Leaders of the pack

Ever since Councilwoman Malia Vella joined Marilyn Ezzy Ashcraft and Jim Oddie on the dais in 2016, the Council majority (which now includes John Knox White) has been trying to implement the “progressive” legislative agenda in Alameda.

The Council cabal usually has succeeded, but so far its success has had a bit of a “me, too” (and we don’t mean #MeToo) quality, since politicians in other cities have done as much or more.

That will change Tuesday night.

If all goes as planned, Council will pass an amendment to the City’s rent stabilization ordinance removing the “no cause” provision it currently contains and thereby converting it into a full-blown “just cause” law.

When that happens, the Council majority can truthfully boast that the City of Alameda will have gone farther than any other jurisdiction in the Bay Area to carry out the “progressive” goal of keeping renters in their apartments.  In fact, under the local ordinance as amended, it will be more difficult for a landlord to evict a tenant in Alameda than in almost any other Bay Area city that has adopted a “just-cause” ordinance.

By our count, 11 other cities (and the unincorporated portion of one county) in the Bay Area have passed such ordinances:  Berkeley, East Palo Alto, El Cerrito, Emeryville, Hayward, Mountain View, Oakland, Richmond, San Francisco, San Jose, Union City, and Marin County.

The defining feature of a “just-cause” ordinance is that the grounds it lists for terminating a tenancy are the only permissible grounds.  If a landlord cannot prove in court by a preponderance of the evidence that one of them exists, the request for a court order to recover possession of the premises will be denied.

After Council votes Tuesday, the Alameda ordinance will stand out in three respects.

First, the “just-cause” requirement will apply to all rental properties on the island regardless of occupancy or number of units.  Of the 12 other Bay Area jurisdictions with just-cause ordinances, the majority either exempt owner-occupied residences or cover only rental property with three or more units.  (The El Cerrito ordinance is even narrower; it applies only to rental properties with five or more units).  At its May 21 meeting, the Council majority overrode an impassioned plea by Councilman Tony Daysog and voted, 4-1, not to recognize any similar exceptions in Alameda.

Second, once the no-cause provision is stricken, the Alameda ordinance will list only nine permissible grounds for termination.  This is fewer than all but two of the other Bay Area jurisdictions with a “just-cause” ordinance.  Indeed, other cities set forth as many as 16 (San Francisco), 15 (Hayward), 14 (East Palo Alto and Emeryville), and 13 (San Jose).

Third, like every one of the other ordinances, the Alameda ordinance permits termination of tenancy if the tenant has failed to pay rent, breached the lease, or refused access to the rental unit.  (The precise language varies from city to city.)  But it does not identify any specific misconduct by the tenant that also would justify eviction.  As a result, it appears that an Alameda renter can commit a host of anti-social acts without fear of losing his apartment.

Elsewhere in the Bay Area, cities with just-cause ordinances have spelled out certain misbehavior by a tenant that will constitute grounds for terminating a tenancy.  For example, in El Cerrito, Emeryville, and Union City, a landlord is permitted to evict a tenant who has “created or is maintaining a dangerous and unsanitary condition” (as defined by federal, state, or local law) that has not been “promptly abated or repaired.”  Similarly, in Marin County and Hayward, a landlord is permitted to evict a tenant who has threatened to commit a “crime which will result in death or great bodily injury” against another person on the premises (including a fellow tenant and the landlord or its agent).

The Alameda ordinance contains no equivalent provisions.  Does this mean that an Alameda renter who leaves her garbage in the hallway for weeks or threatens to kick her neighbor’s ass gets to stay in her apartment as long as she continues to pay rent?  It sure looks that way.

