Last Sunday, April 3, Mayor Butt circulated one of his E-Forums presenting concerns he has with the Richmond Fair Rent, Just Cause for Eviction and Homeowner Protection Ordinance for which many of us are gathering signatures for placement on the November 2016 ballot.  I am one of the proponents of the initiative and feel strongly that this measure addresses important issues for the well-being of our community, including stabilization of our neighborhoods and protection for renters.   

I am providing this response because I feel strongly that muddying the waters with misinformation is not in the interest of our community.   Here is a link to Mayor Butt’s E-Forum statement:   

http://www.tombutt.com/forum/2016/16-4-3a.html

 Perhaps Mayor Butt did not have time to read carefully the whole ordinance, but I have clarified below the points of misinformation that he presented.

Composition of the Rent Board

Mayor Butt seems to be worried about the make-up of the Rent Board.  Well, this 5 member Board will be appointed by the current mayor and future mayors - with the concurrence of a majority of the City Council.   It will be up to Mayor Butt to put forward appointees for this Board.   Any member of the Board can also be removed by the mayor - with the concurrence of a majority of the City Council. 

The only things that the ordinance mentions in terms of the Board composition is that all appointees need to be Richmond residents and that no more than two of the 5 board members shall  “own or manage any rental property or are realtors.”    We originally had thought of having an elected rent board, but because of the added expense on the City to hold additional elections, we decided to go along with an appointed board to save the City money.

Mayor Butt is also misinformed that the Board can be funded “from the General Fund as they see fit.”  In fact the very opposite is true. The Ordnance clearly states that the budget of the rent board shall be funded by the Rental Housing Fee, which will be paid by the landlords.  The City Council will set the amount for this fee, after a recommendation of the Rent Board.   There is a statement that also says:  “The Board is also empowered to request and receive funding when and if necessary from any available source for its reasonable and necessary expenses.”    The purpose for including this is so that the Board, if desired, can request  money from federal or state grants and programs.  Potentially, they could request funds for rehabbing of rental units that would be available to landlords.

Again, this ordinance DOES NOT state that the Rent Board has independent access to the General Fund.  It is the City Council that determines what comes into and goes out of the General Fund.   The reason for keeping the Board independent of the City of Richmond budget and to give the Board control over their own budget (with landlord fees approved by the City Council) was to put a firewall between the Rent Board’s budget and the City Council’s budget.  If the Board was part of the City of Richmond budget, then there would be legitimate concerns about General Fund money potentially going to fund the Board.   We wrote this ordinance specifically so that the Rent Board would be separately funded by landlord fees.

Misdemeanor

Mayor Butt address the fact that violation of this ordinance is a misdemeanor which could result in up to 6 months imprisonment in county jail. California Penal Code Section 19 addresses how misdemeanors are handled and all ordinances of the City are held to California Penal Code.  It is up to the courts to determine  the penalty for specific misdemeanors.  Most result in fines.  However, a state court always has the discretion - perhaps if there were repeated violations - to require up to 6 months in jail.  Again, this is state law.  

Base Rent Roll-back

Another point I want to clear up is about the base rent that will roll back to the amount charged on July 21, 2015, which was the date included in the original ordinance passed by the City Council.  However, as the ordinance states, there is the allowance of one annual Consumer Price Index (CPI) increase, since one full year will have ensued by the time this will go into effect.   Also, landlords can petition the Board if they feel they are not getting a reasonable return to get a further adjustment of the rent.  The Board will enact rules and regulations regarding hearings and appeals.

Sub-tenants

Mayor Butt expresses concerns about sub-tenancy.   This subject is addressed in the Just Cause for Eviction section of the ordinance.

As most of us know, there are many rental units in which roommates live and share the rent.  A three-bedroom unit, for example, may have 3 roommates sharing the rent.   Should one of the roommates move out, the remaining tenants often cannot carry the rent without subleasing to a new roommate.   As the ordinance states, the landlord must be notified in writing about a proposed new occupant.  The landlord has a right to a reasonable refusal of the Tenant’s written request.   But the main point of this section is that the landlord cannot evict a tenant if the original tenant(s) finds a subtenant or subtenants to replace one or more departed roommates on a “one-for-one basis” and as long as the landlord has been notified and has not reasonably withheld the right to sublease.  

There is also protection for families in this section.  Perhaps a tenant marries or child is born to a family or a grandparent moves in.  There is protection for such additional tenants, although the maximum number of occupants per California Uniform Housing Code, even in these family situations, cannot be exceeded. 

There is no reason for concern by landlords in situations of “just cause” evictions for any tenants - including subtenants - since landlords can evict for reasons of failure to pay rent, breach of lease, nuisance (such as noise and/or non-maintenance of the property), failure to give access, temporary vacate orders, owner move-in, withdrawal from rental market, and temporary tenancy.    

Landlord Repairs

Another concern that Mayor Butt addresses is in regard to landlord repairs.  It is NOT true that any repair or improvement done to a rental unit must be pre-approved by the Board.  The ordinance states that “The Board shall promulgate regulations for the repair and improvement of Rental Units to ensure the least amount of disruption for the Tenant.”  The rules and regulations have not been worked out yet.  That will be one of the first tasks the Rent Board will undertake.   Emergencies and non-emergencies will be addressed in the regulations.   It is noteworthy that pro-tenant cities such as Berkeley and Santa Monica have never had a situation where a landlord has been denied the right to make needed repairs (emergency or otherwise). 

