant's change of address. My comment - no big deal at all. First, we already are including forms with the notice, which already reaches a width of a mid-size book with everything included, so another page or two won't hurt. Second, this practice benefits the landlords, to avoid ambiguity when you need to serve those tenants for whatever follow up reason you may have. Third, this is no new practice -- Berkeley requires it, and it doesn't change anything in administration of an eviction.</div>
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<b>3.</b> Provisions for the "evidentiary standard" on what can be considered as evidence of landlord's bad faith. There are quite a few events written as the proposed standards, but it still remains a presumption and a question of fact. Therefore, in my opinion, a landlord endeavoring to proceed with an owner- or relative-move-in should be aware of what standard of conduct is expected of him/her, but not be intimidated by that list. Sure thing, there are more check-boxes to mark on the to-do list now, but nothing extraordinary. Here is the list: "Evidence that the landlord has not acted in good faith may include, but is not limited to, any of the following: <b>(1)</b> the landlord has failed to file the notice to vacate with the Rent Board as required by Section 37.9(c), <b>(2) </b>the landlord or relative for whom the tenant was evicted did not move into the rental unit within three months after the landlord recovered possession and then occupy said unit as that person's principal residence for a minimum of 36 consecutive months, <b>(3)</b> the landlord or relative for whom the tenant was evicted lacks a legitimate, bona fide reason for not moving into the unit within three months after the recovery of possession and/or then occupying said unit as that person's principal residence for a minimum of 36 consecutive months, <b>(4) </b>the landlord did not file a statement of occupancy with the Rent Board as required by Section 37.9(a)(8)(vii), <b>(5)</b> the landlord violated Section 37.9B by renting the unit to a new tenant at a rent greater than that which would have been the rent had the tenant who had been required to vacate remained in continuous occupancy and the rental unit remained subject to this Chapter 37, and <b>(6) </b>such other factors as a court or the Rent Board may deem relevant." From this list, I don't know how tenant-advocates will argue No. 3, which is pretty much a finding to be made under circumstances of each case, a hard thing to prove in my opinion, considering that each piece of real property is unique. Similarly, No. 6 leaves the door open for both sides to argue facts one way or another, just as it is argued presently. The rest are bureaucracy points, which we ought to comply.</div>
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<b>4</b>. Landlord will be required to file documentation with the Rent Board. This is an additional, and absolutely unnecessary burden imposed on the landlord. It is unnecessary because the landlord already stated in writing about the intent to occupy (and under the new rules, even declared so under penalty of perjury). Now in addition to all of that, same landlord had to "file the statement of occupancy with the Rent Board within 90 days after the date of service, and shall file an updated statement of occupancy every 90 days thereafter" and then "file updated statements of occupancy once a year for five years, no later than 12 months, 24 months, 36 months, 48 months, and 60 months after the recovery of possession of the unit." What is the reason to make a landlord do these additional bureaucracy steps, or how it helps anyone with anything, is not disclosed. What's not forgotten is, of course, a set of new penalties for skipped filings, a scale of $250-$500-$1,000 penalties, depending on how many times a landlord forgot to file. It is omitted in the version I read to differentiate between the entire failure to file, to file late or incomplete, and between doing so intentionally or due to mere negligence.<br />
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<b>5</b>. The time will now be extended from three to five years for when after an OMI during which a landlord must first offer the unit to the displaced tenant. Technically, there is an extension of time, but the outcome effect of this prohibition is slight -- we are already under the 5-year rule for not being able to re-rent at market level rates, the only difference now is not to re-rent to anyone except the original tenants. Yes, technically there is a difference, but not in practice.<br />
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<b>6</b>. The ordinance will now provide that a landlord who charges above the maximum allowable rent during the five-year period after an OMI is guilty of a misdemeanor -- just don't do it, Ok? Jokes aside, a criminal liability will require a finding of intent, and we will have to see how the courts will deal with this enforcement when the first poor landlord's soul will be dragged-in under this provision. Currently on the civil side of things, a miscalculation for a de minimis amount often throws the entire calculation out (say, a rent increase). I saw Board's decisions annulling rent increases differing by 5 cents. How much of an error has to be found to get the landlord criminally liable? Something remains to be seen. Also to note that the misdemeanor liability has been in the ordinance already, and not only in the rent ordinance.<br />
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<b>7</b>. The ordinance will require the Rent Board to annually notify the unit occupant of the maximum rent for the unit for five years after an OMI , and authorize the occupant to sue for three times any excess rent charged. Nothing for us to do, phew.</div>
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<b>8</b>. The ordinance will extend the statute of limitations for wrongful eviction claims based on an unlawful OMI from one year to five years. Keep your insurance policy current, don't skip on all steps required, reside at the unit where and when you promised to reside, and otherwise relax on this one. As I mentioned under No. 5, the OMI/RMI project has been already a five-year proposition, and having now the statute to be extended is not outrageous. Besides, tenants can argue tolling of the timing anyway, so again, not a big deal.<br />
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<b>9</b>. The ordinance will authorize interested non-profit organizations to sue for wrongful eviction and
collection of excess rent following OMIs. At least on this one it is clear who benefits from this new law. They should have put this as the first point, not the last one. If you were wondering, who needs all of these new steps and rules, here is your answer, it's all about money. No wonder, the Tenants' Union <a href="https://www.sftu.org/2017/07/owner-move-in-reform-passes/" target="_blank">claims</a> to lead this legislation. Landlords are routinely perceived as some walking money trees, and why not to pinch them for more. Too bad the Tenants' Union changed their logo, but I was able to find their original art on <a href="http://www.sfweekly.com/" target="_blank">SF Weekly</a> webpage. I think it summarizes this new "body of law" very precisely:</div>
