Putting Your Landlord in the Hot Seat. Too hot to handle?

There's always two sides to every story and, in the case of Landlord and Tenant, this is also true. If you have a claim against your Landlord and the damages (that is, the money that you are seeking) are less than $10,000, you may file a complaint in small claims court provided that you've demanded the damages in writing and given the Landlord some time to contact you to resolve the issues between you.

In small claims court, parties represent themselves and present their cases to the judge along with their evidence. Evidence that can be presented includes emails and texts, photographs, lease agreements, etc. Witnesses can also appear in court to testify on your behalf.  The state of California publishes a great guide to small claims court which is an excellent primer and will help you prepare to file a claim and appear in court. And, the guide is free!  Click on this link to check it out.

But, if you prevail in court (that is, you win), there is a judgment against the other party, and you are awarded damages, the other party may not pay you. To collect, you may need to hire a debt collection agency or file a lien against their property.

However, there is another way to collect, providing that you have a good case and you prevail. You can submit your case to Hot Bench, a nationally syndicated TV show where a panel of three seasoned attorneys, who act as judges, arbitrate your case.

Then again, you may not want to air your differences on national TV but feel more comfortable airing your differences in a small courtroom.  What many people don't realize is that a court complaint becomes a matter of public record so even if your case is decided in a smaller venue than a syndicated TV show, your case is still publicly available and your Landlord Tenant story is told to a greater audience than the small courtroom before you. But, sometimes your story needs to be told.  And, sometimes, your story will help other tenants gather the courage to ask for what is rightfully theirs.

How Do I Know If My Apartment is Covered by Rent Control in Berkeley?

It's easy! Click on this link and enter your property address!

My Landlord Emailed a Notice to Evict Me!

I am increasingly seeing NOTICE clauses in residential lease agreements such as the clauses shown below:

NOTICE.  Any notice required or permitted under this Lease or under state law shall be deemed sufficiently given or served if sent by United States certified mail, return receipt requested, addressed as follows if to Landlord to ________; if to Tenant to:__________.

NOTICE: Each Resident shall provide an email address. Resident acknowledges and represents that this email address below is under his/her control and thus constitutes a valid method of notice for each, every, any and all notices given by Owner/Agent (including, but not limited to: legal notices, notices of charges arising out of lease, notices of any violations, etc.) Resident further represents that any notice sent to any Resident shall and will be immediately relayed to any and all other Residents, possessors, sublessors, assignees, and/or other persons occupying and or visiting the premises. Resident is responsible for checking their email each day and all notices are considered received on the day they were sent by midnight. Resident is responsible for keeping email address up to date and obtaining receipt from Owner/Agent in writing for any changes.

I am even seeing clauses where the cost of serving a legal notice, such as a Notice to Terminate Tenancy or a Notice to Cure or to Quit, are charged to the tenant!

But, are these lease clauses legal? No!

A 3-Day Notice to Terminate Tenancy must be served as follows:

1. The landlord must first attempt to personally serve (e.g. hand to you) the Notice but if you are unavailable for personal service, then
2. The landlord can substitute another person, of “suitable age and discretion,” usually age 18 or older, who is at your home or place of work and then send a copy of the Notice by mail, but if
3. The landlord cannot serve you personally or by substituted service, then s/he can post the Notice on your residential door in a conspicuous place and send a copy of the Notice by mail.

If options 2 or 3 are used, then service is not complete until the day after the Notice has actually been mailed.  See Cal. Code of Civ. Proc. section 1162(1)-(3).

A 30-Day or 60-Day Notice to Terminate Tenancy must be served as follows:

A landlord can use any of the service methods for a 3-Day notice OR can serve the tenant by certified or registered mail with return receipt requested.  See Cal. Civ. Code section 1946 and Cal. Code of Civ. Proc. section 1162.

So, in the first lease clause detailed above, the clause is invalid because it states that “any notice” can be served in the manner described which excludes a 3-Day eviction notice.

And, the second lease clause example affords service by EMAIL which is a patent violation of the law.

So, why is any of this important to you?  If service of one of the Notices described above is illegal, you may have a strong defense to an eviction proceeding!

To be fair, these are unusual lease clauses and the landlords who use them are not the norm. But certain landlords flagrantly insert penalizing, invalid lease clauses to assert their "command" of the property.  Bottom line: review any lease agreement prior to signing the contract and keep a copy of the lease agreement handy. Your landlord also must give you a copy of the executed agreement.  If there is a dispute between you and your landlord, the lease agreement will be central to the argument and will be provided to the Court to describe the rights of each party, rights that may be limited by the law.

Does My Landlord Have a Right to Inspect My Apartment?

Below is an example of an annual inspection notice posted on a tenant’s door by a property management company in the East Bay.

Excerpt of an Actual Annual Inspection Notice

A landlord's right to inspect the property may be described in the lease agreement but a lease clause concerning inspections may be overriden by state law if contradictory to the law. State law sets-out specific rules that Landlords must follow to enter your lease property to conduct a property inspection.

Under Cal. Civ. Code section 1954, an excerpt of which follows: 

(a) A landlord may enter the dwelling unit only in the following cases:

(1)    In case of emergency.

(2)   To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed to services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workers, or contractors or to make an inspection pursuant to subdivision (f) of Section 1950.5.

(3) When the tenant has abandoned or surrendered the premises.

(4) Pursuant to court order.

  

(b) Except in cases [listed above], entry may not be made during other than normal business hours unless the tenant consents to an entry during other than normal business hours at the time of entry.

(c) The landlord may not abuse the right of access or use it to harass the tenant.  

(d) (1) . . . the landlord shall give the tenant reasonable notice in writing of his or her intent to enter and enter only during normal business hours.

The notice shall include the date, approximate time, and purpose of the entry.

The notice may be personally delivered to the tenant, left with someone of a suitable age and discretion at the premises, or, left on, near, or under the usual entry door of the premises in a manner in which a reasonable person would discover the notice.

Twenty-four hours shall be presumed to be reasonable notice in absence of evidence to the contrary.

