Foster v. Britton (2015) 242 Cal. App. 4th 920: Rent Board Rules and Regulations Survive Preemption Challenge

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Over the years, the Board of Supervisors has amended the Rent Ordinance in various ways to prevent de facto terminations of tenancies. For instance, a “housing service”, like a patio, a parking space or use of a barbecue cannot be severed without the same “just cause” required to end a tenancy generally. The reasoning for this is obvious – a landlord cannot urge their tenants to leave by taking away the features of a tenancy that the tenant has come to rely on.

Similarly, a landlord cannot add to the lease – that is, they cannot create new, unilaterally imposed contract requirements, the violation of which constitutes a material breach of the lease and just cause for eviction. This policy is codified in Section 12.20 of the Rent Board Rules and Regulations.

In Foster v. Britton (2015) 242 Cal. App. 4th 920, a tenant filed an action for declaratory relief against her landlord, seeking a determination of the legal rights under her lease, in response to her landlord unilaterally changing the terms of her tenancy, under Cal. Civ., §827. In response, the landlord took the position that section 827 preempts Section 12.20.

Judge Quidachay of the San Francisco Housing Court ruled in favor of the tenant. In upholding his ruling, the Foster court found authority in the seminal case Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129 for the proposition that “a municipality has authority to limit the substantive grounds for eviction, but it may not interfere with the procedural protections offered by state law. Nothing in Rule 12.20 interferes with the notice procedures required by section 827, or any other procedural protections. Rather, its effect is to regulate the substantive grounds on which a landlord may evict a tenant”.