Mayor Butt also takes issue with the landlord’s obligation to offer another unit to the tenant during repair work that temporarily displaces the tenant. The ordinance states that if the landlord has another unit (that is vacant) he/she must offer temporarily that unit to the tenant at no more than the lawful rent of the unit that is being repaired.  This is only for a period of up to 90 days or less (if the repair takes less time).   This time-frame is a protection for the landlord so that the landlord can indeed evict the tenant after the 90 days (or less) from the vacant unit, requiring them to move back into the original and now repaired unit.

Owner Move-In

Mayor Butt also expressed concerns about the timeframe for an owner move-in, so let me clarify.

For an eviction that is allowed due to the owner, or his/her spouse, children, parents or grandparents, moving into the unit, the ordinance states that:  “The Landlord or enumerated relative must intend in good faith to move into the Rental Unit within ninety (90)  days after the Tenant vacates and to occupy the Rental Unit as a primary residence for at least Thirty-Six (36) consecutive months. The Board may adopt regulations governing the determinations of good faith.”  This is a protection against the circumvention of rent control. Landlords should not be able to say they are moving in, just to evict a tenant and circumvent the reasonable  limits put on a rent-controlled unit.  This is a protection for families who get unreasonably evicted, so the landlord can raise the rent.  Mayor Butt states that an owner will not be able to do major repairs before moving in, but again this section mentions a “good faith” intention and the Board may adopt regulations governing the determination of good faith.  

Rent Board regulation of adjustment of rents

Mayor Butt is concerned about the Rent Board making adjustments in rent increases and decreases.   The ordinance states clearly that the rent can be increased up to 100% of the CPI on an annual basis.  This must be adhered to.  However, there is a provision that states that landlords have a right to a reasonable return, and there is a petition process through the Rent Board by which a landlord can request an additional upward adjustment.   This is an individualized situation and on a case by case basis, the Board will look at such requests.   A tenant may also request a downward adjustment - for example, for a reduction in services. Open hearings will be conducted for these individual adjustments of the Maximum Allowable Rent.  

Withdrawal from Rental Market

Mayor Butt refers to the section regarding a landlord wanting to withdraw from the rental market.  He states there is a contradiction or conflict in the ordinance regarding the timeframe given tenants to vacate a unit based on a withdrawal from the Rental Market.  The ordinance states as follows:  “Tenants shall be entitled to a 120-day notice or one (1) year in the case tenants are defined as senior or Disabled under Govt. Code Section 7060.4 (6).    Mayor Butt sees a contraction in that our City code has permits for substantial repairs or demolition expiring in 6 months.  The fact is that for the most part, tenants will have to leave the unit within 4 months (120 days) once they have been notified of a landlord’s intention to withdraw from the rental market .  However, a senior or a disabled tenant is provided by state law 1 year to vacate.  State law is what the City must follow, and it is very reasonable to give senior and/or disabled tenants more time to vacate.

Written Warning Notice Requirements

Mayor Butt states there is a contradiction in regard to the ordinance requiring  1) the landlord to first give a written notice to the tenant to cure a breach of lease, nuisance or refusal to give access to the landlord, and 2) the fact that the ordinance also disallows a landlord to threaten to terminate a tenancy verbally or in writing.   There is no contradiction in this.  The ordinance states that any written notice in regard to these problems “shall be served by the Landlord within a reasonable period prior to serving a notice to terminate tenancy and shall inform the Tenant that a failure to cure may result in the initiation of eviction proceedings.”   Informing a tenants of his/her right to cure a problem is different from threatening a tenancy verbally or in writing.

Retaliation is Barred (for lawful non-payment of rent)

There is a section in the ordinance to prevent eviction as retaliation for the tenant reporting violations.  The ordinance disallows the landlord to take possession of the unit “if it is determined that the eviction is knowingly in retaliation for the Tenant reporting violations of this Chapter.”  Mayor Butt seems to think that that the tenant can withhold rent for repairs, even if the reason is unjustified.  This is not true.   The Rent Board will determine if the landlord is in compliance or not by a “preponderance of the evidence submitted.”  In regard to decisions decreasing rents, the ordinance states:  “Upon a determination of compliance the Landlord shall be entitled to reinstatement of the prior Rent level, retroactive to the date that the Landlord corrected the defect which warranted the decrease.”  But it is an important tenant protection against retaliation that a landlord cannot evict during the compliance determination process.

Hearing examiner decisions

Mayor Butt is concerned that there is a contradiction in the ordinance in its stating that:  1) a decision of the hearing examiner will not be stayed on appeal to the Rent Board,  and  2) a decision of the Board shall not go into effect until thirty (30) days have expired to allow for a potential “judicial review.”  These are two different things.   One is an appeal to the Rent Board and the other is an appeal to the appropriate court.  There is no contradiction there. 

In the case of an appeal to the Rent Board, if a decision of the hearing examiner is reversed or modified, the Landlord or Tenant  ”shall be ordered to make retroactive payments.”  

In conclusion:  This ordinance is a sound and much-needed measure that will allow our community to grow and flourish in a healthy and stable way.  As I have stated repeatedly, this measure is but one tool - albeit an important one - in our toolbox for addressing the ongoing housing crisis we face.  We must also continue to build new affordable housing and address the needs of the homeless.  

Our community deserves stable neighborhoods, our renters deserve protection, and the passage of this initiative will provide displacement protection for many.  

Signature gathering to put this on the November ballot will continue until the beginning of June.  Please come to 1021 Macdonald Ave. on Saturdays (10-4) and/or Sundays (12-4) to participate...or call (510) 621-7566.

Let’s continue to build a better Richmond together!

-Gayle

Contact Information

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phone:  (510) 237-1456

email:  [email protected]

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