Oakland tinkers with its Rent Ordinance and Rent Adjustment Program regulations once again
Just in time for the holidays, Oakland lawmakers gave rental property owners a gift: new regulations to comply with and additional tenant protections.
We laid out the agenda for tenants’ advocates in our earlier article and thought it was a foregone conclusion that all measures would sail through the City Council. With District 6 Councilmember Keven Jenkins abstaining, the rest of his colleagues gave the thumbs up to a series of new regulations.
Before we review the new rules, we have to ask whether there was any transparency in how this process played out.
According to the Rent Board, there was an exploratory process to suggest modifications to the city’s rent regulations that spanned at least 12 months beginning in fall 2022, with finalized recommendations to the City Council occurring within the last month and a half.
Our friends at the East Bay Rental Housing Association (EBRHA) take exception, saying they were blindsided by the final product presented to lawmakers at an October 19 Rules and Legislation Committee meeting and were never contacted for input during the preceding 12 months. Rather than letting housing providers chime in on proposed changes, the agenda was buried in an obscure section of the Rent Board’s website with no concerted effort to reach out to housing providers.
We can relate. Short of placing a billboard on the front lawn of every rental property, there have been vigorous campaigns to educate tenants on their rights, with little endeavor to alert landlords about changes to the law.
There were also concerns about how to submit public comments, EBRHA says, with housing providers effectively muted from the City Council’s discourse in light of new procedures for submitting a public comment.
Double standards? Let's review what additional tenant protections the City Council has approved.
When the landlord wins in a Rent Board hearing, the tenant need not show up when they appeal.
There are weighty matters in Rent Board petitions. Think rent increase petitions, tenants claiming a decrease in services, and landlords arguing for a fair return on their investment and attempting to pass through capital improvement costs. Other issues abound.
It’s an axiom in the law that when airing out grievances, both parties need to show up. To use an easy example, when an eviction action is filed, we may be able to obtain a default judgment when a tenant doesn’t timely respond to a complaint. The defendant forfeits their right to contest the case. This applies to any other lawsuit, for that matter.
We are not criminal attorneys, but another example is when someone is charged with a crime, they are given a date to appear in court. If they fail to appear, the judge will likely issue a warrant for their arrest.
Oakland has defied this conventional wisdom by allowing an appellant to skip appearing for the appeal.
Remove the requirement that the tenant be current on rent to file or respond to a petition.
Even though the tenant is not fulfilling their obligation to pay rent, they are nonetheless given preferential treatment and are entitled to the full suite of protections afforded to them under ordinances.
It’s been said by policymakers that a tenant’s payment of rent “does not fall within the scope of the Rent Ordinance and should therefore not be used as a requirement to access adjudication on matters that are regulated by the Rent Ordinance.” In plain English, this means that the Rent Board makes no distinction whether the tenant is paying rent or not. The board will consider the nonpaying rent as equal.
Housing providers, on the other hand, are not held to the same standard. Landlords must register with Oakland’s rent registry and be current on their RAP fees, along with the business license fee.
In other words, tenants who do not pay rent can avail the full resources of the Rent Board, while landlords who are not in good graces with the City will have no ability to squawk or respond to tenant complaints.
Extend the restitution period for decreased housing service petitions from 90 days to three years.
Decreased housing service and a change in lease terms are tantamount to a rent increase in the eyes of the Rent Board.
The tenant can argue that there was a reduction in the level of services or amenities that were explicitly or implicitly included in the rental agreement. When the tenant is deprived of something they were entitled to, the reasoning goes, they should be compensated. This can be a broken dishwasher, storage space that has been taken away, a broken window, or suddenly having to pay for utilities - it can be many things - and the disgruntled tenant can petition the Rent Board to be made whole.
Along with our industry partners, the issue we have with this is a lack of any mechanisms to document the acts of landlords responding to tenant grievances. One perilous possibility is that a tenant can claim the landlord neglected the unit when in fact the landlord was never notified about any defects or service reductions. You’ve heard the term, “if it’s not broke, don’t fix it,” to which we might add, if we don’t know it’s broke, it can’t be fixed. Imagine if everything is going along just fine and 35 months later, the tenant cries foul and the landlord is now responsible for paying a huge sum of money back to the tenant.
Policymakers have assured housing providers that Rent Board decisions are determined on a case-by-case basis and that the burden of proof is on the tenant to show that he or she has been deprived of housing services, but we still feel uneasy about this change.
Some takeaways
One of our New Year resolutions for landlords and their agents was to maintain the unit in habitable condition and while not ignoring oral requests, require in the lease that repair requests be made in writing. Oakland’s new regulatory regime emphasizes the importance of this. We want to tell a narrative that the landlord has been on top of maintenance and timely responds to tenant concerns. Ideally, there should be a paper trail.
We’ve always said that housing providers and their agents need to be the eyes and ears of their property and inspections are all the more important in Oakland now, again to show that the owner or their property manager is attentive to the condition of the property. Of course, the landlord can only enter the premises with a permissible purpose, and barring an emergency, with proper notice.
If any laggards are not current on fees or have not registered their rental unit, now is the time to pay dues and register. As a sidebar, the 2024 date to check in and make an update to Oakland’s rent registry has been bumped up from March 1st to July 1st. Apparently, there is some technical difficulty and the IT wizards need more time to work out kinks. We’ve always said that these types of registries is an expensive and complicated undertaking and Oakland has put an exclamation point on that.
In every time and era, we urge landlords to follow the law to the tee, but now it is even more vital to comply. Whenever there is any doubt, contact Bornstein Law.