There is a property in the Fruitvale district of
Oakland where tenants have been forced into signing new and materially
different lease agreements, services previously provided have been removed, and
tenants have received over 30 notices posted on their front doors since Fall 2017. In fact, these tenants
have experienced over four water-shuts, wiring for their existing telephone services
was dismantled, there is a new no pets policy, and their children have been
mandated to play in a nearby park. A vacant apartment was converted to a “luxury
condominium” and advertised for $2,995 rent versus the $900 to $1,400 rent currently collected on existing units.
Certainly, the tenants can petition the Oakland Rent
Adjustment Board for a reduction in housing services provided that the petition is timely made (OMC 8.22.090(3)). Quoting
from a hearing decision on an actual petition (Case No. T16-006),
“The preferred method of evaluating
decreased housing services is consideration of all services provided by an
owner and then determining the percentage by which total services provided by
the owner have decreased because of the lost housing services. Based on the
totality of the circumstances and considering the total bundle of housing
services, the value of the decreased housing services is” then calculated by
the rent board.
So, for instance, if your apartment had no running water for
24-hours, the rent board could calculate a dollar value to the loss of water in
comparison to your total rent as a reduction in housing services. See OMC 8.22.090(3).
But what about waking up to a new notice posted on your front
door every few days? This landlord behavior could fall squarely into the
enumerated types of “illegal” landlord behavior defined in the Oakland tenant
protection ordinance (TPO) (OMC 8.22.640).
In November 2014, Oakland enacted the Tenant Protection
Ordinance (O.M.C. 8.22.600) and, more recently, Berkeley followed suit. Emeryville also enacted new tenant
protections against landlord harassment. The question is, “How much do these
new ordinances actually protect the tenant?”
Implied into every landlord-tenant lease agreement (if not
expressly stated), is a warranty of
quiet enjoyment of the property. What does that mean?
First, the warranty is described by state statute, Cal. Civ.
Code section 1927, as follows:
“An agreement to let upon hire
binds the letter to secure to the hirer the quiet possession of the thing hired
during the term of the hiring, against all persons lawfully claiming the same.”
In plain language, this means that if there is a lease
agreement, the landlord agrees that the tenant will “quietly possess” the
property for the length of the lease. Having a notice posted by the landlord on one’s
front door repeatedly and over a short period of time is interference with the
tenant’s right to quiet possession of the property.
The remedies available to tenants in Oakland (OMC 8.22.670)
for landlord harassment are as follows:
“An aggrieved Tenant may bring a
civil action for injunctive relief or damages, or both, . . . [OR]
The City Attorney may enforce the
TPO through civil action for injunctive relief or damages, or both, for when
the party against whom enforcement is sought has a pattern and practice of
violating the TPO. The City Attorney may also request that an administrative
citation or civil penalty be issued by the City. The City Attorney has the sole
discretion to determine the cases appropriate for enforcement by the City
Attorney's Office.”
The operative language is “civil action.” Does a petition to the rent board constitute
a “civil action” or do these words really mean a “initiating a lawsuit in the
superior court of California?”
Language from a Rent Adjustment Program (RAP) hearing
decision (T16-0655) concerning a landlord’s alleged breach of the warranty of
quiet enjoyment and harassment, the board held that:
“. . .the RAP is an administrative
agency whose power is limited to enforce the provisions of the Rent Adjustment
Ordinance. In the case of Larson v. City and County of San Francisco (2011) 192 Cal.App. 4th 12633, the court examined the authority of
the San Francisco rent board. The court
held that the jurisdiction of administrative agencies is limited to those claims
that are quantifiable in nature. The court specifically held that
the loss of quiet enjoyment is not such a claim. Larson at
p. 1281. Neither are claims of harassment.”
“The Residential Rent and
Relocation Board have also stated that the RAP does not have jurisdiction over
any such claims. See the Housing, Residential Rent and Relocation Board
Decision in Aswad v. Fields,
T03-0377. The tenant’s claims for decreased housing services as they relate to
the covenant of quiet enjoyment and harassment are not claims that can be made
under the Rent Adjustment Ordinance. While these acts may well constitute civil wrongs, these claims must be made
in a court of competent jurisdiction. Then tenant’s claims as they relate to
the covenant of quiet enjoyment and harassment are dismissed.”
Thus, while Oakland tenants can allege violation of the TPO in a
petition to the rent board, the board will dismiss their allegation as being
outside the control of the rent board. Still, if the tenant alleges a violation of the TPO, this makes the
allegation part of public record and puts the landlord on notice to “back off.” But, the petition must be made in
conjunction with something that the rent board does have control over such as
an illegal rent increase or a reduction in housing services.
The Oakland rent board is currently flooded with tenant petitions. In fact, petitions made in November 2017 are now
being processed by the board. It’s estimated that once a petition is processed,
a hearing won’t be scheduled until 6-months later. Once a hearing has been conducted, a hearing decision won't be available until two months after the
hearing. And, to have a hearing, the
tenant must be in possession of the property or the rent board will dismiss the
petition. Faced with constant harassment, many tenants will give up and find
new homes.
For tenants facing similar issues as certain Fruitvale
tenants, acting together as a tenant union provides some balance of power against the landlord. Tenants can also
raise their issues by with meeting with their City Council representatives if not
bringing the issues to the attention of the City Attorney. City officials are inundated with city issues
--persistence here is key.
Finally, there’s a little known requirement in the TPO. Not only must the landlord provide a RAP notice to the tenant at the beginning
of the tenancy, but a TPO notice must be placed in the common area of the rental building (like a laundry room) or this is
a violation of the ordinance. See OMC 8.22.640(E)(2) and this violation can be alleged in a petition to the rent
board.
“If Rental Units subject to this
ordinance are located in a building with an interior common area that all of
the building's Tenants have access to, the Owner must post a notice in at least
one (1) such common area in the building via a form prescribed by the City
staff.”
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