The right to an annual inspection is not necessarily consistent with Cal. Civ. Code section 1954. However, property management companies routinely inspect rental properties to a) protect themselves from liability, b) to determine if any repairs are necessary, and c) to ensure that the smoke and carbon monoxide detectors are in good working order.

Cal. Health & Safety Code13113.7 requires the installation of smoke detectors and local counties and municipalities may have additional detector requirements. Further, most leases require the tenant to insure that the batteries are tested and replaced regularly.

In the sample inspection notice shown above, the inspection is being done to replace batteries in legally mandated smoke and carbon monoxide detectors and to “measure carbon monoxide levels” where there are gas heaters and appliances.

Thus, while a tenant may object to an annual property inspection and may have a right to do so, it is better to cooperate with the Owner/Agent to insure that any repairs that they believe are required are addressed and the potential liability for replacement batteries in smoke and carbon monoxide detectors is placed on the Owner/Agent’s shoulders. 

Moreover, if your lease agreement has an “inspection” clause understand what you have agreed to before objecting.  And know that even if your lease clause does not discuss annual inspections, objecting to an annual inspection may cause unnecessary friction between landlord and tenant or heighten friction that may already exist. And friction is never good in any relationship, particularly between landlord and tenant.

Giving Thanks: A Personal Perspective

I never expected to be a landlord-tenant attorney. My passion for landlord-tenant law came from my own experience with a charismatic, large property owner in the East Bay.

Having lived in huge metropolitan areas across the U.S., in California, I encountered -- for the first time -- exploding toilets, lack of heat and hot water, illegal dumping, overflowing trash bins, illegal units, illegal utility sharing, abandoned vehicles, and a landlord who stalked and harassed me (and other female tenants.)

This unfortunate experience led to my bringing suit against my landlord in 2013; I represented myself in court and alleged numerous statutory violations, illegal lease clauses, unfair business practices, retaliation, harassment, and more.

My home is my retreat. During the lawsuit, even a good night’s sleep was illusive; I felt unsafe in my apartment. It took 3-months to find a new home, a home which a friend recently described as "zen."

In 2014, after an attorney friend served my trial brief and exhibits on the landlord’s attorneys, a settlement was offered, negotiated, and reached. I had a “slam dunk” case.

Tomorrow is Thanksgiving.

Today, I want to thank my tenant clients for choosing me to represent them.

Today, I want to thank my attorney friends who advised me during my lawsuit, who personally served court documents and provided feedback, and who stood with me in court proceedings. I have much to be grateful for. 

And, if you are a new visitor to this blog and need an attorney “in your corner,” let’s talk.

Happy Thanksgiving!

Go Ahead! Make My Day!

With escalating rents in the Bay area, more Oakland tenants are being forced out of their homes to make way for renters who can afford to pay market rates.  Some of this "force" is coming from landlord harassment which has risen to the attention of Oakland's city council who, in 2014, enacted an ordinance to protect tenants from harassing behavior.

Oakland has a Tenant Protection Ordinance (“TPO”) to deter harassing behaviors by landlords and to give tenants legal recourse in instances where they are subjected to harassing behavior by landlords (O.M.C.8.22.600). (City Council Ordinance No. 13265 C.M.S.)

While most landlords do not, or would not, deliberately harass their tenants, for those that do, a violator can be taken to task by the City Attorney's office or pursued in civil court by the tenant.

Did you know that the TPO Notice must also be posted in an interior common area of your rental building?

The Tenant Protection Ordinance requires Owners to post a notice of the TPO in rental units located in a building with an interior common area such as a laundry room or lobby area. 

The notice must be placed in at least one such common area in the building on the form prescribed by the City Staff.

Just Because I Accepted Partial Rent Payments, Doesn't Mean That I Won't Evict You!

There’s one remaining lease clause to discuss that is usually included in all landlord leases and that’s the “anti-waiver” clause.  Below is an example of an actual lease clause used by a large East Bay property owner.

"The waiver of either party of any breach shall not be construed to be a continuing waiver of any subsequent breach.  The receipt by Owner of the rent with the knowledge of any violation of a covenant or condition hereto shall not be deemed a waiver of such breach.  No waiver by either party of the provisions herein shall be deemed to have been made unless expressed in writing and signed by all parties to this Rental Agreement."

Here’s where the anti-waiver clause may come into play. Let’s say that you had a job loss and could only make a partial payment of rent on time, and the remaining rent in two-weeks. You call your landlord and explain the situation and how you are going to handle rent payments while you are seeking new employment. Your landlord orally agrees, this time only, to accept a partial payment.

During the next month, you are on unemployment. You family is squeezed for cash and can cover some, but not all of your rent, and your savings are quickly being depleted. You pay the rent late and your landlord charges late fees and threatens that, if rent is paid late next month, he or she may begin eviction proceedings.

You argue that your Landlord accepted partial payments of rent last month and no late charges were paid. You are trying your best to pay the rent. Your landlord can point to the anti-waiver clause in the lease agreement and say, “Just because I accepted partial rent payments doesn’t mean that I waived my rights to your failure [e.g. your breach] to pay rent on time.  Look at your lease!  See the waiver clause?”

A breach occurs when a party to the lease agreement fails to uphold one or more covenants (promises) in the lease.  Here, you agreed to pay the rent on time.  Your failure to pay the entire rent on time is a breach.

So, look at your current lease agreement or the one that you plan to sign.  Does it have an anti-waiver clause?  If it does, be careful about breaking any lease promises.

Finally, any lease clause (e.g. paragraph) in which a tenant waives their statutory rights (e.g. rights under California law), is void under Cal. Civ. Code section 1953. 

Lease clauses that contradict Cal. Civ. Code sections 1950.5 (security deposit), 1954 (notice of property inspection by landlord), 1942.1 (right to habitable premises) and 1942.5 (prohibition against landlord retaliation for reporting your landlord to the rent board, building inspection, fire inspection, or to the court) can be overturned in court as illegal lease clauses.

Are Late Fees Legal?