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<a href="https://media2.fdncms.com/sfweekly/imager/how-to-survive-renting-in-san-francisco-f/u/blog/2655818/hammery2.gif?cb=1459662949" imageanchor="1" style="margin-left: 1em; margin-right: 1em;"><img border="0" data-original-height="166" data-original-width="163" src="https://media2.fdncms.com/sfweekly/imager/how-to-survive-renting-in-san-francisco-f/u/blog/2655818/hammery2.gif?cb=1459662949" /></a></div>
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Not surprisingly, with so much hard work on hammering this new law out, all these new rules and prohibitions, many questions remain unresolved. Here is an example of what still remains unaddressed -- how to treat a situation when an owner or relative, who moved-in under the OMI/RMI just cause, provides a portion of that residence for short-term rentals? I have a feeling this one little issue would have more reflection on how those evictions are regulated, than all nine points above combined. And yet it is not on the books. Something to think about.<br />
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All in all, nothing to lose your sleep over yet, as in "nothing new" for those who observe the general trend. Things get more minutiae-sized, bringing in more administration, more government control, more enforcement, more opportunities to step into a trap for unwary, more money to tenants and the so-called "not for profit" organizations, and more work for insurance carriers. Keep your ends tight, and, oh, move in before January 1, if you are considering such move in recent future. In the case you have to address the seasonal prohibition for notices to tenancies with children, perhaps consider issuing a long-term notice, so that its expiration would fall within the 2018 summer school break, while the issuance and service of notice are done still in 2017. Just a thought.<br />
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______________________<br />
<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br />
<br />
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<br /></div>
</div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-16654557973882780742017-06-01T11:08:00.002-07:002017-06-06T07:32:33.303-07:00Hayes v Kardosh - Rule 12.20 explained and limited<div dir="ltr" style="text-align: left;" trbidi="on">
In April an appellate decision came down in <i><a href="https://scholar.google.com/scholar_case?q=landlord+consent+illegal+contract&hl=en&as_sdt=4,5&as_ylo=2017&case=11354979796409401171&scilh=0" target="_blank">Hayes v. Kardosh</a></i>, containing a detailed discussion about the extent of Rule 12.20 limitations in changing the terms of a tenancy, explaining its meaning within the San Francisco Rent Ordinance and particularly applying it to the <a href="http://sfrb.org/part-6-rent-increase-justifications" target="_blank">Rules 6.15</a> regarding prohibition on subletting. It is too bad the decision is not certified for publication, but its reasoning still worth reading.<br />
<a name='more'></a>The lion share of the decision is concerned with the ability of a landlord to change a pre-existing written lease with a new one, and whether the landlord can evict a tenant under the terms of that new lease (particularly, for a violation of a stricter prohibition term against subletting), even if said tenant expressly disagreed with the proposed new lease and never signed it.<br />
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The answer is ... yes indeed, so long that the proposed additional or changed terms of the imposed new lease are themselves authorized by the applicable laws (including the rent ordinance).<br />
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The court also takes a jab at the good-faith requirement, whether the burden of proof of it is imposed on a tenant rather than on a landlord, under Cal. Evid. Code 500. This is an argument worth your time reading, yet keep in mind that the applicable part of the ordinance (37.9(c)) has been amended in 2015, after this case already went through the trial.<br />
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Full cite to this decision is: <i>Hayes v. Kardosh</i>, App. Case No. A142573, Cal. Ct. of Appeals, 1st Dist., Div. 2, filed April 18, 2017; appeal from the San Francisco City and County, Superior Court No. CGC-13-530191. Please note, the decision is unpublished.<br />
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Now, compare this 2017 decision in <i>Kardosh</i> with 2015 holding in <i><a href="https://scholar.google.com/scholar_case?case=15212903219467514430" target="_blank">Foster v. Britton</a> (2015) </i>242 Cal.App.4th 920, where the court “conclude[d] that section 827 does not preempt Rule 12.20 and that the Rent Board did not exceed its powers in adopting the challenged regulations.” Like <i>Kardosh</i>, <i>Britton</i> is concerned with Rule 6.15 as well, albeit its sub-rule 6.15C.<br />
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In both cases, the changes to the tenancy came under <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=827" target="_blank">CC § 827</a>. Also in both cases, the tenant informed the landlord about tenant's disagreement with the proposed changes. The tenant won in the 2015 published case and lost in 2017 unpublished one. The only material difference I was able to observe is that the eviction basis in<i> Britton </i>was not one authorized elsewhere by the Rent Ordinance (changes in housing services without just cause), while the ground in <i>Kardosh</i> (imposing "a lease term requiring the landlord's reasonable preapproval of a subtenant") was found not to be conflicting with the ordinance. This seems to be not the last point made in this discussion, and I expect it to be more harmonized in the near future.<br />
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______________________<br /><br />More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br /><br /><br />If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.<br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /><br /></div>
</div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-68272601026418934882017-02-02T00:30:00.000-08:002017-05-26T17:23:22.153-07:00Back to futuristic—for my future laptops I shall look over the shoulder<div dir="ltr" style="text-align: left;" trbidi="on">
<div class="MsoNormal">
This is what happens to people, who are left idle to
themselves—they may start thinking about some irrelevant stuff. This happened
to me: I got sick and, under the influence of “Tera Flu,” could neither work, nor
sleep. So it got me thinking. And who am I to think about work, while on
vacation away from boss (<i>me, when I am not sick, is that boss of mine</i>)? So, not
a word about work or law, here, I promise.</div>
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Instead, I started wandering off thinking about, what I can
improve around myself, what needs my attention, usually occupied by the things
we won’t talk about here. What is it that I have to fix, or replace, or add?
