Landlords and property managers should not get lost in translation
There is newly introduced legislation under the dome of the Capitol that would mandate lease-guarantor disclosures be conveyed in five languages. Before we voice our opposition to SB 633, some background is in order and this gives us a good opportunity to briefly cover the laws and best practices when beginning and continuing rental relationships when there may be a communication barrier.
Generally speaking, for an agreement to be legally enforceable, the parties must understand what it is they are agreeing to. This is why California Civil Code § 1632, dubbed the California Translation Act, mandates that when certain tradespersons or businesses negotiate a contract in non-English languages, the merchant must furnish a translation of the contract terms and conditions in the native tongue of the non-English speaking party before the contract is executed.
An incompetent or improperly assigned translator will invite disputes later on. Be sure that the translator is one who is reliable. If the translator does not check certain boxes, the misinformed tenant can rescind the lease.
All too often, we have seen landlords and property managers make an ill attempt at interpreting themselves or trusting the assistance of someone who knows a little bit of the tenant's language but is not fluent. We want you to know that a poor selection of a translator can lead to disputes down the road.
We also want you to know that minors cannot serve as a translator. An English-speaking child who answers the door and serves as an impromptu intermediary won’t suffice because of the child’s lack of sophistication and, perhaps, understanding of all the terminology.
The translator cannot be a hired hand or agent of the landlord, and he or she must be fluent in both languages spoken between the parties.
Moving onto SB 633 and third-party guarantors
It’s well established that rental housing providers cannot discriminate based on the tenant’s source of income, such as Section 8 vouchers and other third-party payments.
Many landlords feared that accepting third-party payments would inadvertently create a tenancy with the payor. So long as the payor signs an acknowledgment stating that they are not currently a tenant of the premises and that acceptance of the rent payment does not establish a new tenancy, these concerns are assuaged. We have the form prepared.
Guarantors, on the other hand, essentially serve as a co-signer on a loan. It gives landlords peace of mind knowing that if a high-risk tenant cannot pay the rent, the guarantor can fulfill the obligation of paying rent.
SB 33 would mandate lease guarantor disclosures in Spanish, Chinese, Tagalog, Vietnamese and Korean when the property owner has a mere suspicion that the lease guarantor is not proficient in English.
This requirement kicks in when the landlord “knows or has reason to know” that the guarantor is not fluid in English. In reality, the guarantor may never speak with the guarantor, much less meet them.
Nonetheless, says the California Apartment Association, landlords would “be responsible for this elevated standard of care. Therefore, the ‘know or would have reason to know’ standard will be used against the landlord if the landlord fails to provide the disclosure based on merely an assumption about the prospective tenant.”
CAA recommends the disclosure requirement only apply in instances when the landlord negotiates primarily in one of the five languages listed, a standard that has long been in place.
Bornstein Law concurs that landlords and property managers already operating in a complicated regulatory regime should not be faced with yet more requirements and asked to be a linguist by guessing the English proficiency of a guarantor.
It is no surprise that California has the largest proportion of foreign-language speakers. In fact, Census Data reveals that more than four in 10 Californians aged five and older don't speak English at home. We have to ensure that all tenants are cognizant of their rights and responsibilities.
Otherwise, the tenant can walk away and rescind the lease without penalty.