The clause below is an excerpt from an actual lease agreement used in the Bay Area:

LATE CHARGE: If any installment of rent is not received by Landlord in 5 calendar days after date due, Tenant shall pay Landlord an additional sum of $105.00 as a late charge, which shall be deemed additional rent.  Landlord and Tenant agree that this late charge represents a fair and reasonable estimate of the costs that Landlord may incur by reason of Tenant’s late payments. Any late charge shall be paid with the current installment of rent.  Landlord’s acceptance of any late charge shall not constitute a waiver as to any default of Tenant or Tenant  or prevent Landlord from exercising any other rights and remedies under this agreement and as provided by law.

Is this this clause “legal?”

Under Cal. Civil Code § 1671 and case law, a late fee is a liquidated damage awarded for a contract breach. In Hitz v. First Interstate, 38 Cal.App.4th 274 (1995), p. 288, the Court decided that:

"For liquidated damages to be valid under [Cal. Civ. Code § 1671], it must have been 'impracticable or extremely difficult to fix the actual damage.'”

"The amount of liquidated damages 'must represent the result of a reasonable endeavor by the parties to estimate a fair average compensation for any loss that may be sustained.’”

Finally, "absent either of these elements, a liquidated damages provision is void, although breaching parties remain liable for the actual damages resulting from the breach.” [Emphasis added.]

Here, if the $105 late fee described in the lease is arbitrary and was not negotiated between the parties, it may be considered invalid by the Court. As a general rule, a late fee is considered unreasonable if it is more than 5% of the monthly rent. In the lease clause shown above, the monthly rent was $1,900.  Five percent of the monthly rent is $95.00 ($1900 * .05), thus, the Court could consider the late fee somewhat unreasonable since the fee is slightly higher than 5% of the monthly rent. 

By including the sentence, “Landlord and Tenant agree that this late charge represents a fair and reasonable estimate of the costs that Landlord may incur by reason of Tenant’s late payments,” Tenant contractually agrees that the late fee is not a liquidated damage.  This lease clause would be more likely to be upheld in court if the clause also stated that “damages suffered due to a late payment are extremely difficult and impractical to fix." Damages suffered by a Landlord are penalties in increased interest rates for late mortgage payments and administrative costs to collect late rent.  Also see Orozco v.Casimiro, 121 Cal.App.4th Supp. 7 (2004).

Additionally note the first sentence in the lease clause which reads, “. . . Tenant shall pay Landlord an additional sum of $105.00 as a late charge, which shall be deemed additional rent.”

In an eviction proceeding for non-payment of rent, the lawsuit can only detail the actual rent monies owed by the Tenant(s) being evicted for no more than a 12-month period. The rent owed must be detailed to the exact penny in the Notice to Cure or to Quit and in the complaint. Here, if the tenant is late in paying their rent, the late fee is assessed AND considered additional rent. If the tenant is later evicted for non-payment of rent, the Landlord may include late fees as rent owed in the complaint which could invalidate the 3-Day Notice to Pay Rent or Quit and which is contestable. To contest the calculation of the rent owed, the Tenant would also need to attack the lease clause that transmutes late fees into rent.

In example below, the late charge may be void even though the late payment was less than 5% of the monthly rent of $1,350.00 because this clause does not include the phrase stating that the actual damages to the Landlord resulting from the late rent payment were “impracticable or extremely difficult to fix.”

LATE CHARGE.  In the event that any payment required to be paid by Tenant hereunder is not made within three (3) days of when due, Tenant shall pay to Landlord, in addition to such payment or other charges due hereunder, a "late fee" in the amount of Fifty-Five DOLLARS ($55.00).

In the following example, the late fee clause is particularly penalizing but could be challenged since the late fee is more than 5% and may be considered unreasonable by the court even with the phrases noted in bold included in the lease clause.  Here, the rent was $2,350, with a late fee of $141!

LATE CHARGES/INTEREST: Resident acknowledges that late payment of Rent will cause Owner/Agent to incur costs and expenses, the exact amount of such costs being extremely difficult and impractical to fix and ascertain. Therefore, if any installment of Rent due from Resident is not received by Owner/Agent by 5:00 p.m. on 2 days of the month, Resident shall pay to Owner/Agent an additional sum of 6% of Monthly Rent, as a late charge, which shall be deemed additional Rent.  The parties hereby agree that such late charge represents a fair and reasonable estimate of the costs Owner/Agent will incur by reason of late payment by Resident. . .”

If you live in a rent-controlled residence, some municipal law has additional requirements related to lease clauses and late fees.

Finally, if you pay the monthly rent late and fail to pay the late fee, your Landlord can serve with a Notice to Perform Covenant or Quit.  A “covenant” is a promise. By signing a lease with a fairly iron-clad late fee’s clause, you have locked yourself into paying late fees. If you fail to pay these fees and the Landlord exercises his/her rights concerning late fees and serves you with a Notice to pay these fees, pay up or face an eviction proceeding. By testing the waters and not paying these fees, you may find yourself in front of a judge explaining why you signed a lease with a valid late fees clause and failed to pay up. 

Net, net, try to negotiate the late charge itself, before you sign the lease agreement, if it’s more than 5% of the monthly rent and argue that Courts frown upon a late charge that exceeds 5%. Try to pay the rent on time and don’t argue with your Landlord over the late fee, if it is assessed.  If you are on month-to-month lease period all that is required under state law is a 30 to 60-day notice period to terminate your lease. If you are in a rent controlled municipality but are not covered by a “just cause for eviction” municipal code, under state law, no reason is required to terminate your lease at the end of a fixed-term lease or a month-to-month term.  And, remember that in seeking a new rental residence, prospective landlords will probably call your current landlord to determine if you timely paid the rent.  A bad landlord reference may impede your ability to find a new residence. Don't let late fees become a curve ball in your landlord-tenant relationship because the Court may decide in the Landlord's favor if the late fee's clause meets the Hitz standard.  

Leases and Required RAP Notices in Oakland

In Oakland, for all units covered by rent-control, the landlord or the property management company is required to provide the tenant with an Oakland Rent Adjustment Program (RAP) Notice as an Addendum to the lease agreement.  For covered and non-covered units, the landlord is required to post a Notice of the Tenant Protection Ordinance (TPO) in common areas of the building such as the lobby or laundry-room.

