City Council’s immediate end to no-just-cause tenancy terminations was a clear sign that the residential stability was a priority. As part of that deal, though, City Council created a new, lower standard for termination and defined a new City Hall process to terminate so-called ’disruptive’ tenants. How will it work? A two-member subcommittee of Council would hear a landlord request and render a determination. What’s more, Council appears ready to let a neighbor haul the tenant before the subcommittee for termination too.
The New Standard
The ‘disruptive tenant’ notion emerged when City Council put an end to no-just-cause terminations on October 18th. At that meeting, councilmembers agreed to create a new ‘disruptive tenant’ standard for terminating a tenancy. This is a different (and lower) standard than what is used by the courts. It is not clear why we need the new standard. Was it too difficult to evict for-cause? Landlords provided no support for their claim that the court process was too “onerous.”
Rates of court-ordered eviction provide no support for the notion that it is too difficult to evict for-cause even that is how it has been presented to City Council by some landlords.  Indeed the December 18th city staff report candidly notes that this proposed provision isn’t about unsuccessful court proceedings at all. “The disruptive tenant provision applies to both Chapter 5 and Chapter 6 and provides a remedy for housing providers to deal those tenants that housing providers stated were the subject their no-cause eviction notices.”
What this is is nothing more than a giveback to landlords who choose not to go to court or who feel that they can’t prevail in court when they try to evict on a nuisance complaint (the state standard).
Moreover, we have heard claims from landlords about “professional tenants” bilking landlords out of relocation fees; or holding the landlord ‘hostage’ by stretching out the process. But there has been no evidence presented to suggest that any number of tenants in Beverly Hills have gamed the courts. And relocation fees for most tenants have only been in effect for two years!
However City Council did hear from a particular landlord at nearly every public meeting about his brush with a problematic tenant some years ago. His story was bolstered by one of his tenants who appeared at each of those meetings. Perhaps the ‘disruptive’ tenant provision is an example of the “anecdotal policy-making” that landlords love to decry?
City Council nevertheless did unanimously adopt the following ‘disruptive’ tenant provision:
A landlord may bring an action to recover possession of an apartment unit if: (1) the tenant repeatedly or continually disturbs the peaceful and quiet enjoyment of one or more tenants who occupy other rental units in the apartment building where the tenant resides or (2) antagonizes, intimidates or bullies one or more tenants who reside at that apartment building (“disruptive tenant”) and the disruptive tenant does not cease the behavior when requested to do so by the other tenant(s) or by the property owner or manager of the premises. BHMC 4–6–5 subsection M(1)
And in a major break with the current rent stabilization ordinance this new policy also applies to Chapter 5 tenants. (Until now Chapter 5 tenants had the same protection against eviction as in nearly every other rent control city in California.)
Also, relocation fees will not apply because this new process is a for-cause termination. Read about it in the disruptive tenant ordinance.
Why develop a local standard? The state law includes a ground for eviction for ‘nuisance’ which is spelled out in the state Civil Code this way:
Any tenant, subtenant, or executor or administrator of his or her estate heretofore qualified and now acting, or hereafter to be qualified and act, assigning or subletting or committing waste upon the demised premises, contrary to the conditions or covenants of his or her lease, or maintaining, committing, or permitting the maintenance or commission of a nuisance upon the demised premises or using the premises for an unlawful purpose, thereby terminates the lease, and the landlord, or his or her successor in estate, shall upon service of three days’ notice to quit upon the person or persons in possession, be entitled to restitution of possession of the demised premises under this chapter. For purposes of this subdivision, a person who commits or maintains a public nuisance as described in Section 3482.8 of the Civil Code, or who commits an offense described in subdivision (c) of Section 3485 of the Civil Code, or subdivision (c) of Section 3486 of the Civil Code, or uses the premises to further the purpose of that offense shall be deemed to have committed a nuisance upon the premises. — Code of Civil Procedure Section 1161(4)
In contrast, the Beverly Hills ‘disruptive tenant’ standard includes grounds for termination that include antagonizing, intimidating or bullying tenants. Indeed any behavior that “continually disturbs the peaceful and quiet enjoyment of one or more tenants” is a ground for termination here.