One by one, I realized I am looking soon at replacing my trustworthy MacBook
Air, which serves daily since 2013. It is still a great machine, but its
battery is not charging as fast, which to me is a signal that soon it will be
gone. Now, battery in this sleek laptop <b style="mso-bidi-font-weight: normal;"><u>is</u></b>
easily replaceable, (<a href="https://www.ifixit.com/Guide/MacBook+Air+13-Inch+Mid+2013+Battery+Replacement/15205">link</a>),
so I am safe here. Same relief is about changing <a href="https://9to5mac.com/2015/02/24/upgrade-ssd-macbook-air-retina-macbook-pro/">harddrives</a>.
Phew! But I couldn’t stop my thinking process, and thought then, if dropped or
stolen, I will be forced to buy and new machine.</div>
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That new machine will be, of course, another MacBook Air. It
will be Mac, because I spent 11 years fixing Windows computers, and Apple’s
both hard- and software were at that time ions ahead from anything else. I quit
in 2008, so may be there is an improvement, but I am not planning on testing it
on myself. It will be Macbook, because I work almost exclusively on the go, I
have no chance to use a desktop PC. And it will be Macbook Air, because it is
lighter, and I am the one who hauls it around. I had full models of Macbooks
before, and they are bricks comparing to Air. It also helps that the battery
life <i style="mso-bidi-font-style: normal;">usually</i> is huge, enough for a
day of work.</div>
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So, if I am on the market, I reminded myself that Apple <a href="http://www.theverge.com/2016/10/27/13441150/rip-magsafe-apple-macbook-pro-charging-cable-usb-c">dealt
away</a> with its magnetic charger plug (MagSafe), and, if that was not enough,
also <a href="http://www.pcworld.com/article/2895152/six-things-to-know-about-the-usb-31-port-in-the-new-macbook.html">killed
all ports</a> in exchange for some mysterious “USB-C,” implemented <a href="https://support.apple.com/en-us/HT204360">since 2015</a>.</div>
<div class="MsoNormal">
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Now, I think this move was crazy! Anyone who uses any
peripherals either have to upgrade (and use just one peripheral), or to get a
hub, and walk around with a web of cables and adapters, or let go of the
peripherals, or move to PC and other non-mac laptops. But you don’t have to
give my personal thoughts any weight. How about the market research, that <b style="mso-bidi-font-weight: normal;">40%</b> of macbook users (something I
thought to be a very loyal <a href="https://flowingdata.com/2011/04/26/mac-vs-pc-people/">bunch</a>) <a href="https://intelligence.slice.com/apples-macbook-pro-launch/">moved to
another platform since 2014</a>? </div>
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<img alt="macbook pro-switching" class="alignnone wp-image-2467 size-full" height="307" sizes="(max-width: 2168px) 100vw, 2168px" src="https://intelligence.slice.com/wp-content/uploads/2016/11/Apple-to-PC-1.jpg" srcset="https://intelligence.slice.com/wp-content/uploads/2016/11/Apple-to-PC-1.jpg 2168x, https://intelligence.slice.com/wp-content/uploads/2016/11/Apple-to-PC-1-300x231.jpg 300x, https://intelligence.slice.com/wp-content/uploads/2016/11/Apple-to-PC-1-768x591.jpg 768x, https://intelligence.slice.com/wp-content/uploads/2016/11/Apple-to-PC-1-1024x788.jpg 1024x, https://intelligence.slice.com/wp-content/uploads/2016/11/Apple-to-PC-1-200x154.jpg 200x, https://intelligence.slice.com/wp-content/uploads/2016/11/Apple-to-PC-1-150x115.jpg 150x" width="400" /></div>
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This is market’s vote by its dollars, and they may go
elsewhere. Think about someone like me, a very low-sophistication user, no
coding, no gaming, mostly paper and image processing. I use USB sticks to print
my docs and give the sticks away when I need to deliver a file. I use ergonomic
USB keyboard and mouse, when my hands hurt. I use tethering for running Internet
from my phone, via a USB cable, to be online where is no WiFi.<span style="mso-spacerun: yes;"> </span>Would I ever imagine dragging around a
multiport <a href="https://www.amazon.com/Apple-USB-C-Digital-Multiport-Adapter/dp/B00VU2K10G">adapter</a>
for all of that? I won’t, and so, apparently, I am not alone. I don’t want to
send to obsolesce all my USB stuff either, and I am still tripping over
occasionally over my power cord, causing it simply to disconnect. (If you want
this feature to remain on a new macbook, buy yet another <a href="https://www.kickstarter.com/projects/branchusb/magneo-first-true-usb-c-magnetic-adapter">adapter</a>).
And these older devices are not that obsolete, they are still sold, including
by Apple. Let’s go the Apple Store of today, and see that they still sell USB and
Thunderbolt devices (<a href="http://www.apple.com/shop/product/MC704LL/A/apple-usb-ethernet-adapter?fnode=fee901ed8442f0b8b173e181426b4a1d3083147dc2baf205fec0f0f49c719fdb67393445c50daa3d58ead68bca98bd520dfbe3bfbb292fb53602a3874975b58ae46f550da1d889c7a05faa2f12e0b0001ceffe6f366fbbf1e10110d9c7a180f1">this</a>,
<a href="http://www.apple.com/shop/product/MC003AM/A/apple-ipod-shuffle-usb-cable?fnode=fee901ed8442f0b8b173e181426b4a1d3083147dc2baf205fec0f0f49c719fdb67393445c50daa3d58ead68bca98bd520dfbe3bfbb292fb53602a3874975b58ae46f550da1d889c7a05faa2f12e0b0001ceffe6f366fbbf1e10110d9c7a180f1">this</a>,
<a href="http://www.apple.com/shop/product/HKQK2ZM/A?fnode=9e037d46ad0f9770b6791005892201374ec11eafa6b862e1c0f966f858ac30c2c9126b6a6778e7381c708cf502a6c4567f3d80ceca99c18d8b03146c412186ddc88606ca20c06e7c5bcb519df435e1f674b4fbba18894cd91ced62ff3353f379">this</a>
and <a href="http://www.apple.com/shop/product/MD464LL/A/apple-thunderbolt-to-firewire-adapter?fnode=81fb1c600ec1736e390c6c203e9c87f6492e92ee9ee528a398c8b2381f0557ec6d3581e4a9be1fd09e5fc4335542634ce217cc3a7994717a5c7d960876b019633387dacb3eac335d427bc132093f210f1522a26e624aeb5c39a1e585017ee562">this</a>,
for example). Where, pardon me asking, I am going to plug those to in the new
machine?</div>
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I used to live in one of the two areas inhabited most of the
Apple users (Silicon Valley and Boston were the two as of <a href="https://www.geek.com/apple/silicon-valley-boston-top-list-of-markets-with-most-apple-users-1362473/">2010</a>).