Additionally, if there is a Notice to Change the Terms of Tenancy and/or if there is a Notice of Rent Increase, the current RAP Notice is also required to be attached.

A notice of rent increase given without a RAP Notice is invalid, if challenged. Failure to provide tenants with proper notice can extend the time that tenants have to file petitions challenging rent increases.

Because Oakland is enhancing their rent control program, the RAP notices are periodically revised. For example, Oakland enacted a Tenant Protection Ordinance in 2014 to deter harassing behaviors by landlords and to give tenants legal recourse in instances where they are subjected to this harassment. 

In reviewing leases of Oakland tenants, I have discovered that many Owner/Agents attach a RAP notice to the lease but the notice, itself, is outdated, even dating as far back as 2007!

Thus, before signing a new lease, check the date of the RAP notice, if attached, and provide the most recent copy to the landlord if the notice is outdated. And, if no notice is attached, keep a copy of the current RAP notice and file away with your lease. Net, net, landlords are not supposed to "hide the eight ball" (and there are penalties when they do.) The RAP notice is designed to inform you about your legal rights as an Oakland tenant.  On the flip side, some landlords who lease to tenants in exempt units (e.g. units that are not covered by rent control), attach a RAP notice to the lease. This can lead tenants to the incorrect assumption that they are covered by the Oakland Rent Adjustment program. In fact, many tenants who think that are protected by rent control learn that they are not, often when issues between them and the landlord have escalated to threats of eviction.

The current RAP notice, dated 9/23/16, can be found here.

With the recent passage of Measure JJ, the Oakland municipal code will need to be changed; the RAP notice will also require substantial revisions.

To discover whether or not your rental residence in Berkeley is covered by rent control, click here.

For more about San Francisco’s rent control program, click here.

While the City of Richmond and Mountain View residents recently voted for the establishment of rent control, it will take some time to develop the new policies and enact them into municipal law. 

NOTE: With revisions to the Oakland municipal code, there have been substantial changes to the code, the notices, etc. Please check the Oakland Rent Adjustment website for additional information.

The Penalties of Issuing a Bad Check to Your Landlord - Lease Agreements and the Law

A good contract is supposed to reflect “a meeting of the minds.”  However, tenants are often in a lessor bargaining position with the landlord or property management company and the lease (a contractual agreement) usually reflects only one mind – that of the Owner/Agent.  For this reason, I offer lease review services to my clients.

As a rule, all landlord tenant lease agreements include a clause (e.g. a paragraph) concerning bounced checks. Below are examples from actual lease agreements used in the Bay area that require payments of $35 to $50 for each personal check returned for insufficient funds. 

RENT:  If a check is returned for ANY reason, there will be a $35.00 Returned Check Fee. In addition, NO further personal checks will be accepted and ONLY certified funds will be accepted for payment of rent, repairs, or other fees.

RENT: In the event rent, paid timely, is tendered by check which is, for any reason, dishonored by the Tenant’s financial institution, the payment shall then be deemed late and all late charges shall apply. In this event, future payments of rent for a period where a late fee has been assessed are also dishonored by the maker’s financial institution, then an additional fee of $35.00 shall be paid by Resident as reimbursement to the Owner/Agent for administrative expense from processing such a dishonored check.

NOTE that in the example immediately above, in addition to a $35 fee, LATE charges also apply as additional penalty.

RENT: Tenant agrees to pay a charge of Fifty Dollars ($50) for each dishonored check or if the check is returned for having insufficient funds.  After the first occurrence, Tenant shall be permitted to pay next month’s Monthly Rent via personal check.  After the second occurrence, Tenant will not be permitted to pay Monthly Rent via personal check for a period of six (6) months, but will have to pay via cash, cashier’s check or money order.  After the third occurrence, Landlord reserves the right to commence eviction proceedings.

NOTE that in this example, there is a “three strikes” sentence; pass a bad check 3 times and the tenant is faced with an eviction proceeding!

Are these fees actually legal?  The answer is “yes” and “no.”  Let’s review the law.

First, if you wrote a bad check knowing that there were insufficient funds in your bank account AND your intent was to defraud the party you wrote the check out to, you may be in violation of California Penal Code section 476 (a) which is a criminal matter. 

Most tenants who write out a rent check to their landlord do not intend to defraud their landlord; the tenant may simply be short of funds and may hope that the landlord will hold their check until they do have sufficient funds.  Rental property is hard won in the Bay area; tenants value a place to call home but a job loss or other unforeseen circumstances may strain their financial resources.

Second, Cal. Civil Code section 1719 (a)(1) fixes the amount of penalty that can be charged for passing a bad check:

“Notwithstanding any penal sanctions that may apply, any person who passes a check on insufficient funds shall be liable to the payee for the amount of the check and a service charge payable to the payee for an amount not to exceed twenty-five dollars ($25) for the first check passed on insufficient funds and an amount not to exceed thirty-five dollars ($35) for each subsequent check to that payee passed on insufficient funds.”

Cal. Civil Code section 1719 (a)(2) continues:

“Notwithstanding any penal sanctions that may apply, any person who passes a check on insufficient funds shall be liable to the payee for damages equal to treble the amount of the check if a written demand for payment is mailed by certified mail to the person who had passed a check on insufficient funds and the written demand informs this person of (A) the provisions of this section, (B) the amount of the check, and (C) the amount of the service charge payable to the payee…”

So, the moral of the story is simple; don’t write out a check when there are insufficient funds in your bank account.

Keep your rent monies in a savings account and allocate a portion of each paycheck to your rent.  Use a cashier’s check from your bank to pay your rent and keep the check stub in a safe place to prove your rent payment, if necessary.  The bank will take the entire rent amount from your bank account to cover the cashier’s check negating the possibility of insufficient funds.  And, if you issue a personal check for the rent to your landlord and your check bounces, be prepared to pay the penalty detailed in the lease clause.

Bottom line: know the lease terms you have committed to and be proactive.  Life throws us all curve balls on various occasions and having shelter is a basic human need.

