SR-9-B (42)
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f \atty\mum\strpts\mJm\charter ten JAN 2 6 1999
City Council Meeting 1-26-99 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 eVlctlons 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
April, 1999 mUnicipal ballot This Staff Report and the accompanYing documents respond
to those directions
Backqround
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
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JAN 2 6 1999
upon violations of rental agreements which are trivial 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 nd 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 lives 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 "cure"
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
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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 recogmzes princIples 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,"
"[a]cqUlescence In error takes away the right 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 9 , CIvil Code SectIon
1442 [requirrng that a forfeiture condition be strictly Interpreted against the party which It
benefits] Moreover, at least In some contexts, case law recognizes a vanety of defenses
which promote fairness Thus, the law may protect a tenant who substantially compiles
with the terms of hiS or her rental agreement against eVIction based on a trrvlal 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 rrght 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 principles, 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 nght to enforce the particular rental agreement provIsion by
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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 detriment 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 Section 1806 which specIfies what constitutes
ugood 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,
constitutes 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 precludmg eVictions where the landlord has expressly or
Impliedly relinqUished the nght to enforce and where the landlord has led the tenant to
belIeve that stnct compltance Will not be reqUired and the tenant has acted accordingly to
hiS or her detnment Stated otherwise, the proposed modlflcattons 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
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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 triviality 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 unintended consequence of promptmg landlords to
Immediately undertake eVictions In fear that passage of the proposed measure would
diminish their nghts 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
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establrshed by the subject amendments may also reduce the nsk that this legislation will
prompt eViction actions
Budget/Financial Impact
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, Semor Land Use Attorney
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F \atty\m unl\1 aws\barry\charter\e lect99 1
City Council Meeting 1-26-99 Santa MOnica, California
,
RESOLUTION NUMBER 9364
(City Council Senes)
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A RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF SANTA MONICA CALLING FOR AND GIVING NOTICE
OF THE HOLDING OF A SPECIAL MUNICIPAL ELECTION
TO BE HELD ON SATURDAY AND SUNDAY, APRIL 24 AND 25,1999 RELATED
TO AMENDING CITY CHARTER SECTION 1806
WHEREAS, Elections Code Section 12109 authonzes the City Council to provide
that all ballots cast at the Special MUnicipal Election be counted at a central counting
place,
WHEREAS, Elections Code Section 9280 authonzes the City Council to direct the
City Clerk to transmIt a measure appeanng on the ballot to the CIty Attorney to prepare an
Impartial analysIs,
WHEREAS, Elections Code Section 9282 et seq prOVIdes for procedures for
arguments concerning city measures, and
WHEREAS, Elections Code SectIons 9282 and 9285 authonze the City CounCil, or
any member or members of the CIty CounCil authonzed by the City CounCil, to fIle written
arguments, including rebuttal arguments In favor of any City measure,
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NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF SANTA MONICA
DOES RESOLVE AS FOLLOWS
SECTION 1 A SpecIal Municipal Election shall be held In the City of Santa MOnica
on Apnl 24 and 25, 1999, which IS the election ordered In accordance with Elections Code
Section 9255 for the purpose of submItting Initiatives amending the Santa MOnica City
Charter of the City of Santa MOnica
SECTION 2 The followIng measure shall appear on the ballot and be submitted
to the voters of the City
PROPOSITION" II Shall Santa Monica YES
City Charter Section 1806(b) be
amended to provide that a tenant in a
controlled rental unit cannot be
evicted unless the tenant has
committed a material and substantial
violation of the lease which the
landlord has not waived or otherwise NO
lost the legal right to use as the basis
for an eviction?