Likewise, the ordinances adopted in six Bay Area cities as well as Marin County permit a landlord to terminate the tenancy of a renter who has engaged in “disorderly” conduct.  For example, in Berkeley, Hayward, and Oakland, a tenant who has “continued, following written notice to cease, to be so disorderly as to destroy the peace and quiet of other tenants or occupants of the premises” is subject to eviction.  Similarly, the ordinances in East Palo Alto, Mountain View, San Jose, and Marin County authorize eviction based on “disorderly” conduct that “destroys” the “peace, quiet, comfort, or safety” of not only other tenants but the landlord as well.

The Alameda ordinance contains no equivalent provision.  Does this mean that an Alameda renter who plays her stereo at full volume after midnight gets to stay in her apartment as long as she continues to pay rent?  It sure looks that way.

Let us be quick to point out that we are not saying that the Alameda rent stabilization ordinance doesn’t contain any provision addressing tenant misbehavior.  It does.  But the provision is so broadly, and vaguely, worded that a judge might well decide it cannot be used to justify an order for the recovery of rental property.

The relevant section is entitled, “Nuisance.”  A landlord is permitted to terminate a tenancy where

[t]he Tenant has continued after the Landlord has served the Tenant with a written notice to cease to commit or expressly permit a nuisance on the Rental Unit or to the common area of the rental complex or to create a substantial interference with the comfort, safety or enjoyment of the Landlord, other Tenants or members of a Tenant s household or neighbors provided however a Landlord need not serve a notice to cease if the Tenant’s conduct is illegal activity, has caused substantial damage to the Rental Unit or the common area of the rental complex or poses an immediate threat to public health or safety.

This provision does not give much guidance either to tenants or landlords about the specific misconduct that would permit a landlord to terminate a tenancy.  A lawyer may know what constitutes a “nuisance” under California law, and, if he has his copy of the CACI jury instructions handy, he can find out what he must prove to establish that one exists.  But not all landlords or tenants are members of the bar.  The additional language about “substantial interference” doesn’t make things any clearer.  Indeed, that phrase renders the section virtually tautological, since “interfere[nce] with the comfortable enjoyment of life or property” already is part of the definition of “nuisance” under Civil Code section 3479.

But what about “illegal activity,” “substantial damage,” and “immediate threat to public health and safety”?  As drafted by the City Attorney, all the ordinance says that a landlord is not required to “serve a notice to cease” in these three situations.  It does not say that a landlord is permitted to terminate the tenancy on any of these grounds.  Moreover, it does not specify what kind of acts each phrase encompasses.

Again, a comparison with the “just-cause” ordinances adopted elsewhere in the Bay Area is instructive.

Use of a rental unit for an “illegal purpose” is listed as a discrete ground for terminating a tenancy in six Bay Area cities as well as in Marin County.  But in almost all of those jurisdictions the ordinance describes the illegal conduct that could trigger eviction.  For example, in Oakland, it’s the “manufacture, sale, or use of illegal drugs”; in Hayward, it’s the “manufacture, sale, distribution, possession, or use of a controlled substance”; in
El Cerrito, Emeryville, Union City, and Marin County, it’s the “unlawful distribution of a controlled substance,” plus the “unlawful use, manufacture, or possession of weapons and ammunition.”

If we were representing a tenant, we’d argue that the failure of the Alameda ordinance to be plainer and more precise is a fatal flaw.  Absent the sort of clarity and specificity found in ordinances adopted by other cities, the Alameda law doesn’t give fair notice to a tenant of what she must refrain from doing in order to avoid eviction.  If a judge agreed, “illegal activity” – and perhaps also “substantial damage” and “immediate threat to public health and safety” – would disappear from the list of permissible reasons for terminating a tenancy in Alameda.  In that event, it would be hard to imagine what acts by a tenant would subject her to the risk of eviction.

At the May 21 Council meeting, Planning Board member Alan Teague presented a proposal to add another item to the list of permissible grounds for terminating a tenancy:  He suggested that violation by a tenant of the terms of a lease three times over a 12-month period should constitute “good cause.”  “Nobody should be kicked out of their home just so that the landlord can raise the rent,” Mr. Teague told Council.  “But equally, nobody should be able to stay in a place regardless of their bad behavior.”  Needless to say, that wasn’t a sentiment the Council majority sympathized with, and they gave Mr. Teague’s proposal short shrift.