Examining Your Lease - An Attorneys' Fee Clause May Be Key to Your Defense

Many tenants, upon finding a new rental residence, conduct a cursory review of the lease agreement and sign the agreement without really knowing what they have committed themselves to.  Having been a corporate business executive equipped with an MBA, I negotiated large-scale contracts with clients and vendors and understand that contract language is key to defining the parameters of a relationship.  

A good tenant’s attorney is, among other things, a good contract attorney for at the heart of the landlord-tenant relationship is the lease agreement.   If you find yourself in a dispute with your landlord, first look to the lease agreement and always keep a copy of the agreement in your paper files and/or stored in the “cloud.”  If you are served with an eviction proceeding, your lease agreement will be attached to the complaint as an Exhibit for review by the judge and jury.

I will be covering a series of blog articles about lease clauses in typical leases used in the Bay area.  As part of my legal services, I offer lease review before a tenant enters into a contractual agreement with a landlord and have been successful negotiating lease provisions with landlord and property management companies.  Tenants must take a proactive stance to entering into lease agreement since unexpected circumstances such as job loss or a roommate who stops paying her share of the rent can escalate into an eviction proceeding. 

ATTORNEYS’ FEES CLAUSE

If you find yourself faced with a lawsuit brought by your landlord against you, check your lease agreement to see if there is an attorneys’ fees clause. Tenants usually lack the financial resources to pay an attorney to represent them, but if there is an attorneys’ fees clause in your lease there may be incentive for an attorney to take your case. 

Below is an example of a lease clause from an actual lease agreement used by a large East Bay property owner:

“ATTORNEYS’ FEES: If any legal action or proceeding (including mediation and arbitration) is brought and arising out of the terms of this Agreement, EXCEPT any unlawful detainer, breach of contract, property damage or related action brought by Owner/Agent, each side will be responsible for their own attorney’s fees and other costs of mediation, arbitration and/or litigation. The attorney’s fees, court fees and any other costs related to any unlawful detainer, breach of contract, property damage or related action brought by Owner/Agent shall be paid by Resident.”

In the example above, you may believe that you will have to pay the landlord’s attorneys’ fees in addition to your own in an eviction proceeding and this is what you are supposed to think.  However, under Cal. Civ. Code section 1717(a), attorneys’ fees are reciprocal. That is, attorneys’ fees will be awarded to the prevailing party. The statute reads:

“In any action on a contract, where the contract specifically provides that attorney's fees and costs, which are incurred to enforce that contract, shall be awarded either to one of the parties or to the prevailing party, then the party who is determined to be the party prevailing on the contract, whether he or she is the party specified in the contract or not, shall be entitled to reasonable attorney's fees in addition to other costs…”

Generally, to prevail, a tenant must win at trial. However, most cases settle before trial and, in a settlement, and the case is dismissed. Generally, then, there is no prevailing party. When there is a settlement, the tenant attorney can attempt to negotiate a payment of her fees during settlement negotiations. Most cases settle before trial, including eviction proceedings.

While the lease clause described above can be overturned by California law, many leases include a attorneys’ fees clause like the one detailed below:

“ATTORNEYS’ FEES: In any legal action or proceeding brought by either party to enforce the terms of this Agreement or relating to the Premises, whether based in contract or tort, the prevailing party shall be entitled to reasonable attorneys’ fees, costs and expenses in connection with this action.”

A newer trend adds a cap to attorneys’ fees and includes a revision to the clause above as follows:

“ATTORNEYS’ FEES: In any legal action or proceeding brought by either party to enforce the terms of this Agreement or relating to the Premises, whether based in contract or tort, the prevailing party shall be entitled to reasonable attorneys’ fees (not to exceed $1,000), costs and expenses in connection with this action.”

In general, the courts will uphold the cap. What is a reasonable attorneys' fee is then determined by the court.

On the flip side, some landlord leases include the following clause:

“ATTORNEYS’ FEES: If any legal action or proceeding is brought by either party to enforce any part of this Agreement, each party shall be responsible for their own attorneys’ fees, court costs, and costs incurred.”

This lease clause reflects the American Rule in which each party to a lawsuit pays his or her own attorneys’ fees. Depending upon the basis of the lawsuit and the tenant’s affirmative defenses to the complaint, other California statutes or federal law may pay for the tenant’s attorneys’ fees. For example, if the tenant claims that the landlord’s eviction was retaliatory, Cal. Civ. Code section 1942.5 awards attorneys’ fees to the prevailing party.

Finally, some landlords exclude an attorneys’ fees clause from the lease altogether believing that the vigor of the tenant’s defense lawyer will be significantly diminished. Tenant's are usually limited in what they can pay an attorney.  Conversely, an attorney is more likely to recover fees from a property owner.

If you are about to enter into a new lease agreement, check the lease for an attorneys’ fees clause.  And, if you are already locked into a lease agreement, check your lease for an attorneys’ fees provision. This provision may be central to your legal defense should you find yourself on the short-end of an eviction proceeding.  

Landlord-tenant cases are usually highly charged; it's frightening to lose one's home. With escalating rents in the Bay area, more tenants are finding a Notice to Terminate Tenancy in their mail or posted on their door.  Finding affordable replacement housing is difficult, time-consuming, and may require much more time than the Landlord is willing to provide the tenant (usually 30 to 60 days.) You need all available ammunition to wage your defense should you exceed the notice period and are served with an eviction proceeding.

Voting Results are In - Some Major Wins (and Losses) for Tenants in the Bay Area

Just as the results are mixed in the General Election, renters had some wins and some losses concerning Bay Area rent control measures. 