The CIty Clerk shall cause the text of the propOSItion, which IS contained In ExhIbit 1
attached hereto and Incorporated by reference, to be maIled to all qualified voters wIth the
sample ballot The City Clerk shall cause the text of the propositIon to be published In the
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official newspaper and In each edition thereof dUring the day of publication In the manner
required by law
SECTION 3 The ballots to be used at the SpecIal Municipal Election shall
be both as to form and matter contained therein such as may be reqUired by law
SECTION 4 The City Clerk IS authonzed, Instructed, and directed to procure
and furnish any and all official ballots. notices, pnnted matter, and all supplies, equipment,
and paraphernalia that may be necessary In order to properly and lawfully conduct the
Special Municipal Election
SECTION 5 The polls shall be open at 8 00 a m on Saturday, April 24,
1999 and shall remain open continuously until 7 00 P m of the same day when the polls
shall be closed, except as provided In Elections Code Section 14401 or by ordinance The
polls shall be open at 1000 a m on Sunday, Apnl 25, 1999 and shall remain open
contlnously until 700 pm of the same day when the polls shall be closed, except as
provided In Elections Code Section 14401 or by ordinance
SECTION 6 The notice of the tIme and place of holding of the Special
MUnicipal Election IS hereby given and the City Clerk IS authonzed, Instructed and directed
to give such further or additIonal notice of the election In the time, form and manner
reqUired by law
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SECTION 7 Pursuant to ElectIons Code Section 12109, the City Clerk IS
authorized, Instructed and directed to give such notice of the central counting place In the
tIme, form and manner reqUIred by law
SECTION 8 Pursuant to Elections Code Section 9280, the City Clerk IS
dIrected to transmit a copy of each measure to be submItted to the voters to the City
Attorney and the City Attorney IS directed to prepare an Impartial analYSIS of each measure
shOWing the effect of the measure on the eXIsting law and the operation of the measure In
accordance With the provIsions of Elections Code Section 9280 The Impartial analYSIS
shall be filed by the date set by the City Clerk for the filing of pnmary arguments
SECTION 9 In all partIculars not recited In thiS Resolution, the Special
Municipal Election shall be held and conducted as provided by law for holding thiS and
other mUnicipal elections In the CIty of Santa MOnica
SECTION 10 In accordance With Elections Code Sections 9282 and 9283
the CIty Council authonzes the follOWing Council members and other persons or
organizations to file wntten arguments as follows
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ARGUMENT IN FAVOR OF PROPOSITION
Mayor Pam O'Connor
Mayor Pro Tern Ken Genser
Councllmember Robert Holbrook
Councllmember Paul Rosenstern
Councllmember Mrchael Feinstein
Councllmember Kevin McKeown
SECTION 11 Wntten arguments, not to exceed 300 words In length, are to
be filed wIth the City Clerk no later than February 10, 1999 Arguments so submitted may
be changed or wIthdrawn by the author(s) until and rncludlng the date fixed by the City
Clerk after which no arguments for or agarnst the measure may be submitted to the City
Clerk Rebuttal arguments not exceedrng 250 words may be submitted by persons for or
agaInst the Measure In accordance wrth Electrons Code Sectron 9285
SECTION 12 The City Clerk shall certrfy to the adoption of this Resolution,
and thenceforth and thereafter the same shall be rn full force and effect
APPROVED AS TO FORM
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MARSHA JONES MOUTRIE
CIty Attorney -
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EXHIBIT 1
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PROPOSAL BY THE CITY COUNCIL OF THE CITY OF SANTA MONICA
TO BE SUBMITTED TO THE VOTERS OF A PROPOSED
AMENDMENT TO THE CHARTER OF THE CITY OF
SANT A MONICA, CALIFORNIA
SectIOn 1806 of the CIty Charter of the CIty of Santa MOllIca IS amended to read as
follows'
1806. Eviction.
No landlord shall take actIon to tenmnate any tenancy mcludmg servIce
of any notIce to qUIt or other eVIction notIce or bnng any actIon to recover
posseSSIOn or be granted recovery of possessIon of a controlled rental umt
unless:
(a) The tenant has faIled to pay the rent to whIch the landlord IS entItled
under the rental housmg agreement and thIS ArtIcle
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(b) The tenant has c01rurutted ~-..:;.:~~.:~ aft' matenal and substanhal
breach of an oblIgatlon or covenant of hIS or her tenancy whIch the landlord
has not waIved eIther exnresslv or lmnhedlv throulIh the landlord's conduct
... .. .a- ... _
and whlCh the landlord IS not estopped from assertmg: other than the
oblIgatJon to surrender posseSSIOn upon proper notice. and the tenant has faIled
to cure such v101atlOn after havmg receIved wntten notIce thereof from the
landlord m the manner requIred by law.
(c) The tenant IS commIttmg or expressly penmttmg a nUIsance m, or
IS causmg substantIal damage to, the controlled rental umt, or is creatmg a
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substantIal interference with the comfort, safety, or enjoyment of the landlord
or other occupants or neIghbors of the same.
(d) The tenant IS convicted of using or expressly pemnttmg a
controlled rental unit to be used for any illegal pwpose.