Not only do these grounds fall short of the state’s ‘nuisance’ standard; they are vague! ‘Disruptive tenant’ is nowhere described in the large body of case law that applies to the existing ‘nuisance’ standard because it has not yet been adjudicated in the courts.
How will a local decision-maker apply the new ‘disruptive tenant’ standard? What does intimidation look like? And isn’t it plausible that an argument between tenants could devolve into accusations of intimidation? Plenty of tenants already complain about a neighbor who is inclined toward annoyance or aggravation. Feeling antagonized by your neighbors is part of life in the big city!
As for bullying, we as a society already have a difficult time deciding what it means in any context. But one thing is clear: bullying implies some sort of an imbalance of power. Doesn’t bullying already characterize the relationship between some landlords and their tenants? Where is the tenant’s recourse for a ’bullying’ landlord?
The most problematic aspect of the new ‘disruptive tenant’ standard is that it may now be easier for a landlord to prevail in court:
By creating this category a housing provider may file an unlawful detainer proceeding with the superior court to evict the tenant on the grounds that the tenant is disruptive. — November 6, 2018 staff report (p. 3)
The landlord need not use the local ‘disruptive tenant’ process but instead can go straight to court to petition for an eviction using this lower standard provided by City Council. The December 18th staff report notes that a tenant who does not vacate in response to a notice given with the city’s approval would face an unlawful detainer proceeding in Superior Court. At the lower-than-state standard.
A New Termination Process
To complement the new ‘disruptive’ ground for termination is a new local process for the tenancy termination. City Council agreed at the November 6th Council meeting to form a subcommittee to hear any landlord’s request to terminate a tenant. It happens right in City Hall! The landlord need not take the tenant to court:
The landlord or the landlord’s representative may, at the sole option of the landlord, file an application with the City and request that a subcommittee of the City Council make a determination that a tenant is a disruptive tenant….The subcommittee of the City Council shall be composed of two members of the City Council…appointed by the Mayor and serve for a two month term. At the end of the term and Mayor may reappoint one or both (or a new councilmember). — BHMC 4–6–6 (M)(2)
How it will work: the landlord or his representative will make a brief presentation and the tenant will respond. (Both may be limited to only 10 minutes at the discretion of the subcommittee.) The landlord then can rebut the tenant’s defense. Even though the tenant is on defense to keep her housing, the final word goes to — wait for it! — the landlord.
(Fun fact: the city recently enacted a policy in quasi-judicial deliberations just like this one where the resident has the last word. Why is it not included in these proceedings too?)
Then the subcommittee will deliberate. The two members must agree to terminate. Then the landlord may serve the tenant with an eviction notice. if they can’t agree, though, or if both members agree not to terminate the tenancy, then the landlord loses his bid. But gets another bite at the apple (or two!). He can appeal the determination in court under the Code of Civil Procedure. Or he can initiate an unlawful detainer in Superior Court under the lower standard and skip the appeal. Advantage landlord!
The tenant enjoys the opportunity to appeal, too, but she should be warned: the bar for an appellant is higher. A judge will focus on two issues: first, whether the process respected the law; and second, whether the determination was supported by the evidence.
The timeline for the entire process is intentionally abbreviated so as to be less onerous for the landlord than the courthouse.
- Within 10 days from filing of the application a hearing will be scheduled
- At least 15 days in advance of the hearing the tenant will be notified
- Within 5 days of the hearing a determination will be reached
- Within 2 days that decision is mailed to both parties with “written findings in support thereof”
A Few Caveats About the Process
Some important aspects and perhaps unintended consequences were not discussed by City Council. The Mayor alone is empowered to make the two subcommittee member appointments (each for a term of two months). He can also reappoint his members for successive two-month terms. Had City Council mandated committee member rotation there would be no opportunity that the same two subcommittee members could adjudicate termination applications for the duration of a Mayor’s one-year term.
