Berkeley Offers Stronger Protection Against Tenant Harassment than Richmond but Municipal Laws are Continually Evolving

In March 2017, the City of Berkeley adopted their Tenant Protection Ordinance. Much of the wording appears to be patterned after the San Francisco and Oakland harassment or protection ordinances. However, Berkeley places additional emphasis on landlord reports to ICE (Immigration and Customs Enforcement) and adds a section on a landlord's exploitation on a tenant's disability as well as wording relating to human trafficking.

In Berkeley, for units covered by rent control and/or just cause eviction ordinance, landlords are required to issue a notice at the beginning of tenancy that began after April 2017 and this notice must be included with any eviction notice.

Richmond residents are newer to rent control. Rent control was enacted on December 30, 2016. A small section of the municipal code speaks to homeowner and tenant protection but the code is significantly "thin" compared to municipalities with more established rent control ordinances. To learn more about Richmond's rent control program, the City offers workshops for landlords and for tenants and they make their presentations available via the following link.

Below is a comparison of the two ordinances.

BERKELEY	RICHMOND
B.M.C.  Sec. 13.79.060 Tenant Protections	R.M.C. sections 11.100.040 and 11.100.050 Tenant and Homeowner Protections
No Landlord of any Rental Unit located in the City of Berkeley, shall do any of the following in BAD FAITH	No landlord shall take action to terminate any tenancy, including but limited to making a demand for possession of a rental unit, threatening to terminate a tenancy verbally or in writing, serving any notice to quit or other eviction notice, or bringing any action to recover possession or be granted recovery of possession of a rental unit unless [there is a just cause for eviction.] R.M.C. 11.100.050
Influence or attempt to influence a tenant to vacate rental housing through fraud, intimidation, or coercion or through unauthorized physical acts	Homeowner Protections: Home-ownership is of great importance to the residents of the City of Richmond. The following protections for homeowners shall be part of this ordinance: 1) temporary rentals allowed; 2) small, second units unregulated. A unit that is lawful and in compliance with the Small Second Unit Ordinance of the R.M.C. sec. 15.04.810 will be exempt from this Chapter if the owner is the Primary Resident of the first, larger single-family home. 3) Renting of a room unregulated. . .where the tenant shares a bathroom or kitchen with the homeowner shall be exempt from this Chapter if the home is the primary residence of the homeowner. R.M.C. sec. 11.100.040
Threaten by use of fraud, intimidation, or coercion to terminate a tenancy, to recover possession of a Rental Unit, or to evict a Tenant from a Rental Unit. Such threats shall include threatening to report any Tenant, occupant, or guest of any Tenant or occupant, to U.S. Immigration and Customs Enforcement
Reduce, interrupt, or withhold any services or amenities provided to the Tenant pursuant to rental agreement, custom, or law. Such services include, but are not limited to, provision of the quiet use and enjoyment of the Rental Unit.
Interfere with a tenant’s right to privacy. Unlawful interference with a Tenant’s right to privacy shall include, but is not limited to, requesting information regarding citizenship or residency status or social security number of any Tenant or member of the Tenant’s family or household, occupant, or guest of any Tenant, except for the purpose of obtaining information for the qualifications for a tenancy prior to the inception of tenancy. . .
Abuse the owner’s right of access into a rental housing unit as established and limited by Cal. Civ. Code sec. 1954
Abuse, exploit, discriminate, or take advantage of, any actual or perceived disability, trait or characteristic of any Tenant, including, but not limited to, the Tenant’s participation in any section 8, housing choice voucher, or other subsidized housing program.
Fail to perform repairs or threaten to do so or fail to exercise due diligence in completing repairs and maintenance
Threaten to not perform repairs and maintenance required by contract, custom, or law, or threaten to do so
Refuse to accept or acknowledge receipt of a tenant’s rent, or to promptly deposit a Tenant’s rent payment, or to promptly provide a receipt to a tenant upon request, except as such refusal may be permitted by state law after a notice to quit has been served and the time period for performance pursuant to the notice has expired.
Offer payments to a tenant to vacate without providing notice to the Tenant of his or her rights under this Chapter, using the from prescribe by City staff, however, this shall not prohibit offers made in pending unlawful detainer actions. [See B.M.C. 13.79.050 Tenant Buyout Ordinance.]
Engage any Tenant in any form of human trafficking as defined by California Penal Code section 236.1, as a condition of that Tenant’s continued occupancy of a Rental Unit.

Oakland Landlords who live in their duplexes and triplexes can’t raise the rent higher than 3.4 percent for the next six months

See article published by the East Bay News on Feb. 15, 2019.

For a copy of the City Council report related to these matters, access "View Report" and the "Supplemental Report," click here and download the relevant reports.