For FINAL Results of Rent Control Measures: 

See: http://www.acgov.org/rov/current_election/230/index.htm  (Alameda County)

See: http://results.enr.clarityelections.com/CA/Santa_Clara/64404/182869/Web01/en/summary.html    (Santa Clara County)

See: https://www.shapethefuture.org/elections/results/2016/nov/web/#c-912 (San Mateo County)

See: http://results.enr.clarityelections.com/CA/Contra_Costa/64177/Web02/#/ (Contra Costa County)

MEASURE	DESCRIPTION	VOTING RESULTS
Measure L – Richmond	Establish Rent Control	Yes
Measure M1 – Alameda	Establish Rent Control	No
Measure  V – Mountain View	Rent Stabilization	Yes
Measure Q – San Mateo	Rent Control	No
Measure R – Burlingame	Rent Control	No
Measure JJ – Oakland	Mandated landlord petitions to raise rent above the rent-control allowed percentage. Expands just cause protections from housing built before 1980 to housing built before 1995.	Yes
Measure AA - Berkeley	Raise relocation payment in owner move-in evictions from $4,500 to $15,000 to $20,000	Yes

On the bright side, Oaklanders can be proud to have passed additional rent control protections for tenants and, in Berkeley, relocation payments for owner move-in evictions will increase from the current $4,500 for low-income tenant households to $15,000 to $20,000 for all tenants in a household. 

Also see: http://www.bizjournals.com/sanfrancisco/news/2016/11/09/bay-area-rent-control-measure-roundup-opponents.html

Proactive Protection of Your Security Deposit

Nothing lasts forever although it may seem, at the time, that there are no time limitations to tenancy.  As the market changes and rents escalate in the Bay area, many landlords are enticed to capitalize on higher profits through increased rents.  You may find yourself facing a just cause for eviction through no fault of your own (ex: an owner move-in eviction) or maybe your landlord wants to buy you out and pay you to relocate.

When you have been handed a Notice to Terminate your Tenancy, have you proactively protected all of your interests?  For instance, perhaps you put up the first and last month’s rent on an apartment renting for $1,200 per month as a security deposit. Under state law, you should have $2,400 coming via a security deposit refund. Under municipal law, you may also have earned interest on this amount.

To protect your security deposit, you must document the condition of the property on move-in day.  A state of California guide, “California Tenants: A Guide to Residential Tenants’ and Landlords’Rights and Responsibilities” (July 2012) includes a property inspection form that you can use to record any apartment defects upon move-in. See “Inventory Checklist.” I advise my clients to take digital photographs of the property condition for added assurance. On move-out day, you can use the original Inventory Checklist to record the property condition together with photographs of the property condition.

Under Cal. Civ. Code section 1950.5, your landlord has a legal responsibility to provide you with a security deposit refund and an itemized statement of any deductions within 21 calendar days after you move-out.  Lawful deductions include any unpaid rent, certain cleaning costs, and repairs.

But what if your landlord fails to follow the law? Write a DEMAND LETTER to your landlord following the format in the link to the right (see "Security Deposits.")  If after sending the DEMAND LETTER by postal mail with delivery tracking and by email, and, after one to two weeks of no-response has passed, you can file a complaint in small claims court, pay a small filing fee, and gather your evidence.  Your evidence will include your security deposit receipt together with your demand letter.

It can take 6-months to get a hearing and you will need to represent yourself in court.  The court has self-help centers that can provide guidance concerning the proper procedures.  And, Nolo Press sells well written guides to presenting your case in small claims court.

What many landlords don’t appear to know is that if the judge decides that their retention of your security deposit was made in “bad faith,” the judge can award you up to two times the value of your security deposit in addition to court costs and filing fees. 

So don’t sit on your rights. Protect your interest in your security deposit from the get-go by documenting the property condition immediately upon move-in to your new apartment and do the same when you move-out.  If you show your landlord that you are proactive with your money, this, in itself, may encourage your landlord to follow the law.  

This is not to imply that there aren’t honest landlords who follow the letter and intent of the law; there are many wonderful landlords. But for those landlords who chose to pocket your money, know that you have some legal recourse.

Trail of Tenant Complaints against East Bay Landlord in Oakland

During the last week of October, a 41-unit building under construction in Oakland toppled under a blaze of fire, a fire so powerful that PG&E shut-off utilities to 300 buildings surrounding the area. The cause of the fire is currently under investigation.

This building was being constructed under the direction of one of the East Bay's largest property owners and developers, Athan Magganas. Magganas owns property in Pinnole, Concord, Berkeley, and was involved in developing a retail center in Brentwood, California.

In 2014, Magganas also made headlines for his failure to address a bedbug infestation in his Concord apartment building, a failure that resulted in his being charged with a criminal misdemeanor. Now, Magganas is being sued by former tenants for his alleged failure to provide habitable, safe and sanitary living arrangements in an Oakland rental property. The case goes to trial in May 2017.

Congratulations, Your Rental Property Will be Painted and Appraised

Like many tenants in Oakland, I lease a rent-controlled apartment in an 8-unit building.  I received permission to maintain the garden around the building from the landlord who has benefited from the thriving plants which enhance the building aesthetics. However, I recently arrived home one day to see the garden severely cut-back; it was decimated!  In a conversation with my landlord the next day, I learned that he intended to paint the exterior of the building and that the plants were cut-back to facilitate the work.

We received a 24-hour courtesy notice from the property management company that painting would begin in 2-days.  As a result, I dug up and potted my favorite plants and moved them to the back of the building.  And we waited…

This week, we received 24-hour notice to enter the building units for a building appraisal.  A building is generally appraised either because the property owner is refinancing the mortgage or intends to sell the building. On the heels of this notice, we received notice from the painting company that they would power-wash the building on Monday and begin to paint the building the following day.  The building that I live in is old and it needs a new coat of paint. However, given both the appraisal and the capital improvement, I am waiting to see if my apartment complex will be placed on the market.

Provided that the building is sold, I may also be required to review and sign a Tenant’s Estoppel Certificate.  Having facilitated between landlords and tenants on many issues, I am seeing more references to tenant estoppel certificates in lease agreements.  I will need to check my own 30+ page lease agreement for the same.  Regardless, I can expect the cost of the painting to be passed on to me and to the other tenants in my building via a rent-increase.  In Oakland, 70% of the total cost of the capital improvement (which includes painting) can be divided among the tenants in the form of a rent increase over a 5-year period.  Enjoying a comparatively low-rent for Oakland tenants, I am anticipating a rent increase due to these improvements.