I still see mostly MacBooks on the tables in coffee-shops, and I do spend a
great deal of my daily time and work in coffee-shops locally in Bay Area. I am
yet to encounter one person using any USB-C adapter or dongle, for
anything.<span style="mso-spacerun: yes;"> </span>In other words, I
understand, devices are out there, and available for purchase and carrying
alongside your laptop, and may be their makers make a good dollar on those
adapters, but I don’t see any widespread use, or even a limited, modern use, of
any of those contraptions. </div>
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SFist <a href="http://sfist.com/2016/10/27/apple_unveils_new_macbook_with_touc.php">said</a>
3 months ago: “specifically the huge MacBook Air crowd tapping away in coffee
shops and campus libraries — may be less pleased to learn that their next
computer won't be like their last one, and it will likely be more expensive,
too.”</div>
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Why less pleased? I think I covered the possible reasons (and I am not even starting on the now-missing <a href="http://www.usatoday.com/story/tech/2016/10/27/new-macbook-pro---miss-sd-card-slot/92849134/" target="_blank">SD slot</a>, which I use weekly at least). Why those changes and burning the bridges? On this topic, I don’t have an answer. People advocate the “future”
and the need for early adoption, and how logical it is for us to switch to the
newly proposed design, forcing us to have a laptop with just one or two ports. These advocates do have a point, the same simplification
and trimming down on buttons and options works for iPhone (one button, and now
not even a earplug <a href="http://www.forbes.com/sites/jvchamary/2016/09/16/apple-iphone-headphone-jack/">outlet</a>),
and appears to work for slimmed-down iWatch. These devices’ sales numbers are <a href="http://www.macworld.co.uk/news/apple/apple-q1-2017-financial-results-revenue-figures-apple-earnings-report-3581769/">great</a>. But this success does not translate to laptops. I feel that laptops are a different category of a tool, a different usage experience is expected from them.</div>
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It seems to me that the user’s expectation of use, or
the <i style="mso-bidi-font-style: normal;">utility</i>, of a laptop is different
from that of a phone, tablet, or watch. I just can’t bang a solid number of
words per minute on an iPad, forget a phone. On the phone or tablet, I can’t conveniently edit a
picture in a functional editor (say, Photoshop or a similar app), or complete a document in Word.<span style="mso-spacerun: yes;"> </span>Sure, I still can review the file on any device,
make a quick comment, send it by email, save, delete, or duplicate. I can browse most of the webpages. But I can’t
<i>fully </i>work on it, because I can’t access all formatting options from a phone, and I
don’t know anyone who can. Thus to me, the <i style="mso-bidi-font-style: normal;">utility</i>
of the current laptop is plummeting to nil. </div>
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What is left? A great computing
power, great graphics, great exterior, and luckily you still get a keyboard and
a trackpad. What that all means without options to connect—a very good, beautiful,
sophisticated, expensive <b>toy</b>. It will still work for showing off, and it will seamlessly
assist its user with what can be done internally within that laptop’s system.
For anything else—there is a dongle.</div>
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[Picture is taken from <a href="http://www.theverge.com/2016/11/2/13490774/apple-macbook-pro-review-2016-13-inch-laptop" target="_blank">this The Verge post]</a>. Yet Apple is <a href="http://www.theverge.com/2016/11/2/13490774/apple-macbook-pro-review-2016-13-inch-laptop">doubling
down</a> on requiring more dongles! This last cited article rings home for me, because it
analyzes the <i style="mso-bidi-font-style: normal;">today</i> connectivity in
the <i style="mso-bidi-font-style: normal;">today</i>’s mobility need. Future is out there, but we will probably go through 2-3 laptops before the future concepts of the one-port and completely no-externals usage will become norm. </div>
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In the meanwhile and today, the present-day connectivity and mobility needs are becoming more and more foreign for the new macbook editions. Sure, it
may in some near future become widely adopted, but you could buy that one-port machine then, if you want it. What’s the point of torturing yourself today? The Virge article concludes: “for the first time in seven years, I am not sure if my
next laptop will be a MacBook.” I disagree! My next laptop still will be a MacBook. Only it will be a 2014 late
Macbook Air, the model year when all the ports were <a href="https://www.google.com/search?q=Apple+MacBook+Air+13.3-Inch+Laptop+Intel+Core+i7+2.2GHz%2C+512GB+Flash+Drive%2C+8GB+DDR3+Memory&ie=utf-8&oe=utf-8#tbm=shop&q=+%22MacBook+Air%22+13.3-Inch+i7+2.6GHz%2C+512GB+SSD%2C+8GB">still
provided</a>. There is still plenty of supply, so no need to worry! And if you paid attention, the battery and hard drive are replaceable! Much relieved!</div>
</div>
Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-77112084542045062412017-01-15T22:38:00.002-08:002017-05-26T17:22:56.056-07:00New rules on restricting access to unlawful detainer records<div dir="ltr" style="text-align: left;" trbidi="on">
Unlawful detainer records used to be "masked" from public access for the first 60 days and then, if no defendant settled or got dismissed in the interim and the case was still going on, the record would become publicly available. Case's records were opening up by default—a stipulation or a court order was required for the records to become hidden again. Now the order of things is refersed—it remains masked by default, and only upon a certain condition opens to public. <a href="https://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB2819" target="_blank">Assembly Bill No. 2819</a>, amending <a href="http://law.onecle.com/california/civil-procedure/1161.2.html" target="_blank">CCP § 1161.2</a> and establishing <a href="http://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?sectionNum=1167.1.&lawCode=CCP" target="_blank">CCP § 1167.1</a>, effective January 1, 2017.<br />
<br />
<a name='more'></a>In the past, it looks like each California county's court treated the masking rule differently, at least this is the case I am observing in my cases I had in Northern California counties.<br />
<br />
