Putting nuisances into context in light of new state law

A new California law bans local “nuisance property” laws and “crime-free housing” programs that have emboldened landlords to act as their own police force and evict tenants for vaguely defined criminal activities. We wholeheartedly support the law, but point out that landlords can still terminate tenancies based on nuisance activities and, absent any local restrictions, can still conduct criminal background checks.

The Golden State always has been a pioneer in enacting laws with societal impact and in another first-in-California moment, AB 1418 prohibits local governments from requiring housing providers to evict tenants because of calls to law enforcement, a mere hint of suspected criminal activity, and other alleged nuisances.

It also bans municipalities from requiring or encouraging landlords to conduct criminal background checks and also says that an entire family cannot be evicted due to a felony conviction of a single family member.

There is a mountain of evidence that suggests these types of now-banned anti-crime housing ordinances disproportionately target low-income and minority renters for eviction, violate their civil rights, and particularly harm survivors of domestic violence. The consensus is that these policies not only fail to reduce crime; they are a breeding ground for even more crime as people are wrongfully displaced and residents fear seeking the help of the police lest they lose their housing.

In distant memory, we recall that under Oakland’s anti-loitering ordinance, several residents were purportedly afraid to gather outside in their yards or risk being stopped, handcuffed, or fined for acts such as sitting in a lawn chair, getting fresh air, or having a family barbeque.

In the words of Jude Pond, then an attorney with the Lawyers’ Committee for Civil Rights of San Francisco, the overstepping ordinance was to maneuver residents and guests, telling them “they can’t be where they are, they have to leave, and they can’t associate with friends and family in public spaces.” The group joined the ACLU in suing the Oakland Housing Authority in federal court claiming the law was vague, unconstitutional, and unfairly criminalizes people of color.



The law does not prevent housing providers from addressing nuisance behavior head-on. 

In our nearly 30 years of being injected into landlord-tenant disputes, we have a good gut feel for what constitutes a nuisance, a legal term used to describe certain activities or behaviors by tenants and others that interfere with the peaceful enjoyment of neighboring tenants. All manner of conduct can cause a disturbance, annoyance, or harm to others in the vicinity. This can range from playing loud music at night to setting fire to a unit, and everything in between.


Often, the problem can be fixed with a simple reminder or warning. 

Once told that a resident downstairs has to wake up early in the morning, the tenant, hopefully, will lower the decibels of their music. When hot-headed neighbors get into an argument about doors being slammed, we hope that it gets soothed over and the tenant closes the door gently. When someone fixing their car has parts spilling over into someone else’s parking space or is using power tools at late hours, we hope that the backyard mechanic gets the message that this conduct is unacceptable, but simply hoping is not an ideal landlording strategy.


When there is acrimony in a rental relationship, please don't be a conflict-avoider. We've found that being fearful and thinking about broaching a frank conversation with a problematic tenant is more stressful than actually having the conversation.


Don’t let the issue enlarge and hope that the problem will resolve itself on its own.

From our hard-won experience, many landlords are conflict-avoiders and would rather kick the can down the road and let problems fester. When there is friction in rental units, it must be addressed without delay or the issue can spiral out of control.

As one example, during the height of the pandemic when courts were not hearing eviction cases except for the most egregious of circumstances when there was a threat to public health and safety, we were able to obtain a judgment when a downstairs tenant got so enraged with an upstairs neighbor that he smashed out the door window with a crowbar. Suspected drug use goes ignored and someone overdoses on fentanyl and dies when sitting on a toilet. A domestic dispute where the aggressor grabs his girlfriend’s head by the hair and throws her into a stove creating a brain hemorrhage. A gun is discharged in a building.

The list can go on, but suffice it to say that when housing providers ignore a threat, they can face colossal liability because the problem could have been nipped in the bud. The foremost obligation of landlords is to provide safety and ensure the well-being of residents.



Menacing behavior is one of severity. Can a nuisance be cured or not?

In instances of violence, threats of violence, drug dealing, stealing of packages, prostitution, arson, and the like, the tenant has forfeited their ability to live in that community of other residents and our office is aggressive in serving 3-day notices to quit, meaning the tenant has to vacate. If they don’t, we will proceed with an eviction action. When the threat posed to neighboring residents is so serious, the offender cannot be given the opportunity to clean up their act.

Many residents who have witnessed illegal behavior are afraid to come forward for fear of retaliation - they don’t want to be a “snitch” - and their concerns can be assuaged knowing that when we file an unlawful detainer action, we do not have to name them. Most eviction cases settle, so chances are witnesses will not have to testify, and we’ve learned that once bad actors are served a notice to quit and light is shone on their activities, they do not want to stick around - they’ll take their criminal enterprise elsewhere.

Properly drafting a notice is critical. Even if there is incontrovertible evidence of a nuisance, you can still lose an unlawful detainer action if the notice is improperly prepared or served.

Remember that in an eviction action, the landlord has the burden of proving that the tenant has breached the lease. Many housing providers are accustomed to filing 3-day notices for failure to pay rent but fumble with notices when the theory for eviction is a nuisance.

There needs to be a fact pattern stated, with some specificity. We can’t tell you how many times we have seen inartful, generic notices with statements like, “You are creating problems for other tenants,” “You have too much garbage,” or, “You are harassing neighbors.” We’d like more detail and we are sticklers for documentation. Accounts from neighboring tenants are ideal, which is a good segue into our next point.


Defenses to a nuisance eviction action

The most common defense is that it never happened - the defendant didn’t commit the nuisance. This is why we’d like to see some supporting evidence. Another defense is that the transgression is minor and doesn’t warrant the displacement of the tenant. The tenant will admit they were wrong but argue that it’s not serious enough to be evicted.

Another defense we are seeing increasingly is that the tenant has a mental health disability and is entitled to a reasonable accommodation under a cornucopia of fair housing laws. For example, a tenant engaging in hoarding conditions asserts that their hoarding behavior constitutes a disability and requires extra time to cure the violation by hiring a cleaning service and working with Adult Protective Services or other mental health professionals to stop accumulating stuff (even though we know this condition has a high recidivism rate).

Another example: Someone with schizophrenia is screaming at all hours of the night disturbing other residents. Their attorney can ask that their client be allowed time to stabilize their medication, be moved to another part of the building, or insulation be added to muffle sounds.


Parting thoughts

When there is dysfunction in society, it will inevitably spill into rental units and we have to proactively address it. While other law firms may not have the stomach or the ability to handle problematic tenants, Bornstein Law is comfortable managing thorny situations


Request a consultation