Tenant Relief Act of 2020 - Forms

The Tenant Relief Act of 2020 has passed into law, and its full text is available here. 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.

Intermediate Length Occupancy Ordinance passed

On May 5, 2020, the Board of Supervisors accepted in first reading the fifth version of the new "Intermediate Length Occupancy" regulation (link).

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

Compliance with the statewide rent control requirements

The set of statutes defining the California statewide rent- and eviction-control were enacted back in September 2019 (the AB 1482 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.

Statewide rent control is coming to California. Like now.

[2019-09-11 UPDATE] it has passed the Senate today.

This is just in. The bill passed the Assembly and is expected to pass the Senate as well:
https://www.mercurynews.com/2019/05/29/california-rent-cap-bill/amp/

Current version of the bill is here.
Related to is Assembly bill on "just cause" eviction control is moving along as well, progress is reported here.

All of the above is despite last Fall's failure to win voters' consent to similar measures at the poll, the "Proposition 10."

How Preemptive Is the Ellis Act?

On June 20, 2018, California Supreme Court denied review of Small Property Owners of San Francisco Institute v. City & County of San Francisco (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 § 7060 et seq.).  How often it is a winning argument, and how universally its preemption is applied? Let us take a look at a few recent decisions.

Another attack on Rent Ordinance Registration Requirement--This Time In San Jose

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 me there?"

This anecdote came up when I've read the news yesterday, announcing that the San Jose landlords seek court's help in preventing the San Jose's rent ordinance new requirement 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.

The "Educators" Ordinance Is Back

Today the court of appeals reversed in full its 2016 judgment, which up until today was holding the "educators" 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).

New 2018 edition of the "Eviction Notice In SF" is out

I could write my own introduction to this new edition, but I like this one instead:

"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 General History of the Pyrates, 4th Ed., 1726.

Bending Laws of Physics - A New Opportunity For Lawyers in Richmond

Lawyers are so generally expected to be masters at bending laws, there are folklore quotes about it in pretty much every language. In Russian, the saying goes as "The Law is like an axle--it goes where you turn it." In other words, fatta la legge trovato l'inganno. 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.

This is not say that time-bending is impossible. 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 detected, and the BBC today reported on a first-ever chemical surgery on an embryo, correcting its DNA. And now, thanks to the legislators in Richmond, we can boast of something too.

Owner move-in regulation expanded and tightened

On July 18, 2017, the new proposed regulations for the owner- and relative-move-in evictions passed in their final version, and yesterday the mayor has signed it into law. This legislation will significantly change the already heavily burdensome restrictions under the San Francisco Rent Ordinance, S.F. Admin. Code, Section 37.9(a)(8). It will become effective on January 1. Let us peek into what the legislators packed for landlords' Christmas sock.

New rules on restricting access to unlawful detainer records

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. Assembly Bill No. 2819, amending CCP § 1161.2 and establishing CCP § 1167.1, effective January 1, 2017.

"Educators" ban on evictions is gone, no longer

[02-14-2018: Court of appeals reversed the judgment];
[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 here].

On September 28, 2016, the San Francisco court adjudged the writ of mandate granted 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 earlier post. Thus, the Court's decision, invalidating the ordinance, was not a surprise to me.

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.

San Francisco Response To More Housing Demand--Less Supply

It may take several years, perhaps decades, before we will witness the end of the ongoing social experiment in San Francisco, where the options for housing development decrease, demand increases, and the legislature tries to hold the pressure by imposing more and more rules, simultaneously trying to prevent the natural flow and exchange of tenants, and talking about the desire for more affordable housing. This is a categorical conflict of contrasting goals, too few dare to acknowledge.

A few of recently published articles illustrate the issue.

New Category Of Tenants In SF - Educators

[02-14-2018 update: Court of appeals reversed the judgment today];
[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 here].

The rules of equality never meant to apply equally to the rule-makers themselves. This had often been the case since the times immemorial, and so observed by many, including Oliver Wendell Holmes.*  And in the context of our times and our local legislature on the issue of housing, examples of unequal treatment of classes of individuals in California are aplenty. Yet at least, for most of the times, you can see a public policy behind the legislatively created exceptions. Not all the times, but often. For a counter-example, when the reasoning is not immediately apparent, see CC § 51.2 and related sections, where the series of statutes provided a right to create senior-only housing (technically, a discrimination by age, albeit for a laudable purpose). In most of those statutes, one county (Riverside) is expressly excluded from these rules, see §§ 51.2(c), 51.3(j), 51.4(c), 51.10(d). I am sure there was some valid reason for that, but I don't know what it is.

Our county of San Francisco has its own rich history of laws treating us differently from elsewhere, especially in the field of housing regulations. Discriminating or differentiating the application of laws to individuals based on their age, disability, or familial status were for many years recognized applications of public policy of supporting those groups, by offering them additional protections, including such protections from evictions. Until now, however, it was more or less applied with care, providing a right for these individuals to claim a "protected" status as a tenant, in the concept of owner- or relative-move-in evictions, and there was a counter-balance for similarly disadvantaged landlords, by recognizing that the moving-in person could be in a similar position of being old or having children.**

Yet now we have a new and unprecedented piece of legislation, discriminating individuals by the source of income: Ordinance 55-16 created a new category, an "Educator," and it will widely apply to almost all non-fault kinds of evictions. Not only it offers no counter-balancing exceptions, but it takes away the ones existed before. I have a feeling that this legislative gem will be soon tested in courts, but for now it is the law, coming into effect on May 23, 2016. I had a chance to speculate on it, when it was introduced, let's now look more closely at what's coming.

