Justin Goodman was featured in the Legal Q&A for the September 2017 issue of SF Apartment Magazine – the official publication of the San Francisco Apartment Association.
Justin discussed the ability of a landlord to prohibit tenants from posting signs that had the effect of driving away prospective renters, in the context of San Francisco’s Planning Code and the First Amendment.
SFAA is dedicated to educating, advocating for, and supporting the rental housing community so that its members operate ethically, fairly, and profitably. SFAA’s is a trade association whose main focus is to support rental owners by offering a wide variety of benefits that address all aspects of rental housing industry.
AB 291 now imposes broad restrictions against threats by landlords (and attorneys) relating to immigration status. In addition to now making it lawful to “Threaten to disclose information regarding or relating to the immigration or citizenship status of a tenant, occupant, or other person known to the landlord to be associated with a tenant or occupant”, the new law also provides for defenses to unlawful detainer actions where the tenant can establish that the landlord filed the action because of the tenants immigration status.
In fact, a tenant may establish this by showing that the action is based on any of the following:
(A) The failure at any time of a previously approved tenant or occupant to provide a valid social security number.
(B) The failure at any time of a previously approved tenant or occupant to provide information required to obtain a consumer credit report under Section 1785.11 of the Civil Code.
(C) The failure at any time of a previously approved tenant or occupant to provide a form of identification deemed acceptable by the landlord.
As some of these may innocuously relate to the landlord’s ability to verify the creditworthiness of their renters, both property managers and practitioners will want to be cautious in crafting three day notices as unlawful detainer complaints.
The full text of AB 291 is available here.
“Rosemary Court’s allegations that Parsi moved out of the premises and lived elsewhere for a time do not constitute termination under the lease or any law that we are aware of and, therefore, do not support Rosemary Court’s legal conclusion that Parsi terminated her leasehold interest. Rosemary Court relied on Walker’s purportedly unauthorized assignment of the lease to Parsi for its unlawful detainer cause of action, but regardless of any such assignment, by Rosemary Court’s own allegations, including the terms of the lease incorporated into the complaint by reference, Parsi was a colessee of a month-to-month tenancy who had moved out of the premises for a time, which remained occupied by Walker, and then moved back into the premises around the time that Walker moved out. These allegations establish only that Parsi was a colessee of the premises with an ongoing right to a month-to-month tenancy. Therefore, Rosemary Court did not state an unlawful detainer cause of action against Parsi.”
In Rosemary Court Properties, LLC v. Walker (unpublished), the First District Court of Appeal reversed the appellate division of the superior court decision upholding a default judgment in an unlawful detainer case against a co-lessee (Parsi) who, while temporarily out of occupancy, had resumed occupancy prior to the attempted termination of the tenancy. In so doing, the Court determined that the “gatekeeper duty” of the trial court required that it not enter a default judgment where the complaint is insufficient to state a cause of action.
Continue reading Rosemary Court Properties, LLC v. Walker (Unpublished) – “Gatekeeper Duty” Justifies Reversal of Unlawful Detainer Judgment upon Failure To State Cause of Action
[UPDATE: This case was certified for publication on 10/26/17.]
Infamous landlord Anne Kihagi tested the limits of Ellis Act re-rental constraints, as illustrated in the latest appellate decision chronicling her exploits, City of West Hollywood v. Kihagi. While withdrawing an 8-unit, rent controlled property in West Hollywood from the rental market, Kihagi harassed one of the tenants, prompting the City of West Hollywood to prosecute, leading to a settlement agreement governing the application of the Ellis Act.
For purposes of the Ellis Act, the property featured several “classes” of rental units: four were unoccupied, four were occupied, and one of the occupied units claimed an extension of the withdrawal date (as tenants who are disabled or at least 62 are entitled to do). The Ellis Act uses a floating definition for the “date of withdrawal”, which could be as early as the landlord files the notice of intent or as late as the extended termination of tenancy. Further, while the Ellis Act imposes vacancy control constraints for five years and requires a “first right of refusal” for ten, these restrictions do not appear to apply to rental units that are unoccupied at the time of withdrawal. (For those, arguably only a two year re-rental restriction applies – or perhaps even no restrictions at all.)
Despite entering a settlement agreement with potentially more restrictive terms, Kihagi re-rented units after the five-year vacancy control restrictions would have expired under the Ellis Act. The Court of Appeal first noted that landlords’ agreements to waive rights under the Ellis Act are void, citing Embassy LLC v. City of Santa Monica (2010) 185 Cal.App.4th 771, 777, but ultimately determined that Kihagi had re-rented outside of the Ellis Act constraints.
September 15th is the first deadline for “Tier One” property owners to submit permit applications for work under the City’s mandatory seismic retrofit program – a 2013 ordinance that requires owners of certain multiunit wood-frame buildings with “soft stories” (i.e., open space first floors that are weaker and more flexible than the stories above) to reinforce the structure to increase resiliency in the event of an earthquake.
The SF Examiner reports that, “Failure to comply with the Sept. 15 deadline will come with penalties. For instance, The City would post an ‘Earthquake Warning’ placard on the property and issue a notice of violations. After the 30-day notice, The City can assess monetary penalties along with putting a lien on the property”.
Property owners can search the Department of Building Inspection website to determine the compliance tier and associated deadline for their buildings.