It’s only the latest development in an unrelenting list of setbacks for landlords.

As first reported by Oaklandside, the Oakland City Council has approved a $1 million contract to keep Oakland Housing Secure afloat. This eviction defense program is run by nonprofit Centro Legal de la Raza and other legal aid organizations we know well at Bornstein Law because at any given time, we are in constant litigation with them.

Normally, these free tenants’ attorneys rely on funding from the Affordable Housing Trust Fund, but that pot of money is running dry in Oakland’s precarious budget crisis. Now, the tenant legal aid program will tap into the city’s Vacant Property Tax approved by voters in 2018. This punitive tax punishes owners of any privately owned property in the city that is not "in use."

The policy behind this is that if owners do not use residential, commercial, and empty lots for the greater public good, there should be a price to pay.

Act one: The owner pays a tax on parcels deemed “in use less than 50 days during a calendar year.” 

There are many flaws in this law and we haven’t been a Johnny-come-lately on this subject. Back when the law went into effect, we said that owners have been saddled with an inordinate amount of blame for unused or blighted properties and that a better course of action would be to remove maddening relations that stand in the way of building on vacant land. 

Act two: Oakland lawmakers then use those funds to pay for tenants’ attorneys to further punish landlords by dragging out the eviction process.

By being a matchmaker between aggrieved tenants and legal counsel appointed to represent renters, the city has enacted a regulatory regime that delays eviction, ratchets up the cost of litigation, and possibly gives disgruntled tenants the ability to sue the landlord. 

Litigators, please stand up. Why is Oakland’s vacancy tax still on the books?

Counties and cities throughout the Bay Area like to play a game of “follow the follower.” When it comes to enacting increased tenant protections and anti-housing policies, we can’t give many lawmakers an A for originality.

When some ordinance is passed, a neighboring locale takes notice and puts forth a similar ordinance, if not a carbon copy.

San Francisco's vacancy tax has been invalidated and the same reasoning should be applied to Oakland.

Following in the footsteps of Oakland, San Francisco voters approved the Empty Homes Tax in 2022, requiring owners of apartments and condos to pay a tax on units vacant for more than 182 days in a calendar year, with owners not in good graces with the city having to get out their wallets in 2025.

Fortunately, this ordinance was struck down after a handful of housing providers and their industry partners challenged its constitutionality.

After all, if you own something - whether it is a bicycle, a car, real estate, or anything else - it stands to reason that you can use it, or choose not to use it because it is yours. This common sense prevailed in San Francisco and we are curious why this logic has not been embraced by courts elsewhere.

What, exactly, is the job description of a tenant attorney anyways? 

The easy answer is to prevent evictions and ensure housing stability, hold landlords accountable for substandard conditions and harassment, and to guarantee that grandma and other vulnerable individuals are not thrown out into the streets to fend for themselves because of the unscrupulous or illegal conduct of housing providers.

Nobody can be painted with a broad brush. Bornstein Law has always maintained that there are good tenants and bad tenants. Likewise, there are good landlords and bad landlords. There is an abundance of tenant protections well established under the law, and tenants’ attorneys play a valuable role in enforcing these rules and bringing concerns to the forefront of an eviction case.

Where we take exception is when the tenant’s counsel purposely drags out an already elongated eviction process by asserting defenses that have no merit. Attorneys are not doctors, but would it be a stretch to say we still take a Hippocratic Oath to do no harm? 

Rule 3.2 of the California State Bar’s Rules of Professional Conduct states that in representing a client, “a lawyer shall not use means that have substantial purpose other than to delay or prolong the proceeding or to cause needless expense.” Yet this is what our firm is faced with every day. There are a myriad of demurrers and stalling tactics that tenants’ attorneys employ.

Oakland has made it easier to air out grievances with their landlord.

The Oakland City Council has recently elongated the time for tenants to petition the Rent Board to challenge rent increases and argue for a decrease in rent due to a loss of service and/or code violations related to repair issues.

Previously, tenants covered by the Rent Adjustment Program (RAP) had 90 days to initiate a petition, but it is now 120 days. This gives renters a larger window of opportunity to make a case against their landlord, whether there is any merit or not.

This allows more time for tenants and their legal counsel to allege habitability issues, a favorite gambit of tenants’ attorneys to prolong an eviction action and force landlords to settle.

Our strong advice is as follows.

Fix habitability issues without delay: As soon as concerns are expressed to the landlord, prompt action should be taken to resolve them. If no action is required, the tenant should be informed that the request is acknowledged. If the landlord denies the repair request, the reason should be given in writing. Keep in mind that even if the tenant caused the issue through their own negligence, it is generally better for the landlord to fix it and later demand that the cost be reimbursed, rather than to ignore the problem and be accused of being a deadbeat landlord who allowed substandard conditions to continue to exist.

Require that all repair requests be made in writing: Unfortunately, many tenants facing eviction will claim that their landlord failed to keep the rental unit in habitable condition without alerting the landlord that there is an issue. We want to build the narrative that the tenant had an obligation to report a problem and failed to do so.

Require that the tenant maintain renters insurance: In the event that the unit is not fit to live in and/or personal possessions are damaged or lost, a renters insurance policy should make the tenant whole, as well as pay for any temporary relocation assistance if repairs necessitate that occupants leave the premises.

Document all correspondence with tenants: If a landlord-tenant dispute occurs, we want to show that the landlord has been communicative, was responsive to requests, and did not let the rental unit atrophy.

Register rental units subject to the Rental Adjustment Program (RAP) fees and stay current on business taxes: Under Oakland’s regulatory regime, landlords will lose substantial rights if they are not in good graces with the city. The same can be said for other jurisdictions throughout the Bay Area.

Parting thoughts

Traditionally, we’ve thought of San Francisco and Berkeley as being home to the pernicious landlording regulations in the Bay Area, but over time, Oakland has vied for the title of being the most cumbersome place to operate a rental housing business.

By tethering yourself to Bornstein Law, you can make sense of maddening regulations and power through your real estate challenges.