City Allows Landlords to Terminate ‘Disruptive’ Tenants

November 8, 2018June 22, 2019 Mark Elliot disruptive tenant, no-just-cause eviction

As part of the deal to end no-just-cause eviction in Beverly Hills, City Council agreed to create a new reason to terminate for-cause: the ’disruptive’ tenant’ termination provision. And Council created a new process and a new Council subcommittee to hear the landlord’s application to terminate. What does it mean for an unruly tenant?

The New Standard

The ‘disruptive tenant’ idea emerged from the City Council discussion to end to no-just-cause terminations on October 18th. Landlords say they need a way to get rid of “problem tenants,” in their phrase, and because the city was ending no-just-cause Council agreed to add a new ‘disruptive tenant’ reason for termination. Here is the provision:

A landlord may bring an action to recover possession of an apartment unit if: a) 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 b) 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(M)(1)

City Council unanimously adopted it at the November 6th meeting with urgency ordinance #18-O-2765 (which also officially put the nail in the coffin of no-just-cause eviction). Relocation fees do not apply for a tenant evicted for disruption. The new provision applies to Chapter 5 tenants too.

The city sets a different (and arguably lower) bar for a ‘disruptive tenant’ eviction than state law does for creating a nuisance. Grounds for disruptive tenant include antagonizing, intimidating or bullying tenants or behavior that “continually disturbs the peaceful and quiet enjoyment of one or more tenants.”

Compare it to the state’s standard (emphasized) as described in the Civil Code:

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)

Unlike the state’s nuisance standard, the grounds for the ‘disruptive tenant’ provision have not been adjudicated by the courts. Thus our local decision-makers (the City Council two-member subcommittee) will have only seat-of-the-pants reasoning to go on. ‘Disruptive tenant’ as we use it is a concept is not part of case law.

We did not see the need to create a local standard for for-cause eviction of tenants who create a disturbance. Landlords provided no support for their claim that the court process was too “onerous,” for example. And we’ve seen no support for the claim that problem tenants hold landlords hostage by stretching out the eviction process. Finally, the landlord claim that “professional tenants” bilk them for money seemed a bit thin too (though every landlord has her story).

So why did the city create a new ‘disruptive tenant’ reason for termination? Best we can tell, City Council repeatedly heard from a single landlord about his brush with a problem tenant years ago. His tenant by his side supports his account. They brought up the issue at meeting after meeting and ultimately City Council seemed persuaded.

Now, we’ve heard plenty of grousing from landlords who are unhappy with what they call groundless and “anecdotal” policy-making, but no landlord has stepped up to ask why the city created the rule based on just one landlord’s convincing story.

What does intimidation or bullying look like? How will our local decision-makers apply this new ‘disruptive tenant’ standard? Many questions remain because there has not been a termination under the new ordinance provision that we know about.

A New Process for Termination

To complement the new ‘disruptive’ ground for termination under the rent stabilization ordinance, the city has create a new local process to administer it. City Council has formed a subcommittee to hear a landlord’s request to terminate and it happens right there 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. The final word goes to the landlord, according to BHMC 4-6-6(M)(2)(e)(3).

Then the subcommittee deliberates. The two subcommittee members must agree in order to terminate. If agreed, then the landlord serves the tenant with an eviction notice. The November 6, 2018 staff report explains:

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.

As the December 18th staff report notes, the tenant who does not vacate in response to a city notice of termination would then face an unlawful detainer proceeding in Superior Court at the city’s lower standard.

The timeline for the entire process is 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”

Court is Still an Option

If the Council subcommittee members can’t agree, or if both members agree not to terminate the tenancy, then the landlord loses at this step. But he can appeal the city’s determination in court. The tenant enjoys the opportunity to appeal, too. However any appellant faces a higher bar. Under the Code of Civil Procedure, the appellant would have to persuade the judge that the process was flawed or otherwise did not respect due process; OR that the determination was not supported by the evidence.

Of course the landlord can always just try his luck in Superior Court with a for-cause eviction under the state’s nuisance standard without pursuing the city’s process. In fact he can do both (although if the tenant prevails locally she could use that determination to argue her case before the judge).

A Few Caveats About the Process

Some important aspects were not discussed by City Council. First, the mayor (a position that rotates annually among councilmembers) is empowered to make the two appointments to the subcommittee. Each term is two months. The mayor can also reappoint the members for successive two-month terms. An alternate idea would have been to mandate committee members rotate among the five councilmembers, or else be drawn randomly.

Because there is no provision for randomized subcommittee member selection, the landlord will know in advance who will hear his application to terminate a tenant. Will the two appointees be receptive to his claims? He can make a semi-informed choice of venue: the city process or the courthouse.

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. Here tenant faces the same challenge as the courthouse: up against the landlord’s experienced counsel. ‘Quick-evict,’ flat-fee attorneys are a dime-a-dozen. And they defend landlords all day, every day. The tenant who undertakes a do-it-yourself defense may not fare so well… though arguably better in the city’s process than the courtroom.

Third, it is not clear whether a low-income tenant would benefit from the legal help provided by the city’s contracted housing rights legal services provider Bet Tzedek. Again, this wasn’t discussed by City Council either.

Finally, the long-term plan is for the ‘disruptive tenant’ applications to be adjudicated by the future rent stabilization commission. How tenants or landlords will fare before a body with little experience in adjudicating matters remains to be seen!

Takeaway

The definition of ‘nuisance’ in case law would seem to reflect City Council’s concern about a problem tenant, so why create a local standard? Especially one backed by no case law? The lower termination standard will swing open the door to charges of antagonism, intimidation and bullying (none defined precisely).

Also, the ‘disruptive tenant’ provision suggests a ‘one-strike’ policy: it appears the landlord need only warn a tenant one time before hauling her into the city process. That is, if she does not modify her disruptive behavior “when requested to do so by the other tenant(s) or by the property owner or manager of the premises” according to Municipal Code section 4-6-6(M)(1). Be good to your neighbors!