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SR-8-C (67) Ort/. . :fF/13lf CCS (:r.n1ro. T~~ ~ CC f\ctyclerk\electlons\staffrpt 2day.ord. ! 0 tf. - () ~3 CIty Council Meeting February 2. 1999 8e" FER - 2 1999 TO Mayor and City Council FROM City Staff SUBJECT. An Ordinance of the City Council of the City of Santa MOnica Establishing Election procedures for the Conduct of the Special Two-Day MunIcipal Election to be Held on Apnl 24 and 25, 1999 Introduction At Its meeting of December 22, 1999, the City Council called for a special municipal electIon to be held over a two-day penod on Apnl24 and 25, 1999, for the purpose of filling an unscheduled vacancy on the City Council left by the resignation of a Councllmember, and to place a measure on the ballot Election Procedures Section 1403 of the City Charter directs that unless otherwIse provided by ordmance, all elections shall be held In accordance With the regulations of the State ElectIons Code. The ElectIons Code does not provide for the holding of a two-day election Attached to thIS staff report IS an ordInance setting the procedures to conduct the two- day election fairly, Impartially and effiCiently Budget/Financial Impact Adoption of thiS ordinance Will not cause any budget or financial Impact Funds for thiS election were approved on December 22, 1998 Recommendation Staff recommends that Council hold Introduce and adopt the ordinance as presented Prepared by: Mana M Stewart, City Clerk Joe Lawrence, Assistant City Attorney Attachment OrdInance 1 iC, FEB - 2 1999 ~#=q?bo/ Co t:tg f. \atty\mum\strpts\mJm\charter ten City Council Meeting 1-26-99 ( 0 t.{ ~ O'D 3 JAN 2 6 1999 Santa Monica, California TO Mayor and City Council FROM City Attorney SUBJECT Proposed CIty Charter Amendment Protecting Residential Tenants Against EVictions Based Upon Immatenal or Insubstantial ViolatIons or Upon Terms Which the Landlord Has Waived, Or Is Estopped To Assert and Resolution to Place the Proposed Charter Amendment on the Apnl, 1999 Ballot IntroductIon At Its meeting of January 19, 1999, the City Council directed the City Attorney's office to prepare a proposed City Charter amendment Intended to protect residential tenants against eVictions based upon Immatenal and Insubstantial Violations of rental agreements and against eVictions based upon covenants or obligations which the landlord has prevIously waived or IS precluded by conduct from enforcing The Council further directed that staff prepare the documents necessary to place the proposed amendment on the Apnl, 1999 municipal ballot ThiS Staff Report and the accompanYing documents respond to those directions Back~round On a number of occasions In the last two years, the CIty Council has heard public testimony or otherwise receIved reports of growing numbers of residential eVictIons based 1 q~ JAN 2 6 819 .L- upon violatIons of rental agreements which are tnvlal or which relate to conduct by the tenant which the landlord has tacitly approved by inaction or other apparent assent Many examples Involve pets In one class of pet situations, the tenant has had a pet for many years and the landlord knows It and has never objected Suddenly, the landlord serves notice that the tenant must either get rid of the pet or vacate the Unit In these situations, whatever the rental agreement says, the tenant has assumed that the landlord's conduct In allOWing the pet meant that the landlord knowingly assented to Its presence In a slightly different class of reported pet Situations, the tenant Irves In a bUilding where other tenants have pets Based upon thiS fact, the tenant acquired a pet In reliance upon the landlord's conduct In allOWing pets and was later served with a notice to cure Other kinds of reported Situations Include those In which the tenant makes substantial Improvements or modifications to the rental unit Such modifications may have been undertaken In reliance upon the landlord's past conduct or the landlord may Simply have - assented to the Improvement after the fact Later, the tenant receives a notice to wcure" the "breach" by removing the Improvements or modIfications - which may be very costly or difficult Community members have expressed concern that eVictions undertaken In such Situations are unfair The tenant may lose hiS or her home based upon conduct which he or she reasonably believed was not objectionable to the landlord Moreover, In addition to lOSing 2 ... his or her home. the tenant may be forced to move out of the City because rents are increasing and there IS a shortage of available units California law already recognizes pnnclples and defenses which may assist a tenant In these types of situations For Instance, the California CIvil Code Incorporates basIc precepts of equity, including that "He who consents to an act IS not wronged by It," W[a]cqulescence In error takes away the rrght of objecting to It," and "[t]he law disregards trrfles." CIvil