What Rights Do Tenants and Landlords Have Concerning Open Houses?

Recently, a tenant asked me about her rights vis-a-vis her landlord. Her landlord is selling the property and his real estate agent wanted to hold periodic open houses to show the property. Of the four-unit building, the agent thought that the tenant’s apartment would be the best representation of the property and help attract buyers.

So, what about the inconvenience to the tenant? 

An excerpt of Cal. Civ. Code sec. 1954 provides some guidance:

      "(a) A landlord may enter the dwelling unit...:

             (2) To make necessary or agreed repairs, decorations, alterations or improvements, supply necessary or agreed 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...

       (d)  (2)  If the purpose of the entry is to exhibit the dwelling unit to prospective or actual purchasers, the notice may be given orally, in person or by telephone, if the landlord or his or her agent has notified the tenant in writing within 120 days of the oral notice that the property is for sale and that the landlord or agent may contact the tenant orally for the purpose described above. Twenty-four hours is presumed reasonable notice in the absence of evidence to the contrary…"

Amended by Stats. 2016, Ch. 623, Sec. 1. Effective January 1, 2017.

The rights of landlords and tenants was recently clarified by Dromy v. Lukovsky (2013) 219 Cal.App.4th 278 in which a tenant protested an open house of a condominium although the tenant did allow private showings at pre-arranged times.

The court decided in Dromy's favor and stated that “Dromy's designated licensed real estate agent shall be entitled to hold two open houses per month’ and that open houses "may be held on weekend days between 1:00 p.m. and 4:30 p.m." Further, Dromy's designated agent "shall be present...during any and all such open houses." Finally, the judgment stated that Dromy's designated agent "shall give 10 days advance email notice to [tenant] of proposed weekend open house dates, and [the tenant] shall respond within 48 hours of receipt of same acknowledging the proposed dates or providing alternative weekend dates."

Open houses are standard practice in property sales. Permission to hold an open house is a reasonable request and consistent with state law. There may also be additional municipal laws related to private showings and open houses in rent-control jurisdictions consistent with the court's opinion in Dromy.

Tenant-landlord relationships are a balance of competing interests. While the tenant has a legal right to quiet enjoyment of the property, the landlord has a right to sell the property. The best scenario is where the tenant and landlord “sit down to the table” and work out an mutually agreeable arrangement. And, if there are multiple tenant units, the burden of private showings and/or open houses should be negotiated and, ideally, shared across all tenant households.

Getting to Know You

To get to know me better, check out my "hot-off-the-press" website which is linked below:

Law Office of Karyn L. Erickson

Berkeley's 2017 Guide to Rent Control and Recap of New State Laws Affecting Tenants

Tenants and landlords alike may find Berkeley's annual guide to rent control helpful.  For the 2017 guide, click here.

Berkeley also has a nice recap of new state law affecting landlords and tenants. Click here. Note that visible mold, as documented by a government official such as a code enforcement or health inspection officer, is now considered a substandard housing condition. 

Oakland's Rent-Adjustment Program and New Notice Requirements

Recently, a blog reader commented on my 2016 blog post concerning required rent-control notices in Oakland.  This reader’s comments were salient in that, since the passage of Measure JJ in the November 2016 election, the City of Oakland has made numerous changes to the municipal code, rent-control regulations, and to required notices. 

First, as it relates to required notices, under Oakland Municipal Code (O.M.C.) section 8.22.050, a owner of covered units must provide the following notices to tenants:

•         Notice at Commencement of Tenancy (also called “RAP Notice”); and
•          Change in Terms of Tenancy or Rent Increase.

Note that “covered units” is specifically referenced. What, then, is a covered unit?  A covered unit is “covered” by rent-control and is not exempt from the ordinance.  

Units that are exempt (or not covered) from rent-control are described in O.M.C. 8.22.030 and include duplexes or triplexes in which one of the units is owner-occupied. In addition, “Dwelling units which were newly constructed and received a certificate of occupancy on or after December 1, 1995” are also exempt. This date was recently extended from January 1, 1983. There are other exemptions which can be explored by examining the municipal code.

For covered units, there are penalties if a landlord fails to provide the notices mentioned above and includes (but is not limited to) forfeiture of a rent increase for 6-months if the rent increase is challenged by the tenant. Moreover, as of 9/21/16, notices are available in English, Spanish, and Chinese; which language is used depends upon the language in which the lease was negotiated.  All notices can be found here.

One notice that is universally required is the Tenant Protection Ordinance (TPO) which was enacted in in 2014.  For covered units, the “Notice at Commencement of Tenancy” includes the required reference to the TPO.  For non-covered units, a “Notice to Oakland of New Tenant Protection Ordinance” is required to be posted in an interior common area of the rental building or, if no common area, directly to the tenants. The remedy for violation of the TPO rests with the courts.

• ·       Common Area Notice to Tenants of the Tenant Protection Ordinance.

Note, that there are exemptions to the TPO which are different from the exemptions under the Rent Adjustment Program.  See: O.M.C. 8.22.630.

       “The TPO shall apply to all Rental Units where there is a Rental Agreement between           an Owner and one or more Tenants, unless exempted herein. The application of the           TPO includes units that may not be covered under the Rent Adjustment Ordinance             (O.M.C. 8.22.100, et seq.) or the Just Cause for Eviction Ordinance 
        (O.M.C. 8.22.300  et seq.)"  

Look to the code enacted on April 10, 2017. 

