No New State Laws
Well, good news for once and far between for housing providers. No other an authority than Christine Minnehan (the Santa Monica Rent Board Lobbyist to Sacramento) appeared at the January 8, 2009 Rent Board meeting. She stated that the state legislature is so busy dealing with budget problems that there will be no time nor room for any other legislation in Sacramento this year. This means no legislation expanding the rights of tenants. Thus for 2009, the HP gets a pass. One year of respite within our Santa Monica refugee encampment. Wouldn’t it be lovely if Sacramento expanded the model to stop passing laws for 2010 as well?

A Short Primer on Tenants and Repairs
We all have experienced the situation where repairs to apartment units or buildings require that the tenants be temporarily relocated so that the work can be performed. Mold remediation is one such typical event. The rule of thumb is that anytime the utilities must be turned off continuously for 24 hours, the tenant should be relocated. Sometimes (say for mold remediation) it is in the Housing Provider (“HP”) best interests to relocate the tenant while the work is done. Sometimes, the HP would rather keep the tenant in place while the work is done and work around the tenant. Sometimes the HP has no choice. The city (but not the Rent Control Board) has some laws on the subject which should be reviewed prior to the work being done. Santa Monica Municipal Code (SMMC) Section 8.100.020 discusses the requirement that the HP prepare and file with the City a “construction means and method plan (“CoMP” for short). The CoMP must provide a detailed description of the work that will be done in chronological sequence. It must also state what the impacts of the work will have on the occupancy of the unit by the tenants. The report must further state whether the tenants can occupy the unit while the work is being done, and finally if the tenants must vacate, what is the relocation plan. The law states that the tenants must be relocated if the work will “render the premises unsafe for continued occupancy.” The CoMP plan must be filed before a building permit will be issued.

There are two types of relocation plans. If the repair work will take 30 days or less, then the HP must pay the tenant a per diem dollar amount (approximately $70 per day) while the tenant is out of possession. If the work takes longer than 30 days, then the tenant must be moved to a comparable apartment to the one tenant occupies (comparable -- no definition). The cost of the new apartment is borne by the HP, but the tenant must continue to pay the HP the rent for the tenant’s unit without offset. Remember that the 30 days is the time the work takes, not the time that the tenant is out of possession. (See SMMC 4.36.100). Also remember, that the HP has the option of relocating the tenant to a temporary comparable apartment in lieu of the per diem payment even if the work will take less than 30 days. Thus if the HP has an empty apartment in the building, and wants to put the tenant there while the work is being done, the HP can do so, and avoid the per diem payments (the tenant must still pay the normal rent).

The decision as to whether the tenant must temporarily vacate is left to the HP to make. The HP only needs to give the tenant a 30 day advance notice of the temporary relocation.

However, thanks to a lawsuit brought by ACTION’s very own Thomas Nitti against the City of Santa Monica, SMMC 4.36.120 has been changed by adding (f), which states: “(f) No landlord shall be required to provide temporary relocation benefits . . . if the tenant or his or her guest or invitee was entirely or primarily responsible for causing the condition that necessitated the temporary relocation.” In other words, if the tenant breaks something, or makes alterations which cause damages, the HP does not need to pay the temporary relocation fees at all, and the tenant must temporarily relocate themselves. Remember the Tom Nitti Rule if you are fixing mold problems in the bathroom that are caused by the tenant refusing to turn on the fan or open the bathroom windows while taking a shower, or repairing damages caused by a fire the tenant has started.

Finally, no relocation assistance is required if the repairs are required due to damages caused by natural disasters (fires, earthquakes, floods, storms, etc.).

Break-0-The-Lease Party Time
Our wonderful state legislature has come through with another wrong-headed law. Civil Code Section 1946.7 requires a HP to terminate a lease upon request of the tenant under certain circumstances. Tenants may terminate their lease without liability or loss if the tenant (or household member of tenant, no matter how old) has been a victim of an act of domestic violence, sexual assault, or stalking. There is no requirement that the act of hostility has occurred on the HP’s property, or that the HP’s property has any relationship to the act of hostility itself. This law authorizes the tenant to quit the premises and be discharged from payment of rent for any period following the 30 days from date of the notice to the HP canceling tenant’s lease. The notice must be given within 30 days of the incident, and must be accompanied with a copy of the police report, temporary restraining order, or emergency protective order, or a copy of a specified written report by a peace officer. Tenants of the unit who are not victims are not released from the lease. The specified written report is any police report that states that the tenant has filed a report with the police that the tenant or household member is a victim of domestic violence, sexual assault, or stalking. In other words, the police do not need to investigate or establish that such event took place, only that the tenant has claimed that such event took place. This of course is a simple way for tenants to avoid the legal obligations of their leases.

Inquiring minds might ask “Shouldn’t the government be responsible for damages suffered by the HP for loss of rent arising from the breach of the lease?” Isn’t this a simple interference of contract which is prohibited by the constitution? The HP has no control or involvement in any stalking that takes place? It is not something that is under the control of the HP. Why should the HP suffer damages because the tenant (or member of Tenant’s household) runs around with the wrong people? Indeed, if the tenant obtains a stay away order, and the thug is not allowed to come onto the property, why does the tenant have to leave at all? Does this law then give the HP the right to ask a potential tenant if they have been involved in any previous domestic violence, sexual assault, or stalking events? Why should the HP bear the loss? Shouldn’t the public at large bear the loss? What is the rationale to allow a tenant to quit the lease because an adult member of the tenant’s family has been a victim?

In Ross v. City of Berkeley, 655 F.Supp. 820, N.D.Cal.,1987, the court held that Article I, Section 10, Clause 1 of the United States Constitution provides that “[n]o State shall ... pass any ... Law impairing the Obligation of Contracts ....” Ross referred to Allied Structural Steel Co. v. Spannaus, 438 U.S. 234, 245 where the court held that the state must explain why a less restrictive measure would not adequately minimize the potential abuses which are the rationale for the law.

Sticks and Stones can Break my Bones,
but Words Will Land Me in Jail–
Communications can be Harmful
Well leave it to S. Kuehl to come to the rescue with this one. This new law (SB 129 Criminal Communications) is Penal Code Section 653m. It applies to any communication made on any electronic communication device. That includes any telephone, answering machine, text message, fax, email, and the like. The law makes it a misdemeanor punishable by a maximum of 6 months in the county jail or a $1,000 fine or both for a person to make communication with the intent to annoy another person at any place. A person is also guilty if the person knowingly permits any such communication device under the person’s control to be used for the prohibited purpose. The law reads in part: (a) Every person who, with intent to annoy, telephones or makes contact . . . addresses to or about the other person any obscene language or addresses to the other person any threat to inflict injury to the person or property of the person addressed or any member of his or her family, is guilty of a misdemeanor. Nothing in this subdivision shall apply to telephone calls or electronic contacts made in good faith.” (What in goodness sakes does “good faith” mean?).

Well, Ms. Kuehl we can have it both ways! If it is illegal, then it is also a grounds for eviction for any tenant to threaten or annoy any HP. If the HP gets home after a hard day’s work, and on the HP’s answering machine there is a horrible message from the worst of tenants, threatening or annoying, the HP may have a ticket (message) to eviction. Think of Kuehl and liberation. Remember, if you are communicating with a tenant, the last thing you want to do, is to sound annoyed or angry. You do not want the City Attorney suing you for threats and or annoying communications— unless you need a rest in jail.