In San Francisco, if the record was restricted, it would not show you the case, only sometimes revealing the litigant's name, and only if no other cases are recorded against that party. A dismissal of any party, even a Doe defendant, within first 60 days would result in permanent mask on the record. Contra Costa court was less secretive, it freely shown parties' names and even the case number, online and free of charge. Alameda court recently started charging for searches by party's name, but other than making money on the searches, it would suggest the case. San Mateo court would show the record open, even if there was dismissal of DOEs made within the first 60 days. I had mixed experience in Marin county, with some cases sealed entirely and some openly published online.<br />
<br />
Observe that each court seems to use a different software provider: the above-mentioned San Mateo, San Francisco, Alameda, Contra Costa, and Marin, each deploys an entirely different database interface. It must be a contributing factor to what amount of data different courts show for masked cases.<br />
<br />
Please also note that CCP § 1161.2 only talks about limited jurisdiction cases. This means, at least in theory, that cases with rent or rental damages due in amounts over $25,000 should be open for public, exempt from the masking rule. I did not see this distinction applied under the old rule, just as I haven't seen courts readily distinguishing between residential and commercial cases, and there is no reason to suspect that the courts will act differently under the new rule. I thus expect all cases, limited and unlimited, residential and commercial, all being masked the same way, but the time and application may prove me wrong. It is technically possible to distinguish, even if the decision is made by a computer's algorithm, because these differences are all marked on the case cover sheet (<a href="http://www.courts.ca.gov/documents/cm010.pdf" target="_blank">CM-010</a>) at the time the action is filed.<br />
<br />
And so with this new rule, I don't expect the picture to change globally. Less restrictive courts will still show more hints on the otherwise-hidden cases, and parties' names is in most cases all one needs to access the record in a case masked under 1161.2. This is because the remaining information is easy to grab elsewhere. For example, if you need property's address, for a single-family residence you can obtain it from the county's recorder. For a multi-unit property, you may identify it through the remaining residents of other units. And in the counties or cities with an active rent board, the task can be accomplished by searching that board's records, which are in most occasions are publicly accessible.<br />
<br />
A word of caution with regard to the newly baked CCP § 1167.1, added by the same Assembly Bill 2819: calendar your cases for the 60-day mark to file proofs of service, or fall into court's discretion for the case's dismissal if you haven't filed it. This rule is at odds with the general rule of civil procedure, where, in presence of a similar 60-day rule for filing a proof of service, defendant's general appearance in the case is deemed as an admission of that defendant's actual notice of the lawsuit, thus eliminating the need of returning summons to court or filing other proof of service. See, <i><a href="https://scholar.google.com/scholar_case?q=Weatherby+v.+Van+Diest+(1991)+233+Cal.App.3d+506&hl=en&as_sdt=4,5&case=15466331797752135457&scilh=0" target="_blank">Weatherby v. Van Diest</a> </i>(1991) 233 Cal.App.3d 506, 509. In general civil cases, defendant's filing of the answer excuses the plaintiff's performance under <a href="http://leginfo.legislature.ca.gov/faces/codes_displayText.xhtml?chapter=1.5.&part=2.&lawCode=CCP&title=8.&article=2." target="_blank">CCP §§ 583.210, 583.220</a>. <i><a href="https://scholar.google.com/scholar_case?q=Weatherby+v.+Van+Diest+(1991)+233+Cal.App.3d+506&hl=en&as_sdt=4,5&case=5371370526927334441&scilh=0" target="_blank">Biss v. Bohr</a> </i>(1995) 40 Cal.App.4th 1246, 1251. I am predicting that courts will interpret this new section 1167.1 similarly to section 583.210, but, unless you want your case to become the testing ground of this procedural nuance, I suggest you mark the calendar to ensure your proofs are filed within 60 days from service.<br />
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More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
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If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, <span style="font-family: Times; font-size: 16px; letter-spacing: 0px;">and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. </span><a href="http://www.volf.com/" style="font-family: Times; font-size: 16px; letter-spacing: 0px;"><span style="color: #042eee; letter-spacing: 0px;">My office</span></a><span style="font-family: Times; font-size: 16px; letter-spacing: 0px;"> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.</span><br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com1tag:blogger.com,1999:blog-4345633939836449546.post-52698642010120456712016-12-29T17:26:00.003-08:002017-05-26T17:22:40.632-07:00New rest period policies in California<div dir="ltr" style="text-align: left;" trbidi="on">
On December 22, 2016, California Supreme Court in <i>Augustus v. ABM Security Services</i> (Case <a href="http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?dist=0&doc_id=2102281&doc_no=S224853" target="_blank">S224853</a>) has reversed the <a href="https://scholar.google.com/scholar_case?case=10209069917945927241&q=Augustus+v.+ABM+Security+Services+&hl=en&as_sdt=4,5">prior decision</a> made by the appellate court [233 Cal.App.4th 1065 (2014) as modified 1/29/15], and pretty much established new rules applicable to the rest period policies.<br />
<a name='more'></a><br />
A copy of the decision is currently available on the court's website, <a href="http://www.courts.ca.gov/opinions/documents/S224853.PDF" target="_blank">here</a> and on the Google Scholar, <a href="https://scholar.google.com/scholar_case?case=13218786935509954208&q=S224853&hl=en&as_sdt=4,5" target="_blank">here</a>. Don't wait until an oficial publication comes out, use this time to check your company's policy against the newly announced view on what it takes to provide a real rest break for an employee. No "on call" or "on duty" availability for Order 4-2001* employees: "state law prohibits on-duty and on-call rest periods. During required rest periods, employers must relieve their employees of all duties and relinquish any control over how employees spend their break time. ... Employees forced to remain on call during a 10-minute rest period must fulfill certain duties: carrying a device or otherwise making arrangements so the employer can reach the employee during a break, responding when the employer seeks contact with the employee, and performing other work if the employer so requests. These obligations are irreconcilable with employees' retention of freedom to use rest periods for their own purposes" (<i>Id.</i>)<br />
