TENANTS LEGAL CENTER
OF SAN DIEGO
SAN DIEGO TENANT UPDATE
New landlord Tenant laws
2003 2004 2005
2006 2007 2008
2009
NOT ALL RESIDENTIAL LEASES MAY BE PROTECTED UNDER THE NEW FEDERAL LAW
Federal law now protects residential leases entered into before "the notice of foreclosure". Unfortunately, in California, there is no law which specifies what is a "notice of foreclosure. " At the Tenants Legal Center, we have taken the position that this "foreclosure" notice is the NOTICE OF TRUSTEE SALE. This would protect all qualifying bona fide leases entered into up to that point. The new owners/lenders claim the NOTICE OF DEFAULT (NOD) is that "foreclosure" notice. They say that so that all leases entered into after that NOD may be voided by them (i.e. NOT protected by Federal Law). California Appellate State courts have not clarified this as a precedent but at least one San Diego Superior Court Judge has ruled that the NOD is the "NOTICE OF FORECLOSURE" which means that in that case, the lease entered into after that NOD (and before the NOTICE OF SALE (NOS) was NOT protected by the Federal Law and an eviction could proceed on a 90 day notice.
Therefore, tenants MUST check the public records in your County (San Diego records) before signing a lease to be sure there is no recorded NOD .on that property
If there is a NOD recorded, any lease signed afterwards may only be protected for up to 90 days.
APARTMENT RENTS INCH HIGHER
The vacancy rates dropped to 5 percent at local apartment complexes according to the San Diego County Apartment Association for its fall 2009 vacancy and rental rate survey of 38,207 apartments in 1,268 complexes and single-family rented homes.
The association said vacancy was down from 5.4 percent last spring. The weighted average rent countywide was $1,189, compared $1,188 a year ago.
NEW LAW TARGETS PHONY "LEGAL AID" OUTFITS
We have warned the public about "legal Aid" scam offices for years and have participated in the
investigation of these phony offices. Now California just passed a law forbidding such practices.
AB 590 Business and Professions Code section 6159.52.
"It is unlawful for any person or organization to use the term "legal aid," "legal aide," or any confusingly similar name in any firm name, trade name, fictitious business name, or any other designation, or on any advertisement, letterhead, business card, or sign, unless the person or organization is a legal aid organization subject to fair use principles for nominative, descriptive, or noncommercial use."
TENANTS GET MORE PROTECTION FROM UTILITY SHUTOFFS
SB 120 has been signed by the Governor. This bill provides notice and opportunity for tenants in rentals with unpaid utility bills to take over service and prevent shutoffs. This is particularly important in foreclosure affected properties. This law expires on July 1, 2010 unless extended or modified.
60 DAY NOTICE LAW EXTENDED
SB 290, has been signed by the Governor. The bill cancels the expiration of the 60-day notice requirement for month to month tenancies of one year or longer. Therefore, the 60 day notice law (Civil Code 1941.1) will continue to be the law and will not expire as it was originally going to on 12/31/09. The Federal 90 day notice rule for tenancies after foreclosures still applies.(S.896)
APARTMENT MORTGAGE DELINQUENCIES ON THE INCREASE
Commercial loans delinquency rates, including those for apartment complexes, have more than doubled in the second quarter of 2009 over the first quarter. There may be some increase in foreclosures for apartments but it is not expected to be what we have seen for private homes. Banks seem more willing to work with commercial borrowers than homeowners in modifying loans to prevent a foreclosure. Tenants caught in these foreclosures have special problems including services being cut off including water and common area use electricity.
NEW FEDERAL LAW REGARDING TENANCIES AFTER FORECLOSURE
On May 20, 2009, the President signed S.896 (word version) into law to take effect immediately. The law has a significant impact on tenants residing in a residential property that has been foreclosed upon. The bill is intended to assist residential tenants by doing three important things;
!. Transferring existing leases (including section 8 tenancies) to the new owners after a foreclosure sale.