However, if the building is going to be sold, I and the tenants in my building may face similar pressures from the new building owners as detailed in the article, “When Landlords Target Tenants in Rent-Controlled Buildings.”  Because I am a tenant’s advocate, I will be carefully navigating these new waters for I, like the other tenants, find rents unaffordable in Oakland and would be required to move further north or south to enjoy the same type of residence that I enjoy today.  

Before You Find that New Apartment, Speak to Your Landlord about References

Having previously been a corporate business manager, I made decisions about who to hire, promote, and yes, even, who to fire. To protect the organization, I, and other managers like me, were coached on interviewing skills, the policies and procedures of the organization, and how to guard against employee harassment and discrimination. Not only did the corporation want talented employees, they also wanted to protect themselves from liability. An unhappy employee could sue the company for damages which would strain the resources of the corporation. For various reasons, many corporations have developed a policy concerning employment references which they strictly limit to confirming salary, position, and employment dates regardless of whether the employee was a rising star within the firm or a difficult employee who the company decided to let go.

Your landlord is also under some restrictions concerning tenant references. Some landlords and property management companies also limit their tenant references strictly to dates of tenancy and the amount of rent paid to protect themselves from liability.

If you are seeking new housing and have given notice to terminate your tenancy, it is a good idea to confer with your landlord or property management company about what they will agree to communicate to prospective landlords. You can also affirmatively check your credit report and credit score, secure a reference from your current employer, and make corrections to your credit record if there are any glaring errors.

Read the article entitled, "Mum's the Word: Landlord Liability when Providing a Reference for a Former Tenant" to get the landlord's perspective on tenant reference checking. It's an eye-opener and it is always good to understand the other party's position.

Finding Affordable Medical Care

Many people who need affordable legal representation also find themselves in need of affordable health care.  Whether or not you are covered by “ObamaCare,” finding affordable health care options can be challenging, particularly for the uninsured or the under-insured.

YOUR BEST PATH TO GOOD HEALTH:

Your best defense to disease is to eat a good diet, regularly exercise, and get a sufficient amount of sleep. Maintaining good dental care is also key.

VACCINATIONS:

Drug store chains, Target, and Costco among others offer low-cost vaccinations. Click here to see what Walgreens offers as one possible option. (Note: this is not an endorsement of Walgreens over any other chain drug store or mass merchandiser.)

PRESCRIPTION SAVINGS FOR PEOPLE AND PETS:

Costco has a Costco Member Prescription Program which is free for uninsured members and for insured members whose prescriptions are not covered by insurance. Enroll at any Costco pharmacy and receive lower costs for all prescription drugs including medications for your pets!

DENTAL CARE:

University of Pacific San Francisco is a top dental school in the U.S. Student dentists offer dental services under the supervision of the faculty.  Patients can receive everything from dental hygiene care to dental surgery in addition to an interest-free line of credit for certain services.

University of California San Francisco dental school also offers dental services through their highly reputable dental school.

PUBLIC HEALTH CARE FACILITIES:

Click here for a list of public health care facilities in Alameda County. 

Highland Hospital also has a same day health clinic for uninsured, under-insured, and insured patients.

HIV AND STD TESTING:

Click here for a list of testing facilities and call them for associated costs.

PREVENTING HIV INFECTION:

Recently, advertisements on BART invited people age 18 to 65 to participate in clinical trial studies of the new PrEP vaccination. Pre-Exposure Prophylaxis (PrEP) is currently offered in pill form and is taken daily to prevent HIV infection.  To learn more about PrEP, click here.

CARE FOR WOMEN’S ISSUES:

Women can get a gynecological and a breast screening exam at Planned Parenthood. Planned Parenthood charges patients on a sliding scale and can also refer the patient to a radiology service for low-cost mammograms.

The state of California runs the “EveryWoman Counts” program which provides gynecological, breast screening exams, and pap tests at no cost to women earning under a certain income level, who are 40+ years old, are uninsured, and who are not covered by MediCal.

Sutter Health (CPMC) offers an “African-American and Sister-to-Sister Breast Health Program” to women age 40+ if women meet certain criteria.

RADIOLOGY:

NorCal Imaging is a radiology service in the Bay Area that offers discounted radiology services.

CONCLUSION:

While this is not an all inclusive list for Bay Area residents, perhaps it will help start you in the right direction toward finding affordable care.

I am a Tenant. What are my Legal Rights concerning my Companion Animal?

Under state and federal law, a service animal and its owner have various legal rights. The animal is not considered a “pet” and, therefore, a landlord cannot charge pet deposits and pet rent. A service animal is trained to provide medic-aid alerts, mobility assistance and other tasks and is specially-trained. Federal laws covering service animals include the Rehabilitation Act, the Americans with Disability Act (ADA), the Fair Housing Amendments Act (FHAA), and the Air Carrier’s Access Act (ACAA).

A companion or therapy animal provides emotional support for its owner and is classified as an Emotional Support Animal or ESA. Companion animals have less legal rights than service animals.  Pet deposits and pet rent can be charged.  However, if the owner can prove that the owner has an emotional disability and the animal is imperative to the owner’s continued good emotional health, failing to allow the animal residency in a rental residence could be considered a discriminatory act under California’s Fair Employment and Housing Act (FEHA). California’ UNRUH act also extends to emotional support animals. Federal laws covering ESA’s include the FHAA and the ACAA.

The relevant sections of state law (FEHA) can be found under Cal. Govn.  Code sections 12955 et seq. There is an also a precedential case on point dating from 2004.  In Auburn Woods Homeowners Association v. Abdelfatah Elbiari, the condominium association had a no dog policy but cats and birds were allowed.  The Elbiari’s adopted an emotional support dog named “Pooky.” After a few months, the condominium association enforced their no dog policy.  The Elbiari’s appealed the association’s decision and provided letters from their medical doctors which detailed their need for Pooky to provide emotional support.  The association suggested that they replace Pooky with a cat; Mrs. Elbiari was allergic to cats.