<br />
And if an employer finds it impractical or burdensome: " Several options nonetheless remain available to employers who find it especially burdensome to relieve their employees of all duties during rest periods — including the duty to remain on call. Employers may (a) provide employees with another rest period to replace one that was interrupted, or (b) pay the premium pay set forth in Wage Order 4, subdivision 12(B) and section 226.7" (<i>Id.</i>)<br />
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* The decision makes a distinction with the 5-2001, where under limited circumstances an employee may remain on-call during the rest break.<br />
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Your options and available strategies will depend on your case's particular facts. If you currently need help with a labor-related legal issue, make your first step toward taking control over the circumstances, and give me a call at (415) 987-7000. I will be glad to guide you through the jungle. The only thing you can't afford is to stay put and uninformed. <a href="http://www.volf.com/">My office</a> provides a confidential assessment of your particular scenario, free of charge, and I will be glad to share with you the results of my analysis, along with the thoughts on available solutions.<br />
<div>
<br />
______________________</div>
<div>
More <a href="http://ponfo.blogspot.com/search/label/employment">employment</a> posts<br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-44193231156978800542016-10-31T22:19:00.003-07:002018-05-25T12:14:37.847-07:00"Educators" ban on evictions is gone, no longer<div dir="ltr" style="text-align: left;" trbidi="on">
[02-14-2018: Court of appeals <a href="http://www.courts.ca.gov/opinions/documents/A149919.PDF">reversed</a> the judgment];<br />
[Cal. Sup. Ct. denied review on April 25, 2018; Rent Ordinance reinstated back the "educators" ordinance's language on May 15, 2018, see the press release <a href="https://sfrb.org/article/california-supreme-court-denies-review-court-appeals-decision-upholding-ordinance-amendment">here</a>].<br />
<br />
On September 28, 2016, the San Francisco court adjudged the writ of mandate <a href="http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF16515087" target="_blank">granted</a> on August 31, invalidating the infamous ordinance of last year, which was injecting a new type of a protected tenant, the "educators." That the new limitation was overbroad and unnecessary wide, both as to covering categories of tenants, and in including previously unheard-of amount of types of evictions (even the temporary move-out for repairs)—all that I have already had an opportunity to cover in my <a href="http://ponfo.blogspot.com/2016/05/new-category-of-tenants-in-sf-educators.html" target="_blank">earlier post</a>. Thus, the Court's decision, invalidating the ordinance, was not a surprise to me.<br />
<br />
What is surprising is how the Court arrived to invalidating this ordinance. This path seems to me worth our attention, to make a mental note in case of a similar argument in the future.<br />
<a name='more'></a><br />
The text of the order is now published on the Rent Board's site (<a href="http://sfrb.org/sites/default/files/Document/What's%20New/SF%20Apt%20Assn%20--%20Aug%2031%202016%20Order.pdf" target="_blank">link</a>). We are also given an opportunity to see the transcript of the hearing leading to the order. The hearing record is attached to the October 28, 2016, Request For Transcript, see the <a href="http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF16515087" target="_blank">docket link</a> for scanned documents.<br />
<br />
Perhaps, I am not as mighty a legal prophet as I thought of myself, when I wrote down my predictions of reasons, why the Educators' ordinance should be invalidated. Save for a couple of hints, one where the Court asks counsel if the ordinance is so broad it would include a "yoga teacher," who does it once a week (see the hearing transcript on page 16), and another in discussing a hypothetical that an owner would have to wait until a summer break, even when a boiler breaks and the unit has no heat (<i>Id</i>., see pages 10 and 23), none of my points were considered as factors in the actual order, and the actual reason behind the Court's grant of the writ did not occur to me at all.<br />
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<br />
The main analysis of whether to invalidate the ordinance was hinged on the reasons I would never have imagined. Not only I haven't speculated about it as a potential ground, I am still puzzled how it could be the only and determinative factor. What satisfied the Court, was the uncertainty of timing of the notice, when its only measurement is directed by referencing a summer break in the school year, something another department of the same municipality sets annually at its whim. (Order, footnote 1). Requiring a landlord to adjust her eviction notice per the school-year break was the factor "A" in the order (Order, p.2:12-18), and technically the only one, since the second factor "B" logicality follows from the first: if a landlord fails to comply with the ordinance, a tenant gets an affirmative defense to challenge the eviction.</div>
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<br />
The Order explains that it is improper for a landlord to learn after-the-fact that her notice was invalid, because only after the notice was already served, would the tenants respond in stating their "educator" status, and thus render invalid any notice served with the maturity date outside of the school year.</div>
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<br />
Critics may point out that we have already several grounds in the rent ordinance, operating without challenge on similar mechanics: in OMI/RMI evictions, the responding tenants may present, within 30 days following service of the notice, their evidence of being a household with kids, thus requiring the eviction to happen only within the summer break (the same timing definition as one invalidated in this ordinance). See the pre-ordinance version of 37.9(j)(3). Tenants also have rights to deliver after-the-fact "fatal news" to the noticing landlords in other situations: a 45-day period to rescind the already agreed-upon buyout agreement (<a href="http://sfrb.org/379e-tenant-buyout-agreements" target="_blank">37.9E(g)</a>); or when an approved tenant may return to reside in the unit together with a non-approved occupant, thus invalidating a notice under 37.9(a)(7).<br />