Stealthy Amendment to The Rent Ordinance

Some amendments pass while being widely covered in the news, but not this one. It was not even announced in the "What's New" section of the Rent Board. And yet it did pass and will become effective in a couple of weeks, Ordinance 0017-16.
[Update 3-22-16] - The new form is now available for download and the news announcement is published]

This ordinance is a very short piece, but the changes it enacts should not be overlooked; indeed, that is the very danger of unknown changes in legislature, since ignorantia juris non excusat,* an ancient maxim apparently known since Aristotle. If you are like me, and had no idea about the changes coming, you might be interested in this summary below:

Another upside-down amendment to Rent Ordinance is introduced - Campos Bill Re: Educator Evictions

Politics have an inherited dependency on voters. At the core of politics is "making of a common decision for a group of people." [Wikipedia] Not surprisingly, politicians get voters' support by proposing decisions favorited by majority groups of people. The danger of democracy voting itself out was noticed long time ago. A fresh example from far away: Switzerland is going to vote on guaranteeing each citizen a monthly payment of approximately $2,800 fixed income, directly from the government, no effort required. How do you think this proposed measure will survive at the polls? I too think it will pass with a rare rate of success. [I was wrong--Swiss voted against it on June 5]

Example from a recent local past: in September 2015, our supervisors had to vote on the proposed vast package of anti-lanlord measures. Each of the decision-making voting members, a supervisor, is an elected figure, naturally concerned with influencing the electorate of her/his district, so that the majority group votes in support. If tenants constitute a majority of voters, how do you think the elected candidates would vote, especially when the a supervisor's voting is weeks away from her own re-election? Supervisors unanimously (on most points) supported the measure, and it is left to stay with us, at least until being examined by the courts,* even if the supervisors are gone. It did not help some of the sups who were due for re-election. In this city, one quote, even remotely suggesting something against the "eviction crisis" theme, can cost supervisor a seat. And it did. Read the coverage on ballotpedia.org, you will see that the winner for that district was supported by the Tenants' Union. The losing candidate was obviously not.

And turning to the current events, here is a new example of a successful attempt of winning tenant-voters' hearts: Supervisor David Campos (whose bid for reelection is up this year) introduced an amendment to eviction regulations, to limit evictions of anyone related in employment to education. What can be wrong with that? Let's count ways.

Of What Materials May Court Take Judicial Notice?

Request for judicial notice is a widely deployed vehicle for bringing court's attention to certain materials and records. In California, it is regulated by the California Evidence Code ("CEC"), Sections 450-460. It generally defines what requires judicial notice be mandatorily taken of (CEC 451), and what may be judicially noticed at court's discretion (CEC 452, 452.5). The rule is also stated for the contrary: what is not authorized by law, may not be judicially noticed (CEC 450). If the court declines to take judicial notice, the court shall let the parties know about its decision a.s.a.p., and indicate the denial on the record (CEC 456). However, such denial is never final and can be later reversed (CEC 458).

As comprehensive as the judicial notice statutes are written, they can't physically encompass every possible kind of matter litigants may request the court to take judicial notice of. It thus brings the question, what kind of non-obvious materials were previously judicially noticed? This post is a short review of items I was able to identify.

2015 Roundup In CA/SF Real Property Law

2015 was an eventful year, if measured in the scope of the real property legal changes. No stone left unturned. I got to witness it from the front seat myself: for this was the year when I decided to publish my book on the San Francisco eviction notices. It got published in April 2015, and I thought to be done with it for awhile. Little did I know, the changes would demand me to issue seven revisions during next five months, after which a big slew of changes came at once with the Ordinance 171-15, making me to rewrite almost the whole book anew! Version 2.0 went out in December (and yes, with some of the even more recent changes mentioned here, version 2.1 is already in the making).  But enough about me, let's look back and observe, what an enormous year 2015 was for the legal landscape in CA/SF real estate:

New Edition Of The Eviction Book

Writing a law review is unfair business--it does not stay relevant for long. Only in April I had published my first edition of the eviction notice book, and today that version is already obsolete. It lived through updates up to a version 1.7, which I proudly reworked in September, ... and then the Rent Ordinance was amended in so many different spots, I had to re-write most of the chapters. And so the second version was born!  [Amazon link]

Here is what's new:

New Meet & Confer Rules For California Demurrer and some motions - CCP 430.41, 435.5, 439

[Update - - my short 2015 post about demurrers' new meet & confer rule needs to be updated, now to include other motions, also requiring meet & confer step effective January 1, 2018.
CCP § 435.5 covers motions to strike, and CCP § 439 judgments on the pleadings, both with the exceptions similar to ones previously secured for demurrers under 430.41 (unlawful detainer, incarcerated moving party) and adds two more exceptions (anti-SLAPP motions and a motion brought less than 30 days before trial).]