In February 2000, the Elbiraris, who filed a complaint with the Department of Fair Employment and Housing, received a favorable decision from the Commission, a decision that was challenged on appeal.  The appellate court decided in favor of the Elbiaris and ruled that they needed the dog as a reasonable accommodation.

If you believe that you need an emotional support animal to lead your life;

• Review your lease clauses carefully concerning pets. 
• Seek a letter written on your doctor’s letterhead describing your medical condition and the doctor’s prescription for an emotional support animal. 
• Ensure that your animal is licensed with the city in which you reside and that it has all the required vaccinations. 
• If the animal is not micro-chipped, visit your local animal shelter or veterinarian to secure a microchip and ensure that the chip is registered with foundanimals.com and with your local shelter.  
• Provide a copy of the medical prescription to your landlord or property management along with a letter from you asking for a reasonable housing accommodation to include your emotional support animal.  

If you have good documentation and a prescription that will stand up in court and are denied a reasonable accommodation for your ESA, a complaint may be made to the California Department of Fair Employment and Housing.  Know that if you make a complaint, things could get “sticky” between yourself and the property owner and increase your emotional stress.  But also know that the long arm of the law protects people who need emotional support animals from unfair discrimination. 

Make Your Voice Heard on November 8 to Protect Tenant's Rights

As the result of the advocacy of a state-wide tenant’s organization and local grass roots movements, the Bay Area made the New York Times on October 14, 2016.  On the 14^th, the Times published an article entitled, “California Today: The Silicon Valley Rent War” written by Mike McPhate.

The article focused on the California Apartment Association (CAA), a trade organization for landlords, which sent a mailer to voters urging them to reject rent control measures on the November ballot and implying that their position was endorsed by the Governor’s Legislative Analyst’s Office (LAO.) The LAO did not endorse the CAA.

Indeed, the CAA has raised slightly over $1 Million dollars to defeat rent control measures in such cities as Mountain View, Burlingame, San Mateo, Richmond, and Alameda.  There are also important rent control measures in Oakland and Berkeley.

Vote “Yes” on:

• Measure L –     Richmond
• Measure M1 –  Alameda
• Measure W –     Mountain View
• Measure Q –     San Mateo
• Measure R –     Burlingame
• Measure JJ –     Oakland
• Measure AA –   Berkeley

Vote “No” on Measure L1 in Alameda.

For a voter’s guide tailored to you, click here.

Rental rates have increased measurably throughout the Bay Area forcing tenants to move out of their homes and relocate to such cities as Vallejo and Pinnole, increasing their commuter time and limiting their options for public transportation. Your vote is critically important in helping to control rental rates and just causes for eviction.

Client Testimonial

"Karyn Erickson is an outstanding attorney and [well-versed] in tenant-landlord law. She treated me with respect and compassion through a very difficult and complex matter with my landlord. She advocated for me every step of the way and I felt that she truly cared for my well-being. She listened, offered superb advice and kept me accountable when I needed it. She is also extremely responsive and personable. It is very clear that justice is Karyn’s primary motivator."

-Oakland Tenant, Grand Lake District

Attorney's comments: Client had lived in her apartment for 6+ years.  In 2016, she received an over 35% rent increase and, on its heels, a 60-day notice to terminate tenancy. Attorney was able to achieve an extension of tenancy, a settlement, and no eviction proceeding was brought against Client. Client secured new housing in Oakland and has settled into her new home.

Protect Oakland Renters - Vote "Yes" on Measure JJ

The following is quoted directly from The Committee to Protect Oakland Renters:

"The Renter Protection Act of 2016 will:

• Require landlords to petition with the Rent Board for rent increases that exceed the Consumer Price Index. 

• Expand Just Cause eviction protections from the current cutoff date of October 1980 to buildings constructed through 1995. 

• Expand the duties and powers of the Rent Board and Rent Adjustment Program to increase accountability and effectiveness in implementing tenant protections.In particular, the measure will require the creation of a "searchable data base", which will give tenant advocacy organizations better access to much needed data. 

After months of negotiations, this Act will also:

• Require annual notices of allowable rent increases 

• Keep the exemption for owner-occupied duplexes and triplexes."

So, if you live in Oakland and are a tenant, be sure to vote for Measure JJ on November 8, 2016. This is an important presidential election and an important measure to protect tenants in Oakland!

Vote to Increase Tenant’s Rights Concerning Owner Move-In Evictions In Berkeley!

On November 8, 2016, voters in Berkeley will have an opportunity to vote their say on ballot measure AA which asks:

Shall an ordinance amending the Rent Stabilization Ordinance to: 

• Prohibit owner move-in evictions of families with children during the academic year;
• Increase the amount of relocation assistance required for owner move-in evictions to $15,000 with additional $5,000 for certain tenants;
• Clarify protections for elderly/disabled tenants;
• Require filing of eviction notices;
• Change the source of interest rates for security deposits; and ,
• Clarify exemptions and penalties to conform with state law, be adopted? 

Were it up to me, I would resoundingly say “Yes” to MeasureAA. Here’s why:

In calendar year 2000, voters enacted a ballot measure to provide low-income tenants relocation assistance of $4,500 per tenant household.  While “tenant household” is not clearly defined in the Berkeley Municipal Code, it is interpreted to include all tenants in the rental unit who have lived in the unit for over one year and who are “low income.” 

Since 2000, the median rental rates have increased by over 160% and moving costs have also escalated. In fact, rents in the East Bay are unaffordable for many renters and require renters with limited incomes to move as far out as Vallejo to find affordable housing.  This impacts renters commute time to work as well as the commuter costs, eliminating any cost-savings resulting from their relocation to a new area.

Recognizing the need for affordable housing and landlord’s fraudulent use of an owner move-in eviction as a just cause for eviction, the Berkeley Rent Stabilization Board recommended a change in the law, campaigned with the city council, and managed to get Measure AA on the November 2016 ballot.

Now, voters in Berkeley not only have an important vote in an historic presidential election, voters will impact renters city-wide in Berkeley.  To read more about the ballot measure, click here.

So, get to the polls on November 8 and make your voice known. Vote for Measure AA!