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In my personal observation, a landlord often faces uncertainty of shooting in the dark when serving a notice, because the actual situation with the unit and unit's occupants may differ from what the landlord imagines it to be. But getting back to the examples raised at the hearing: a temporary eviction for capital improvements or repairs (Sec. 37.9(a)(11)) involves a different species of a notice: it requires that the landlord undergoes obtaining all needed building permits <i>before</i> the notice is served. See, 37.9(a)(11), first sentence: "[t]he landlord ... has obtained all the necessary permits on or before the date upon which notice to vacate is given." This, my friends, is often not as ordinary a step as it seems. It often takes much time and money, and the tenants may take a landlord for a ride or two by appealing the permit application, something now happening more often than in the past, since the DBI now requires to notify tenants in most of the scenarios before a permit can be issued, sometimes before it can be even applied for.</div>
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When all the hoops are jumped and the permits are received, those permits still have an expiration date, and their shelf-live is limited. And after all these efforts and expenditures to have a notice served, to learn that the tenant claims an "educator" status, it would be a big and expensive blow. Especially since being an "educator" in the proposed definition is so unobvious (unlike a tenant being over a certain age, or having kids, something a landlord may at least predict in most situations).</div>
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The Court in the present case disposed of the "educator" ordinance by viewing it as regulating the eviction's procedural steps rather than the substantive ones. And if it is so, the Court found it preempted by the state law, under the rule "that the timing of landlord-tenant transactions is a matter of statewide concern not amenable to local variations" <i><a href="http://law.justia.com/cases/california/court-of-appeal/3d/196/1283.html" target="_blank">Tri County Apt. Ass'n v. City of Mt. View</a></i> (1987) 196 Cal.App.3d 1283, 1298. Again, not that we don't have timing limitations imposed in our local ordinance for other eviction grounds. For example, the ordinance requires no less that 10 days to give a tenant to cure a violation in connection with subletting (Sec. 37.9(a)(2)(D)), whereas the state only asks for 3 days (<a href="http://law.onecle.com/california/civil-procedure/1161.html" target="_blank">CCP § 1161</a>). And for <i>each </i>eviction, except non-payment of rent, the local ordinance imposes an additional procedural step at the notice level, to file a copy with the Rent Board (Sec. 37.9(c), 4th sentence), and an additional procedural step at the complaint level, "to plead and prove" a ground for eviction under Section 37.9 (<i>Id</i>., 6th sentence).</div>
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<br />
The second case cited in the order, <i><a href="http://law.justia.com/cases/california/court-of-appeal/4th/11/88.html" target="_blank">Channing Properties v. City of Berkeley</a></i> (1992) 11 Cal.App.4th 88, 96-97, discusses the difference between the limitations on municipal ordinance to add substantive vs. procedural regulations in addition to what is required under the state law. The <i>Channing Properties </i>case relates to the Ellis Act. Interestingly enough, when it comes to the Ellis Act, the rule seems to be exactly the opposite—substantive regulations are left to the state, while at least some procedural protections are allowed for interpretation by municipalities: "While the Ellis Act does not prohibit local governments from providing procedural protections designed to prevent abuse of the right to evict tenants (Gov. Code § <a href="http://law.onecle.com/california/government/7060.7.html" target="_blank">7060.7</a>, subd. (c)), it “completely occupies the field of substantive eviction controls over landlords who wish to withdraw” all units from the residential rental market." <i><a href="https://scholar.google.com/scholar_case?case=17230053857930671743" target="_blank">Johnson v. City and County of San Francisco</a></i> (2006) 137 Cal.App.4th 7, 14, citing <i><a href="https://scholar.google.com/scholar_case?case=1449727487574705039" target="_blank">City of Santa Monica v. Yarmark</a></i> (1988) 203 Cal.App.3d 153, 167.*<br />
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In short, the Order is unusual, and its treatment at the appellate level deserves attention, as it may affect other provisions in our local ordinance, and, perhaps, other municipal ordinances as well. Worse comes to worse, I hope that the "right result" rule will help this Order to survive the appeal, because "[i]f right upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusion." <i><a href="https://scholar.google.com/scholar_case?case=16844004018687897237" target="_blank">Ziegler v. Barnes</a> </i>(1988) 200 Cal.App.3d 224, 233, fn. 8, citing <i><a href="https://scholar.google.com/scholar_case?case=6125437638455016554" target="_blank">D'Amico v. Board of Medical Examiners</a></i> (1974) 11 Cal.3d 1, 19.</div>
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The practical outcome of the September 28, 2016, decision in <i>SFAA v CCSF</i>, is that the provisions of the Section 37.9(j)(4), previously enlarged by the Ordinance 55-16, are now shrank back to the pre-ordinance limits, applying only to the OMI/RMI evicting under Section 37.9(a)(8), and containing no "educator" additions. But be cautious in relying on this decision just yet—the City has already appealed the order, and we may expect a new turn on this subject within half a year.<br />
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So, in the meanwhile, anyone who needs to fix a boiler—don't waste another minute, the coast is clear and you don't have to wait, neither until the next summer, nor until the appeal is over, do it now, before another ordinance comes up with some hurdle.</div>
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______________________<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