And, there is a new notice required. This notice is:

 ·         Notice of Changes to the Rent Adjustment Program.

Numerous changes to the Oakland Rent Adjustment Program and TPO have been made in response to voter’s approval of Measure JJ, the Ghostship fire, public commentary, and advocacy groups. Net, net, these changes further strengthen the RAP program for tenants and afford them more protections. Net, net, I'm proud to be a citizen of Oakland.

Don't Be an Ostrich!

Sometimes tenants, when faced with an eviction complaint, “hide their heads in the sand” and fail to answer the complaint. Their lack of response paves the way for a landlord to secure a default judgment against them. The tenant can attempt to “set aside the default judgment” with a motion but this generally requires attorney intervention.

Or, if the tenant is later served with a Writ of Possession by the Sheriff and given 5-days to relocate (or else!), the tenant can ask the court for a “Stay of Execution.” If granted by the court, a stay provides the tenant with a little extra time to pack up their belongings and move before the Sheriff revisits the property and walks the tenant out the door.  A Stay can be applied for even if the tenant fights the lawsuit and loses the case.

A stay can be made on an ex parte basis, that is, the tenant can ask for a hearing with the presiding judge without the landlord’s agreement to the hearing provided that the landlord or his/her attorney is given 24-hours advance notice of the hearing. Generally, this notice is made by consulting the opposing party by telephone. (It’s a good idea to also provide notice of the hearing by FAX and take the FAX transmittal to the court as further evidence that the landlord was given notice.)

At the hearing, the tenant can offer to “pay to stay,” and provide the court with 10 to 40-days of rent, at the per diem rent amount stated in the eviction complaint, to secure more time to find new housing. However, the tenant must show that immediate relocation would be a greater hardship to the tenant than to the landlord. The tenant must also be prepared to argue why they should be granted a stay if the landlord or his/her attorney argues that the tenant must go, and go now.

Net, net, when faced with a legal proceeding, don’t be an ostrich. Although it is difficult to do, face the legal proceeding head-on and preferably with an attorney by your side. If you can’t afford an attorney, check out the resources on the side-bar of this blog and, if all else fails, purchase a NOLO guide to help answer the complaint and represent yourself at the pre-trial and trial hearing. Finally, most landlords are open to settling with the tenant; it’s more cost-effective to work out an agreement with the tenant than conducting an eviction proceeding and considerably less stressful on both parties.

Foreclosures and Tenants Rights

The National Housing Law Project wrote that during the 2008 foreclosure crisis, “there [were] estimates that nationwide as many as 40% of the families that face eviction due to foreclosure are renters…The consequences for tenants residing in properties that have been foreclosed upon are often dramatic and may include lease termination, eviction without proper notice or a reason other than the unit has been foreclosed upon, the loss of the tenant’s security deposit, deterioration of property conditions and utility shutoffs. Tenants also face costs of relocation, finding a new home, possible loss of a Section 8 voucher or other rental assistance, an eviction complaint which may affect their credit or the ability to lease another unit, and possible disruption of education, employment, medical treatment and social support networks.”

Congress responded to the crisis by enacting The Protecting Tenants at Foreclosure Act (PTFA), which was effective May 20, 2009 and included in the Dodd-Frank regulations. The PTFA expired in 2014, but Congress extended these protections to 2015. In February 2017, President Trump signed an executive order to ease Dodd-Frank regulations. We will have to wait and see how these federal regulations are revised.

California took the lead to protect homeowners and tenants by enacting The California Homeowner Bill of Rights (CA HBOR) on January 1, 2013 to ensure that there were guarantees of basic fairness and transparency during the foreclosure process. This law requires buyers of foreclosed homes to give tenants at least 90 days before beginning eviction proceedings. Moreover, just cause eviction ordinances may provide added protections to tenants. If the tenant had a fixed-term lease prior to transfer of title at the foreclosure sale, the new owner must honor the lease under most conditions.

The National Housing Law Project is based in San Francisco and offers free resources to non-profits and private attorneys who assist homeowners and tenants in foreclosure, fellowships to law students and new lawyers, and pro bono opportunities for attorneys.

Berkeley Brings Tenants and Landlords Up to Speed

Do you want to know more about tenant's and landlord's rights in Berkeley?

Attend one of the many seminars offered -- for free - from the Berkeley Rent Stabilization Board.  For instance, the Board is offering the following seminar:

Special Workshop for Long-Term Rent Controlled Tenants

Tuesday, June 13th 6:00 p.m. - 7:30 p.m. 
Location: the Berkeley Central Library, 2090 Kittredge St., 3rd Floor, Community Room

"Rent stabilization and eviction protections provide housing stability and help maintain social and economic diversity in Berkeley. Rents have skyrocketed in the last few years; in some cases 20-40% above prior market rents. As a result, we have seen several cases in which long-term tenants in Berkeley are much more vulnerable to being evicted or “encouraged” to leave through harassment or neglect- so rents can be reset to current market. This workshop is designed to give long-term tenants a clear understanding of their rights and responsibilities under the Berkeley Rent Ordinance, provide tenants with basic tips on how to avoid exposing themselves to pre-textual evictions, how to document and respond to harassment, habitability problems or attempts to constructively evict, what legal resources are available outside of the Rent Board, and how to avoid losing their right to their stabilized rent. Participants will receive a free tenant packet and other important information."

To learn more about the seminars offered, click here and subscribe to the Berkeley email list so that you are kept informed about all the seminars offered.