A published court decision may provide welcome news for landlords
whose rental stock is subject to stringent rent control regulation.
A recent Appellate Court level case confirmed the constitutionality
of recently enacted local rent control regulations which provide
that a landlord can petition to raise the permissible rental rate
ceiling where the tenant occupant is not using the rental unit
as the principal residence.
In the case of Robert Bisno v. Santa Monica Rent Control
Board, No. B176350, Second Dist., Div. One. (Jun. 28,
2005), an Appellate Court upheld the constitutionality of Regulation
3304 of the Santa Monica Rent Control Board that permits landlords
to petition for a rent increase when the tenant is not occupying
the premises as his or her principal place of residence.
In that case, plaintiff Robert Bisno rented an apartment at The
Shores apartments in 1996. Bisno also maintained a primary residence
in the San Francisco Bay Area. The leasing landlord then sold
the property to Douglas, Emmett & Co., a primary proponent
of Regulation 3304. After Regulation 3304s adoption, Douglas,
Emmett & Co. petitioned for an increase in the maximum allowable
rent on the sole ground that Bisnos apartment was not his
The Santa Monica Rent Control Board, after receiving extensive
evidence, including revelations about Bisnos marital status,
and results of investigators inspections of the apartments
medicine cabinet, refrigerator, kitchen cabinets, and bedroom
closets, authorized an increase in the maximum allowable rent.
Douglas, Emmett & Co. then raised Bisnos rent from $1,111
to $4,295 per month, which after appeal to the Rent Control Board,
was reduced to at $4,045 per month.
Subsequently, Bisno filed suit challenging the constitutionality
of Regulation 3304. Both the Trial Court and the Appellate Court
found that the Santa Monica Rent Control Board did not exceed
its authority by passing Regulation 3304. The Appellate Court,
exercising its own independent judgment and using the criteria
established in Ramirez v. Yosemite Water Company Inc.,
ruled that Regulation 3304 did not exceed the scope of, nor was
it inconsistent with, the Santa Monica Rent Control Boards
enabling statute, the Rent Control Charter Amendment. The Appellate
Court noted that the Rent Control Law is very specific about its
purpose and that its tenor focuses on housing not ancillary residential
The Appellate Court held that the clear emphasis on housing reasonably
permits the inference that the Rent Control Law authorizes the
Rent Control Board to enact measures designed to ensure that rent
control benefits are restricted to serving the laws goals.
The Appellate Court also noted that the regulation provides certain
exemptions that excuse tenants who have a reasonable justification
for not using a unit as their primary residence on a temporary
basis. Individual tenants such as students, the infirmed, or visiting
professors at institutes of higher education would still be afforded
the protections of the Rent Control Law and be exempt from the
revocation provisions of Regulation 3304.
It is of note that while Regulation 3304 has been ruled constitutional,
the Santa Monica Rent Control Board, on its own, has already pared
back Regulation 3304 by granting itself, and not the landlord,
the authority to determine the new rental rate based on the rental
rate for comparable units. Despite that limitation, this judicially
approved avenue of relief may still bolster legal efforts to evict
tenants who do not use their rent-controlled units as their primary
residence. By showing a reasonable amount of proof that the unit
is not used as a primary residence, a landlord can potentially
be freed from the burden of subsidizing their part time tenants
About the Authors: Edward F. Morrison and Larry A. Schwartz
are partners in the Los Angeles office of Lewis Brisbois Bisgaard
and Smith, LLP.