As an expert in this field, he shares with us how lawyers should approach such disputes, offering advice on how to tackle these cases.
- Other than nonpayment of rent, wrongful eviction is one of the most common reasons people go to court in the landlord-tenant world. Why is this the case?
It is a widespread occurrence in regions like mine, the San Francisco Bay Area, where a shortage of housing and an ever-growing list of regulations has driven a deeper divide between landlords and tenants. In many larger cities, and now even statewide in California, new laws limit when and why a tenant can be evicted. This is often in addition to laws regulating rent increases. Small "mom and pop" landlords frequently find themselves frustrated with rent control or problem tenants and try to get creative with getting those tenants out, without fully grasping the law. Meanwhile, tenants are getting smarter and have more legal resources. They also learn that they often hold the upper hand in legal matters, mainly when a landlord has acted in bad faith to recover possession due to trebling damages and automatic attorney's fees.
- In rental housing, habitability complaints are also a common reason why disputes arise. What constitutes a breach of the warranty of habitability?
Whether a landlord charges $20 a month or $20,000 a month for rent, an implied part of every rental contract is that the unit is maintained in a habitable condition through the term of the rental agreement. Common breaches of this include issues of mould, vermin, and deteriorated conditions. A breach can also come from code violations, like an electrical hazard or a lack of proper heating. Again, smaller landlords often have less property management experience and may be less aware of their state or regional standards, but that is no excuse. Sadly, a very small number of malicious landlords have been known to let living conditions worsen over time to coerce tenants out through a constructive eviction. This can become very litigious territory as it crosses over into the realm of wrongful eviction.
Many new landlords with property in rent or eviction-controlled jurisdictions often mistakenly think they are exempt from such regulations based on an incomplete understanding of the law.
- What steps can either party take to avoid the above from causing future disputes/litigation?
Membership in a state or regional rental housing association can be a smart move for landlords to educate themselves. These organizations usually do a much better job of staying on top of the changing laws and standards than the average landlord can do themselves. Tenants should encourage their landlords to join to ensure that their housing provider understands all their responsibilities under the law. Communication and documentation are also essential for both parties. You want to show that you did everything in your best effort to resolve the issue. Landlords should know their rental units' condition and quickly resolve any reported issues as they arise. They should also understand the proper notice requirements: the more open the communication channel is, the less likely it is that problems or tensions will arise. Tenants should know that, while laws are increasingly in their favour, they do have obligations they must uphold, and should not ignore requests from their landlords for reasonable, periodic inspections of the unit. Tenants should communicate their issues in writing and bring problems to the property owner or management's attention. If it does come down to it, evicting a tenant should never be taken lightly and should not be done without engaging a competent landlord-tenant attorney to ensure it is done legally and properly.
- What are some common regulations that those new to the rental housing world are often unaware exists?
They vary by jurisdiction and are constantly expanding. California has a patchwork of laws that differ from one jurisdiction to another. For example, just over the past year in California, we have seen new laws regulating rent increases, required just causes for eviction, more tenant protection laws, and changes to security deposit rules. Many new landlords with property in rent or eviction-controlled jurisdictions often mistakenly think they are exempt from such regulations based on an incomplete understanding of the law. California's Tenant Protection Act of 2019 goes even further in establishing that a landlord who meets a specific exemption for rent or eviction control is not exempt unless it is stated in writing in the rental agreement. We see this more and more, including with recent COVID-19 eviction moratoriums, where a landlord's rights often hinge on proper disclosure and written notification on or before a specific date. This is just another reason why the landlord should not skimp on legal counsel in these sensitive areas.
The earlier you bring an expert into your case, the sooner they can help you size up the situation.
- Are there any other nuggets of advice you would offer regarding the COVID pandemic? Do you suspect a rise in disputes / an unprecedented trend occurring in the rental housing sector during this time?
Rental housing has perhaps been one of the most affected areas by COVID-19. There have now been multiple federal, state, and local eviction moratoriums passed to protect renters during this time. In many jurisdictions, a landlord's options for eviction right now are minimal. The most common reason for eviction, nonpayment of rent, cannot currently be used as a ground for eviction. This puts some landlords in a severe financial predicament as back due rent is piling up, and bills and mortgages still need to be paid. We expect to see a rise in small claims court activity as landlords attempt to recover this debt in small claims court, outside of the typical unlawful detainer process. Still, many have their doubts about how successful landlords will be in this arena. Those who can come to agreeable terms with their tenants who are genuinely struggling to make rent may find themselves in a much better position than those trying to play hardball right now. Nonetheless, we will likely see many smaller landlords get out of the rental housing business due to this pandemic, further consolidating the industry into larger investors' hands with deeper pockets.
- As an expert witness and often a third party, what tips do you have for lawyers working on such disputes?
The earlier you bring an expert into your case, the sooner they can help you size up the situation. There is no perfect case. Experts act as consultants at the early phase, but they are also gathering information that will be extremely useful down the road should the case continue to trial. Trying to control costs is just a reality of the field. Still, if you try to limit your expert's exposure too narrowly on only some aspects of the case, you may prevent them from adequately understanding the full picture and setting them up for failure. Waiting until the last minute to disclose experts is also not recommended. This puts the attorney in a difficult position where the expert may have a negative opinion on their case. Removal of your expert's designation due to them pointing out significant flaws in the case may be difficult. Lastly, spending extra time with your expert to prepare them for depositions and trials is essential. A well-prepared expert is necessary. This small additional cost can often make or break a case.
Steven Edrington
1901 Harrison St, 13th Floor
Oakland, CA 94617
(510) 749-4880
info@edringtonandassociates.com
www.edringtonandassociates.com
Steve has over 25 years of experience as a landlord, property manager, real estate broker, and developer. He formerly served as a lobbyist and Executive Director for the Rental Housing Association of Northern Alameda County (RHANAC), now East Bay Rental Housing Association (EBRHA). He specializes in expert witness testimony for wrongful eviction, warranty of habitability, standard of care, and damages. In addition, he helps property owners navigate their local jurisdictions on issues related to code enforcement, illegal units, notices of violation, condo conversions, and accessory dwelling units. Steve is a Certified Commercial Investment Member (CCIM), Certified Property Manager (CPM), and an ICC Residential Building Code Inspector.
Edrington and Associates is a full-service real estate consulting firm serving Bay Area property owners on a variety of projects, as well as attorneys through our expert witness services.