(e) The tenant, who had a rental housing agreement which had
terminated, has refused, after written request or demand by the landlord, to
execute a wntten extensIOn or renewal thereof for a further term of like
duratIOn and ill such terms as are not inconsIstent With or violative of any
prOVisions of tlus Article and are matenally the same as ill the previous
agreement
(f) The tenant has refused the landlord reasonable access to the
controlled rental umt for the pwposes of making necessary repairs or
rmprovements reqUIred by the laws of the Umted States, the State of California
or any subdIViSIon thereof or for the pwpose of showing the rental housing to
any prospectlve purchaser or mortgagee
(g) The tenant holdmg at the end of the term of the rental housmg
agreement IS a subtenant not approved by the landlord.
(h) The landlord seeks to recover possession in good faIth for use and
occupancy by herself or himself, or her or his children, parents, grandparents,
brother, SIster, father~m~law, mother-in-law, son-m-Iaw, or daughter-m-Iaw.
For purposes of eVictIons under thIS Subsection'
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(1) A "landlord" shall be defmed as a natural person who has at least
a fifty (50) percent ownership mterest in the property.
(2) No eviction may take place if any landlord or enumerated relative
already occupies one unit on the property, or if a vacancy already exists on the
property and the vacant urnt is comparable to the unit for which evictIon IS
sought Where the vacant urnt IS determmed not to be comparable, thereby
penruttmg eviction under thIS SubsectIon, the evicted tenant or tenants shall
be fITst giVen the nght to occupy the vacant unit and the rent thereof shall be
the lesser of the maximum allowable rent for the vacant unit and the maximum
allowable rent of the urnt from wluch the tenant or tenants are eVicted The
Rent Control Board shall promulgate regulatIons defmmg when a unit is
comparable for purposes of thIS paragraph
(3) The nonce tenninatmg tenancy shall contam the name, address and
relatIOnshIp to the landlord of the person mtended to occupy
(4) The landlord or enumerated relatIve must mtend m good f81th to
move mto the urnt WIthIn thIrty (30) days after the tenant vacates and to
occupy the urnt as a pnrnary resIdence for at least one year The Board may
adopt regulanons govermng the determmation of good faIth.
(5) If the landlord or relatIve specified on the notice tennmating
tenancy faIls to occupy the unit wIthm thIrty (30) days after the tenant vacates,
the landlord shall-
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(i) Offer the urnt to the tenant who vacated it.
(n) Pay to sald tenant all reasonable expenses incurred in movmg to
and/or from the unit
(6) No eVlctIOn pursuant to this Subsection shall be allowed many
condominIum or stock cooperative unit which has been converted from an
apa.tment or other rental urnt after Apnll0, 1979, unless the Rent Control
Board has Issued a removal permit or declared a vested nght for said urnt As
used m tIns subpart, a umt shall be deemed converted after April 10, 1979, if
on April 10, 1979, the recorded tract map or parcel map for the property
showed the urnt as included m the property
(I) The landlord seeks to recover possession to demolIsh or otherwise
remove the controlled rental unit from rental residennal housing use after
havmg obtamed all proper permits from the City of Santa Momca.
Notwithstanding the above proVisions, possession shall not be granted
If It IS determmed that the eviction IS In retalIanon for the tenant reportIng
vlOlatJons of dus Artt.cle, for exerclsmg nghts granted under this Article,
mcludmg the nght to withhold rent upon authonzation of the Board under
Sectlon 1803(q) or Section 1809 or for organization other tenants In any
notice purporting to term mate tenancy the landlord shall state the cause for the
termmatlOn, and m any actIOn brought to recover possession of a controlled
rental unit, the landlord shall allege and prove complIance with this Section
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Any vlOlatlon of this Section shall render the landlord liable to the
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tenant m a civtl action for actual and pumtIve damages. The prevailing party
in an actIon based upon thIs Section shall recover costs and attorneys fees
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Adopted and approved thIs 26th of January, 1999
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am O'Connor, Mayor
I, Mana M Stewart, City Clerk of the CIty of Santa MOnica, do hereby certIfy that
the foregOing Resolution 9364 (CCS) was duly adopted at a meeting of the Santa
MOnica CIty CounCil held on the 26th of January, 1999 by the follOWing vote
Ayes Councllmembers FeInstein, Genser, Holbrook, McKeown,
O'Connor, Rosenstein
Noes Councllmembers None
Abstain Councllmembers None
Absent Councllmembers None
ATTEST
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Mana M Stewart, City Clerk
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