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______________________<br />
* Preemption of the Ellis Act is such an often topic, we have it discussed in the <a href="http://ponfo.blogspot.com/2016/09/10-year-ban-on-residential-mergers.html" target="_blank">post</a> immediately before this one, covering the case against 10-year ban on mergers.<br />
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<br />
If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, <span style="font-family: "times"; font-size: 16px; letter-spacing: 0px;">and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. </span><a href="http://www.volf.com/" style="font-family: Times; font-size: 16px; letter-spacing: 0px;"><span style="color: #042eee; letter-spacing: 0px;">My office</span></a><span style="font-family: "times"; font-size: 16px; letter-spacing: 0px;"> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.</span><br />
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Post & Foundhttp://www.blogger.com/profile/05619253980562137829noreply@blogger.com0tag:blogger.com,1999:blog-4345633939836449546.post-54659347676730643352016-09-29T11:38:00.002-07:002017-05-26T17:20:51.303-07:0010-year ban on residential mergers following non-fault eviction is confirmed as invalid by the appellate court<div dir="ltr" style="text-align: left;" trbidi="on">
On September 19, 2016, San Francisco homeowners got confirmed in their relief, when the appellate court affirmed our county court's decision to strike a 10-year ban on residential mergers, following a non-fault eviction. The decision became final on October 24 (3 Cal.App 5th 463). And yes, we are now in the fifth series of appellate decisions, since July 1, 2016.<br />
<a name='more'></a><br />
San Francisco Planning Code, <a href="http://library.amlegal.com/nxt/gateway.dll/California/planning/planningcode?f=templates$fn=default.htm$3.0$vid=amlegal:sanfrancisco_ca$sync=1" target="_blank">Section 317,</a> regulates residential mergers. Residential mergers, unless subject to Conditional Use, are generally prohibited. S.F. Planning Code, Sec. 317(f); see also, Sec. 101.1(b)(3) for the declared reason of such prohibition, securing more of affordable housing.<br />
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In early 2014, the supervisors added another measure to further toughen up mergers of residential units, particularly to further discourage non-fault evictions: to prohibit mergers for 10 years following such an eviction. This rule became codified under Section 317(e)(4). San Francisco Apartment Association sued, on the grounds that this prohibition violates the statewide Ellis Act. This is because the legislative history of this ordinance demonstrates that the Ellis Act evictions were the primary goal of this new prohibition.<br />
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In November of 2014, the trial court found Section 317(e)(4) <a href="http://webaccess.sftc.org/Scripts/Magic94/mgrqispi94.dll?APPNAME=WEB&PRGNAME=ValidateCaseNumberSHA1&ARGUMENTS=-ACPF14513452" target="_blank">unenforceable</a>. The City appealed, and the appellate decision just got issued 10 days ago, on September 19, 2016. Here is the <a href="https://scholar.google.com/scholar_case?case=12984385038089789245" target="_blank">copy</a> (it is not yet certified for publication).<br />
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The court in this case, <i>San Francisco Apartment Association v. City and County of San Francisco</i> (2016) [Appeal. case No. A144702, trial case No. CPF-14-513452] relied on a chain of prior decisions*, finding that the Ellis Act preempts the subject ordinance, in that the city may not impede an owner's decision to quit residential rental business by means of the Ellis Act, it has to remain "unfettered."<br />
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I would personally add an observation that, although only a fraction of Ellis-Acting properties are merging after the eviction, the inability to do so creates an additional negative mark on the property title, negatively affecting the property value. This in itself seems to be an additional penalty a property owner would incur for choosing to quit the rental market. And this is different from the currently imposed similar time limits on the owners to re-enter the rental market, limiting and regulating their ability to offer the Ellis-acted units for rent, dictating on the ordinance level when, how, and for how much those units can be offered for rent. In the later, it is obviously a regulation of a rental policy, something the municipalities mostly do (<i>e</i>.<i>g</i>., the rent-control ordinance); but in the first instance, there is no direct connection between the events: the owner may be merging the units for her own use. And, thanks to <i>SFAA v CCSF</i> case, she can do so without first waiting for 10 years.<br />
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<br />
<br />
<br />
If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, <span style="font-family: Times; font-size: 16px; letter-spacing: 0px;">and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. </span><a href="http://www.volf.com/" style="font-family: Times; font-size: 16px; letter-spacing: 0px;"><span style="color: #042eee; letter-spacing: 0px;">My office</span></a><span style="font-family: Times; font-size: 16px; letter-spacing: 0px;"> provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.</span><br />
<br />
<br />
______________________<br />
More <a href="http://ponfo.blogspot.com/search/label/real%20property">real property</a> posts<br />
<br />
<br />
<br />
______________________________<br />
* <a href="http://www.leginfo.ca.gov/cgi-bin/displaycode?section=gov&group=07001-08000&file=7060-7060.7" target="_blank">Gov. Code, § 7060.7</a>; <a href="https://scholar.google.com/scholar_case?case=1895668123961108456&hl=en&as_sdt=2006"><i>Javidzad v. City of Santa Monica</i> (1988) 204 Cal.App.3d 524, 530</a>, <i><a href="https://scholar.google.com/scholar_case?case=1449727487574705039" target="_blank">City of Santa Monica v. Yarmark</a></i> (1988) 203 Cal.App.3d 153, 165; <a href="https://scholar.google.com/scholar_case?case=1980353035608245973&hl=en&as_sdt=2006"><i>Channing Properties v. City of Berkeley</i> (1992) 11 Cal.App.4th 88, 94</a>; <a href="https://scholar.google.com/scholar_case?case=14921913577580765514&hl=en&as_sdt=2006"><i>L.A. Lincoln Place Investors, Ltd. v. City of Los Angeles</i> (1997) 54 Cal.App.4th 53, 61-62 (<i>Lincoln Place I</i>)</a> - authorities cited in <i>SFAA v CCSF</i> case, among others, on this subject.<br />
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