Did the Council majority intentionally decide to thrust the City of Alameda to the forefront among the Bay Area cities that have enacted “just-cause” ordinances by keeping the permissible grounds for terminating a tenancy limited in number and vague in content?  We have no evidence to suggest that it did.  Indeed, we doubt that any of the Council members actually reviewed the ordinances adopted by other jurisdictions.  (And the staff report didn’t contain that information, either.)  But they did know that their vote will make the Alameda ordinance better for tenants and worse for landlords.

That was probably good enough if politics was what mattered most to those controlling Council.  The majority of Alamedans are renters:  53% of the total occupied housing units on the island were renter-occupied in 2017, according to the American Community Survey.  And although doubt remains about voter participation rates among tenants, the local groups that claim to represent renters – the Alameda Renters Coalition and the Filipino Advocates for Justice, to name two – speak with a loud voice and carry a big stick.

Consider the story of Mr. Oddie’s about-face on the issue of “just cause.”  If you watch the video of the Council meeting on April 4, 2017, you’ll see the Councilman launch into a soliloquy questioning the need to amend the rent stabilization ordinance to require “just cause” for terminating a tenancy.  “Where’s the crisis?” he asks.  But then, as other Council members are speaking, Mr. Oddie checks his laptop and sees he has just received an email from Eric Strimling, one of the leaders of the Alameda Renters Coalition, who was sitting in the front row of Council chambers.  The Councilman then proceeds to read the email to his colleagues.  “COWARD,” it is headed, according to Mr. Oddie.  “You had better move all the way right because you just lost the tenant vote.  Alameda Renters Coalition just became your adversary in 2018.  I hope the CAA [i.e., California Apartment Association] money compensates you.”

At the time, Mr. Oddie irately condemned the message as “political blackmail” and insisted that such tactics would not influence his vote.  But, lo and behold, when Council reconvened three days later, Mr. Oddie apologized for his comments and moved to direct staff to draft an amendment imposing a just-cause requirement, the very action he so recently had questioned the necessity for.  The Councilman reiterated his endorsement for “just cause” a month later – “I would rather be on the side of justice,” he now proclaimed – and when staff presented a draft, he was its most ardent champion.  Thereafter, “just cause” became not only his preferred nickname but also the theme of his re-election campaign.  And guess what?  ARC did not turn out to be his “adversary” after all.

And Mr. Oddie continues to lead the charge without regard to facts, law, or common sense.

At the May 21 Council meeting, he began his remarks by claiming that 57 families had been “displaced” from Alameda as the result of “no-cause” terminations.  In fact, all the statistics presented by staff showed was that 57 no‑cause terminations had been reported in fiscal years 2016-17 and 2017-18.  But it is by no means clear that all of the tenants affected by these terminations don’t “have an opportunity to live here anymore,” as Mr. Oddie asserted.  Indeed, under the rent stabilization ordinance, these tenants were entitled to, and presumably did, receive relocation payments.  It is implausible to believe that, in every one of the 57 cases, the relocation money went toward a new apartment located outside Alameda rather than one on the island.

Mr. Oddie continued with an argument that left us shaking our heads in confusion.  A total of 57 no-cause terminations in two years wasn’t that many, he said.  This meant that landlords were exercising their statutory right infrequently.  If so, it must not be important to them.  And therefore why preserve it?  But if the legitimacy of a right depends upon the frequency of its exercise, there are a whole lot of rights that would be chucked aside under Mr. Oddie’s “reasoning.”  Very few people wave political placards on street corners.  So maybe those folks who show up on the corner of Park and Santa Clara every Saturday have no right to do so and ought to be arrested.