Strong Measures Against Tenant Harassment in San Francisco and Oakland

In November 2008, San Francisco voters approved Proposition M to amend the City's Rent Ordinance (S.F. Admin. Code, sec. 37.1 et seq.) The proposition modified the definition of housing services to include the "quiet enjoyment of the premises, without harassment by the landlord as provided in Section 10B." Section 37.10B was expanded to include 15 prohibited acts of harassment and to allow tenants to file a petition with the Rent Board for any conduct violating this Section and request a rent reduction.

Larson et al challenged these modifications in a civil law suit alleging that the expanded definition of a decrease in housing services violated the judicial powers clause of the Cal. Const. art. VI, sec. 1) and infringed on free speech rights, and that the additional mandatory, tenant-only cost and attorney fees provision violated equal protection rights.

The court struck the words "with ulterior motive or without honest intent" in the beginning phrase of the ordinance, upheld the decrease in housing services definition, and invalidated the cost and attorney fee provision. The plaintiff appealed the adverse part of the ruling. Pursuant to the appeal, the court ruled that if harassment was found under 37.01B(a)(4) through (15), that the Rent Board could not order rent reductions since, to do so, would impinge on the judicial power of the courts and allow the Rent Board to award damages for emotional distress. The court also struck 37.10B(a)(7) and 37.10B(c)(6).

In November 2014, Oakland's City Council passed a Tenant Protection Ordinance, in part, due to the "imbalance of bargaining power between landlords and tenants, which has resulted in many tenants, especially those not in rent controlled units, being unwilling or unable to assert their legal rights, which is detrimental to the health, safety, and general welfare of Oakland because the stability, security and quality of housing opportunities are reduced." The Rent Board requires landlords to issue a RAP (rental assistance program) notice to new tenants of rent-controlled residences and a TPO (tenant protection ordinance) notice is also supposed to be posted in the common area of residential rental units.

In both jurisdictions, should a tenant allege harassment by the landlord, their remedy is in civil court. The rent boards do not have the authority to decide a harassment issue but they can -- and do - define tenant harassment through their municipal code. Below is a cross-comparison of the Oakland and San Francisco tenant harassment ordinances. And, while certain sections were struck down by the courts in San Francisco, Oakland's similar wording has not yet faced a challenge, at least to this writer's knowledge.

OAKLAND	SAN FRANCISCO
TPO applies to all rental units where there is a lease agreement except nonprofit owned rental housing, rental units in a hospital, skilled nursing facility, or health facility, rental unit in a residential property that is a triplex and where one of the units is occupied by the owner, a rental unit in a newly constructed building
No owner or owner’s agent, contractor, subcontractor, or employee shall do any of the following in BAD FAITH	No landlord, and no agent, contractor, subcontractor, or employee of the landlord shall do any of the following in BAD FAITH with ulterior motive or without honest intent
Fail to perform repairs or threaten to do so	Fail to perform repairs and maintenance required by contract and/or law
Fail to exercise due diligence in completing repairs and maintenance	Fail to exercise due diligence in completing repairs and maintenance
Abuse the owner’s right of access into a rental housing unit	Abuse the owner’s right of access into a rental housing unit
Remove tenant’s personal property, furnishings, or other items without the prior written consent of the tenant unless when done pursuant to Cal. Civ. Code sec. 1980 et seq.
Influence or attempt to influence a tenant to vacate rental housing through fraud, intimidation, or coercion which includes threatening to report a tenant to the U.S. Immigration and Customs Enforcement	Influence or attempt to influence a tenant to vacate rental housing through fraud, intimidation, or coercion
Offer payments to a tenant to vacate more than once in six (6) months after tenant has notified the owner in writing about their desire not to receive further offers of payment to vacate	Offer payments to a tenant to vacate after tenant has notified the owner in writing that they no longer wish to receive offers of payments to vacate. [This clause was stricken pursuant to Larson v. City and Co. of San Francisco, (2011) 192 Cal. App. 4th 1263.]
Attempt to coerce a tenant to vacate with offer(s) of payments to vacate which are accompanied by threats or intimidation	Attempt to coerce a tenant to vacate with offer(s) of payments to vacate which are accompanied by threats or intimidation
Threaten the tenant, by word or gesture, with physical harm	Threaten the tenant, by word or gesture, with physical harm
Substantially and directly interfere with a tenant’s right to quiet use and enjoyment of the rental unit	Interfere with a tenant’s right to quiet use and enjoyment of the rental unit pursuant to California law
Refuse to accept or acknowledge receipt of a tenant’s lawful rent payment (with one exception)	Refuse to accept or acknowledge receipt of a tenant’s lawful rent payment
Refuse to cash a rent check for over 30-days unless a written receipt for payment has been provided to the tenant (with an exception)	Refuse to cash a rent check for over 30-days
Interfere with a tenant’s right to privacy	Interfere with a tenant’s right to privacy
Request information that violates a tenant’s right to privacy (see exceptions)	Request information that violates a tenant’s right to privacy (see exceptions)
Other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause, or are likely to cause, or are intended to cause a tenant to vacate the rental unit or waive any rights related to that unit	Other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause, or are likely to cause, or are intended to cause a tenant to vacate the rental unit or waive any rights related to that unit
Remove a housing service for the purpose of causing a tenant to vacate the rental unit such as a parking space or garage	Interrupt, terminate or fail to provide housing services required by contract or law