And related: because there is no provision for randomized subcommittee member selection, the landlord will know in advance who will hear his case. He may anticipate how those appointees will lean relative to his argument. Then he can choose his venue accordingly: at his discretion he can pursue termination through this city process OR take the tenant directly to court.
Second, professional representation is allowed. “All parties to a hearing shall have the right to seek assistance in developing their positions, preparing their statements, and presenting evidence,” says the Municipal Code. On this account the tenant may fare no better than she will in court: her landlord comes armed with an experienced (‘quick-evict’) attorney who does this all day, every day. The tenant, if she is lucky, may undertake a do-it-yourself defense against eviction only once in her life.
The asymmetry of knowledge dooms many tenants in court. Many more don’t even ante up for the hearing. Instead they fold long before the courthouse. And there is zero data about how many for-cause terminations are pursued based upon specious claims or proxy reasons or grounds that simply have no support in the law.
Third, it is not clear if even a low-income tenant will benefit from help provided by one of the small constellation of nonprofit legal services firms that do pro bono work for tenants. Will any step up for a city (as opposed to court) process? Will our city’s contracted housing rights legal services provider Bet Tzedek step up for a tenant in this process? Again, none of this was discussed by City Council.
Finally, the plan is for ‘disruptive tenant’ terminations to be adjudicated by a future ‘rent commission.’ As Councilmembers quickly agreed at the November 20th meeting — with no discussion whatsoever — that 5-member commission will be dominated by homeowners. It would include one landlord, one tenant, and three “neutral members.” By exclusion those can only be homeowners; neither landlords nor tenants would qualify. Is homeowner status what would qualify them as “neutral” members?
The definition of ‘nuisance’ in case law would seem to speak to Council’s concern about the problem tenant. So there seems no need for a lower standard for termination that would apply only in Beverly Hills. No landlord provided support for a lower standard, after all. Indeed the bar should be higher, not lower, if we want to ensure that all tenants remain housed except for those who truly abuse the privilege of residing in rental housing.
Instead we have a new ‘one-strike’ policy: the landlord need only warn the tenant once to correct the ‘disruptive’ behavior. He can then haul the tenant before the subcommittee. Worse, City Council appears inclined to extend the termination process initiation to a tenant’s neighbors. (The provision is not yet in the Municipal Code.) The lesson that all tenants should heed: be good to your neighbors lest one of them decide to make an example out of you.
Extending the lower local standard for ‘disruptive tenant’ termination to the courthouse will have consequences too. Tenants already defend themselves against eviction for reasons other than what is stated by the landlord (aka ‘proxy’ evictions). A lower termination standard will swing open that door even wider by introducing new grounds like antagonism, intimidation and bullying (none defined precisely). Each is a potential proxy cause. And it started in Beverly Hills but empowers the landlord in the courts too.
Finally there are some unknowns. City Council didn’t discuss the appeals process. How would that work for tenants? How long would the tenant have to appeal? Can the landlord file for an unlawful detainer immediately, prior to a hearing on the appeal? How much will an appeal cost the tenant? Will the tenant pay for the landlord’s attorney if the city’s determination is upheld on appeal? No answers are on offer because none of it was discussed before Council adopted the ‘disruptive tenant’ termination policy.
[This post has been updated to reference the December 18th staff report.]
- The HR&A Advisors policy memo presents data collected by Princeton’s Eviction Lab and counts only court-ordered evictions. The city’s consultant HR&A Advisors point to data that show about 1-in–200 tenants were ordered evicted by the court in 2016 for any reason. Presumably the likely reason was nonpayment of rent. The data only show the total number of court-ordered for-cause evictions (48 in Beverly Hills that year) but do not measure the rate of success in unlawful detainer actions. And that data counts only evictions not sealed by the court and does not count evictions allegedly for-cause that did not even go to court. ↩
- Section 1094.5 of the California Code Of Civil Procedure related to appeals and indicates that reconsideration of the City Council subcommittee decision would fall to a judge (not a jury). The key questions are whether the subcommittee abused its discretion (did it proceed in the manner required by law); and is the determination supported by the findings? The court could then rule for either party or require reconsideration by the Council subcommittee. ↩