Code Sections 3515, 3516, 3533 Moreover, forfeitures are generally disfavored because they work very harsh consequences See, e q , CIvil Code Section 1442 [requlrrng that a forfeiture condition be strrctly Interpreted against the party which It benefIts] Moreover, at least In some contexts, case law recognizes a variety of defenses which promote fairness Thus, the law may protect a tenant who substantially complIes wIth the terms of his or her rental agreement against eViction based on a tnvlal breach See Union 011 Co V Chandler, 84 Cal Rptr 756 (1970) Moreover, a tenant may be able to defend In an unlawful detainer proceedIng based upon proof of waiver or estoppel See DRG/Beverly Hills, Ltd V Chopstlx Dim Sum Cafe & Takeout III, Ltd ,35 Cal Rptr 2d 515, 518 (1994) [Waiver IS the intentional relinqUIshment of a known nght after knowledge of the facts, estoppel may anse where the conduct of one Side Induces the other to change position In such a way that he or she would be Injured If the first party were permitted to repudiate the conduct] Based upon these pnnclples, a landlord may be unable to eVict a tenant If (a) the breach IS minor or merely technical, (b) the landlord has expressly or Impliedly relinqUIshed the right to enforce the particular rental agreement prOVIsion by 3 previously failing to object to a known breach, or (c) the landlord leads the tenant to believe that stnct compliance will not be reqUired and the tenant acts accordingly to his or her detnment However, despite the fact that they are recognized In California law, the extent to which these protections actually shield residentIal tenants from eVIction IS uncertain DIScuSSion Legal staff communicated CounCil's direction to Rent Board administration and asked for suggested modifications to City Charter Sectton 1806 which specifies what constitutes "good cause" for an eVictIon from a controlled rental unit Subsection (b) establishes that Violation of a term or condition of the tenancy, other than the covenant to pay rent, constttutes good cause If the tenant IS given the opportunity to cure The suggested modifications would amend subsectIon 1806(b) by adding requirements of substantiality and matenallty and also by precluding eVIctions where the landlord has expressly or Impliedly relmqUlshed the nght to enforce and where the landlord has led the tenant to beheve that stnct comphance Will not be reqUired and the tenant has acted accordingly to hiS or her detnment Stated otherwise, the proposed modifications would provide express, local statutory recognitIOn of defenses based upon the trivial nature of the alleged breach or upon waiver or estoppel The proposed additions to Section 1806 would not preclude tenants from asserting any other defenses which the law may make available to them For Instance, the law presently 4 . recognizes defenses based upon the fact that the lease provIsIon In question IS not "matenal" and upon the claim that the landlord has commItted fraud Specific references In Section 1806 to defenses based upon the tnvlallty of the breach, or waiver or estoppel would not preclude tenants from asserting other defenses available as a matter of state law If the proposed or similar language were added to City Charter Section 1806(b), Rent Board administration adVises that the Rent Board would likely promulgate regulations Implementing these protections In the course of giving staff directIon, the CounCil noted the POSSibility that proposing the subject amendments might have the unrntended consequence of prompting landlords to Immediately undertake eVictIons In fear that passage of the proposed measure would diminish their rights and options One counCil member asked whether staff could propose any action which could be taken to avert thiS POSSIbility We conferred With Rent Board administration about thiS As of the preparation of thiS report, staff has been able to Identify only two general options either providing Incentives to landlords not to eVict or attempting to make the modIfIcations retroactive Rent Board administration noted the pOSSibility that a tenant could argue that the date of the notice terminating a tenancy might be taken Into account by a court as indicative of the landlord's Intent to aVOid the consequences of the proposed amendments However, It IS not clear that the landlord's Intent would be relevant The fact that state law already recognizes the defenses 5 , . established by the subject amendments may also reduce the risk that this legislatIon will prompt eViction actions BudqetlFlnanclallmpact There IS no budget or financial Impact to the City as a result of the proposed City Charter amendment Recommendation Rent Board administration recommends that the CounCIl place the proposed language on the Apnl, 1999 ballot PREPARED BY Marsha Jones Moutne, City Attorney Joseph Lawrence, ASSistant City Attorney Barry Rosenbaum, Senior Land Use Attorney 6