Mr. Oddie’s final argument also left us shaking our heads – in astonishment.  Housing, he asserted, “is a basic human right.  Period.  End of sentence.  Stop.  And if that right is going to be taken away from you, you need due process.  Our Constitution demands that, and I think our values demand that.”

For a while, we’ve been laboring under the impression that an argument premised on “basic human rights” relied on a widely accepted historical source such as the Declaration of Independence, the Bill of Rights, or even the Universal Declaration of Human Rights passed by the United Nations General Assembly in 1948.  Now, we realize that a “basic human right” is anything that a “progressive” politician says it is.  Google that phrase and you’ll see what we mean.  (FYI, you may be surprised to learn – we were – that “Internet access” now is considered a “basic human right” in some circles.)

So be it.  But the due process clause of the Fifth Amendment applies only to actions taken by the federal government, and the due process clause of the Fourteenth Amendment applies only to actions taken by state governments.  Neither provision, on its face or as interpreted, governs private conduct.  A landlord owes no legal duty to give a tenant “due process” when it terminates a tenancy any more than Twitter owes a duty to give a user “due process” when it blocks an account.

And, in fact, a tenant facing eviction does get “due process” – from the state actor that exists to provide it:  the Superior Court.  A landlord can’t just call up the County sheriff and ask him to send deputies to remove a tenant.  The sheriff will demand a court order, and, to obtain one, the landlord will need to file an unlawful detainer action and prove her case at a trial at which the tenant can raise affirmative defenses based on, among other things, the Fair Employment and Housing Act.

Every law student who has taken con law ought to know what the constitutional guarantee of due process means, and the professors who taught Mr. Oddie at the University of San Francisco Law School would be appalled to find out he doesn’t.  Or maybe Mr. Oddie does know the law and simply doesn’t care if he is misstating it.  As Donald Trump has demonstrated, a politician can throw accuracy to the winds as long as his base eats up the BS he is slinging.

When the amendment to the rent stabilization ordinance passes Tuesday night, the Council majority will be able to bask in the acclaim of tenant activists and brag about their achievement to “progressives” across the state.  Indeed, if the Council members want to be uncharitable, they could even gloat that they’ve outdone Assemblyman Rob Bonta, whose bill to impose a “just cause” requirement statewide didn’t make it onto the Assembly floor.

But it will then fall to those in the trenches – Alameda landlords and renters – to live with the consequences of the politicians’ triumph.

“Just cause” ordinances:

Alameda: Ordinance 3148; 2019-05-15 Ordinance – Redlined

Berkeley: Berkeley just cause ordinance

County of Marin: County of Marin just cause ordinance

East Palo Alto: East Palo Alto just cause ordinance

El Cerrito: El Cerrito just cause ordinance

Emeryville: Emeryville just cause ordinance

Hayward: Hayward just cause ordinance

Mountain View: Mountain View just cause ordinance

Oakland: Oakland just cause ordinance

Richmond: Richmond just cause initiative

San Jose: San Jose just cause ordinance

San Francisco: SF rent ordinance – just cause provisions

Union City: Union City just cause ordinance


About Robert Sullwold

Partner, Sullwold & Hughes Specializes in investment litigation
This entry was posted in City Hall, Housing and tagged , , , , , , , . Bookmark the permalink.

4 Responses to Leaders of the pack

  1. Steve Gerstle says:

    You may have referenced the wrong sixties pop tune.

    Instead of Leader of the Pack,

    It should be
    The In Crowd,

  2. Tawney says:

    I am appalled that our community has been co opted. Citizens are asleep.

  3. Eric Strimling says:

    Thanks for the shout out!

  4. John Jay says:

    look on the bright side; nobody will ever again build or invest in rental housing in Alameda; the existing stock will slowly disintegrate and then be abandoned; property values will plummet; vagrants will flock to Alameda from the four corners; crime will skyrocket; and then our beloved Jim Oddie will be elected Mayor-for-life!

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