2. Requiring 90 day notices to vacate (State law was 60 days) in month to month tenancies after a foreclosure sale.
3. Declaring that a foreclosure is not "good cause" alone to evict a section 8 tenant.
There are conditions to be included under this new law
The lease or rental agreement must have been in existence
prior to the "notice of the foreclosure"
There must be a "bona fide tenant" or "bona fide tenancy"
If these conditions are not met, then State law applies.
Additional consequences and effects
Paying Rent Coming under this law means that the tenant may now have to pay the lease rent after a foreclosure. Existing State Law allowed a tenant 60 days after a foreclosure of a dwelling to vacate without paying rent. This was regarded as an unofficial relocation benefit. This new Federal Law appears to wipe out the free rent California tenants were enjoying. The (pre- foreclosure notice) lease may be recognized and assumed by the new owner who may now want the rent immediately after the foreclosure sale. Stranger as New Landlord After the foreclosure sale, the tenant will "inherit" a new landlord who may not be the person or entity that the tenant would have a wanted as a landlord if they had a choice in the matter.Terminating Leases The new owners may terminate an existing lease including, section 8 tenancies, if the new owner intends to move in with 90 days notice.
[This law is set to expire on 12/31/2012]
TENANTS CHECKING CREDIT OF LANDLORDS?
With so many foreclosures, maybe it is time tenants check the credit of landlords before renting. Some landlords who face foreclosure will rent the home to unsuspecting tenants collecting rent all the way to losing the home at a foreclosure sale. They collect rent but do not pay the mortgage since they are planning to let the home go. The problem is that the tenants do not know about the owner's plans and think they are leasing a secure home. These tenants become victims because they leased a home on the edge of foreclosure which will lead to their eviction, regardless of the lease. Tenants can actually research the risk of foreclosure before renting and moving in. Anyone can access public records in San Diego to see if there is a NOTICE OF DEFAULT (NOD) on the property. Once one of these is issued, the owner has time to cure the default before the sale. Clearly, tenants who discover a NOD should understand that beginning to or continuing to rent that home carries the risk of being evicted by the lender after a foreclosure. Innocent tenants displaced by a foreclosure may ake a claim against the owner for breach of the lease and perhaps even a claim for damages based on fraud.
REPRESENTING YOURSELF
IN DEFENDING AN EVICTION?
DON'T DO IT
Tenants here are still losing valuable rights by handling their own eviction defense. Defending yourself in an eviction case in San Diego, in the vast majority of cases, is court "suicide". Statistically, most all tenants who represent themselves in eviction court will lose or be tricked into signing a bad settlement. Using any self help assistance service or book creates a serious risk that you will lose your case, regardless of your rights. Having someone prepare your papers without them being available to represent you in court is very dangerous. This is because eviction cases and trials are so complex that a skilled attorney is really necessary to properly handle these matters. Even with settlements, remember the landlord is motivated to settle the case with your attorney, not you. This is because, they are not afraid of you in court, only your attorney. By the way, this situation is pretty much the same for landlords. Many landlords have represented themselves in court against a skilled tenant's rights attorney and learned the hard way just how technical and difficult these cases can be. Coming in second in trial (i.e. losing) for a landlord who just assumed they would easily win can be a real eye opener.
LANDLORDS ABUSING THEIR
POWER OF EVICTION
Many San Diego tenants are still receiving eviction notices for minor and trivial reasons. San Diego County is still a "no cause" eviction jurisdiction. San Diego City, however, is now a just cause eviction jurisdiction after the first two years of a tenancy according to the City ordinance. Landlords continue to seek only the "best" or "their favorite" tenants and tend to evict the rest. These desired tenants can be the good timely paying tenants or simply those tenants willing to accept abuse and unfair treatment without complaint.
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California law for San Diego is applied in these pages. Such laws may or may not be applicable in other jurisdictions. The information provided herein is of a general nature and is not intended to be taken as specific legal advice. For legal advice in a particular situation, promptly consult with an
appropriate attorney