Feature

Legal Update

By Ted Kimball

New State Laws

Pets

Effective January 1, 2001, mobile home park owners and condominium home owner associations will no longer be able to prohibit home owners from having at least one pet. Nor can these entities impose monetary charges for pets. They can, however, regulate the use of the pets with reasonable rules and restrictions. The owner of the coach or condo can still prohibit tenants from having pets, but not the home owners association or mobile home park owner.

Identity Theft

In order to prevent identity thieves from finding personal identification information in dumpsters, all business owners are now (as of 2001) required to destroy, shred, erase or otherwise modify the personal information in any records they are throwing out.

Current law requires that a landlord serve a 30-day notice to increase rent in a month-to-month tenancy. The notice must be served by personal service, post and mail, or substitute service and mailing (the same as a three-day notice to pay rent or quit). The new law allows for service by mail or personal service, but if the service is by mail, residential tenants have an additional five days before the rent increase is effective. However, if the rent increase is 10% or greater, the notice period required is 60 days, with an additional five days if not served personally. This law, effective January 1, 2001, only applies to rent increases, not other changes of the month-to-month tenancy. If more than one increase is given within one year, and the total percentage increase is 10% or greater, a 60-day notice must be served.

Pest Control

Effective January 1, 2001, rental property owners will be required to provide each new tenant with a copy of the notice provided by a pest control company (current law) for periodic/routine pest control activity on the property.

Water Utilities
Since many apartment communities do not have sub-meters for water or sewer usage measurement, the Ratio Utility Billing Systems (RUBS) program was developed to allow residents to pay for their portion of water/sewer usage. Typically, the lease includes a provision that requires the resident to pay for their water/sewer utility pursuant to a calculation which may consider such factors as the number of occupants, size of the rental unit, number of bathrooms, main water meters located on the premises, and other relevant factors.

On July 3, 2000, the California Public Utilities Commission (CPUC) rendered their final ruling, effective August 3, 2000. The “bottom line” of their decision is they do not have jurisdiction over this RUBS issue unless the property or water system is “dedicated to the public.” Public dedication is a question of fact on a case-by-case basis and is difficult to prove. The CPUC also recognized that they only have jurisdiction over privately owned public water companies, which comprise only about 20% of the market (the remainder are owned/operated through local governments). It is likely that local and state government legislative proposals will be forthcoming to consider the restriction or elimination of a residential landlord’s ability to charge back water to its residents.

Additional Five-day Notices on Post and Mail

Struck down in the Fourth District (San Diego, Riverside, Orange and San Bernardino counties), the Court of Appeals has ruled that when a landlord uses the “post and mail” method of serving a pre-eviction notice and/or “substitute service” (both of which require a mailing), they need not add five additional days for the mailing. However, some judges in the district continue to require the five days despite the ruling. This issue should be clarified over time, and other districts may follow suit by eliminating the extra time requirement, which has plagued property owners for years. Our law firm (Kimball, Tirey, and St. John) drafted the successful amicus curiae appellate brief in the Losornio v. Motta action, representing theSanDiegoCountyApartment Association.

Bankruptcy
Bankruptcy filings to delay residential evictions were dealt a heavy blow in 2000 when the U.S. Supreme Court ruled in favor of California landlords in the case of Lee v. Baca. The court upheld a California state law which requires sheriffs to ignore bankruptcy filings once a judgment for possession has been granted in an unlawful Detainer action. Once a judgment has been rendered for possession, the tenant has lost the leasehold interest as an asset and is no longer subject to bankruptcy laws. This ruling is being followed by all sheriff’s offices in Southern California and many in Northern California.

Americans with Disabilities Act (ADA)
A Federal Appeals court recently ruled that a tenant’s failure to comply with ADA rules exposes the landlord to liability as well. In this case, a commercial landlord rented to a tenant who failed to provide handicapped parking. The lease required the tenant to comply with all state and federal regulations. Even so, the court held that the landlord was liable, even though the lease stipulated that provision of adequate parking was the tenant’s responsibility.

Telecommunications
In the fall of 2000, the Federal Communications Commission (FCC) ruled that telecommunication companies cannot have exclusive contracts with commercial property owners (similar to state legislation last year, which also included residential property owners). Proposed federal and state legislation requiring property owners to allow access to telecommunication companies without the ability to charge for the use of their buildings was defeated, but it is reasonable to expect that more legislation will be proposed in 2001. The major reasons for the defeat were threefold: 1) the law would be an unconstitutional taking without just compensation; 2) it is unnecessary as telecommunication companies are having little trouble gaining access to buildings; and 3) regulating the process would be extremely difficult and could lead to potential liability for property owners and telecommunication companies alike.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Ted Kimball is a senior partner with the law firm of Kimball, Tirey & St. John. The law firm specializes in landlord/tenant law and represents clients throughout California. Any questions in regards to the contents of this article should be made by calling 800-338-6039. © Copyright 2001.