San Francisco Looks Askance at Exhorbitant Rent Increases

Although single-family homes and condominiums built after 1979 may be exempt from rent-control (see San Francisco rent ordinance 37.2(r)(7)), they are covered by the just cause eviction ordinance (sec. 37.9) which provides several enumerated reasons to evict a tenant.

To thwart just cause and stimulate a tenant to move, landlords sometimes raised the rent to exorbitant rates, since, under state law, there is no cap on residential rental rates. But no more! Beginning February 25, 2019, an amendment to San Francisco rent ordinance sections 37.10A and 37.10B, makes this activity illegal as follows:

Sec. 37.10(A)(i): “It shall be unlawful for a landlord to endeavor to recover possession of a rental unit as defined in Sec. 37.2(r)(7) by means of a rent increase that is imposed in bad faith with an intent to defraud, intimidate, or coerce the tenant into vacating the rental unit in circumvention of Section 37.9(a), 37.9(A), 37.9(B), or 37.9(C). Evidence of bad faith may include but is not limited to the following:

1) The rent increase was substantially in excess of market rates for comparable units;

2) The rent increase was within six months after an attempt to recover possession of the unit; and

3) Such other factors as a court or the Rent Board may deem relevant.”

As guided by Sec. 37.10B(a)(5), “No landlord, and no agent, contractor, subcontractor or employee of the landlord, shall do any of the following in bad faith or with ulterior motive or without honest intent:"

"Influence or attempt to influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion; for example and without limitation, by endeavoring to recover possession of a rental unit as defined in Section 37.2(r)(7) by means of a rent increase that is imposed with an intent to defraud, intimidate, or coerce the tenant into vacating the rental unit in circumvention of Section 37.9(a), 27.9A, 37.9B, or 37.9C, in which case evidence of bad faith may include but is not limited to the following:

1) The rent increase was substantially in excess of market rates for comparable units;

2) The rent increase was within six months after an attempt to recover possession of the unit; and

3) Such other factors as a court or the Rent Board may deem relevant.”

Section 37.10A is entitled the “Misdemeanors, and Other Enforcement Provisions,” while Section 27.10B is called the “Tenant Harassment” ordinance.

If you rent an apartment in San Francisco that is exempt from rent control but covered by San Francisco's just cause eviction ordinance, and if you received an excessive rent increase, keep this information in mind. You may have a legal basis to contest the rent increase if the rent increase was done in bad faith.

Hayward City Council Expands Just-Cause Eviction Protections

An excerpt of the news release is quoted below. For the full press release, click here.

The unanimous 7-0 Council vote had the effect of extending to an estimated total of 22,237 units eviction protections previously applied to a more limited number of rental homes—approximately 14,900 units constructed prior to passage of the City’s 1979 Residential Rent Stabilization Ordinance (RRSO).

Under the ordinance, landlords retain the ability to evict tenants for failure to pay rent, violation of other terms of a lease, and for other reasons provided for under law. Such other allowable reasons include:

• The tenant has substantially damaged the property and will not agree to repair or pay for repairs.

• The tenant refused to sign a new lease that is identical to the old one (when the old one expires).

• The tenant has continued to bother other tenants and neighbors after being told to stop.

• The tenant will not let the landlord into the building, even with written notice.

• The landlord wants to perform repairs to the unit to meet the City’s building standards that cannot be completed with the tenant living there. Once work is complete, the tenant must be offered the unit first.

• The landlord wants to demolish the unit.

• The landlord wants to move into the unit or wants to allow certain family members to move in. This is not allowed if there is a similar unit on the property that is vacant and available.

• The landlord wants to move into the unit and the lease allows this.

• The tenant has used or allowed the use of the unit for the manufacture, sale, distribution, possession, or use of illegal drugs.

• The tenant has continued to break the rule of the property.

• The landlord fires the tenant, and housing was part of the employ’s pay.

• The tenant threatened to kill or hurt any person on the premises. A report must be filed with the Hayward Police Department.

Additionally, under state law, landlords may evict a tenant from a residence in order to sell the property or otherwise permanently get out of the business of renting the home pursuant to certain conditions.

The new just-cause eviction legislation does not apply to hotels and motels, hospitals, transitional housing, skilled nursing facilities and shared housing where the property owner lives in the unit.