New, But Not Improved

What You Need to Know About Oakland's New Tenant Protection Ordinance - Written by Liz Hart - Posted Nov 5, 2014

New, But Not Improved

In October 2014, Oakland’s City Council passed a new set of protections for tenants called the Tenant Protection Ordinance (TPO). The TPO is just the first phase of a plan to create an enforcement body with authority to levy steep fines against rental property owners.

At the prompting of the Causa Justa organization, City Councilmember Dan Kalb spearheaded the effort and introduced the TPO. Kalb represents District One, which borders the City of Berkeley and includes the Temescal district. He is also up for re-election in 2016.

The TPO defines what conduct would be considered harassment, and establishes civil remedies tenants and the city itself may pursue in court to address the owner’s conduct. It also empowers the Rent Adjustment Program to set up new regulations to implement the TPO including mandatory notices to tenants. Even owners of properties exempted from the Rent Control Ordinance, like single-family homes, are now required to provide notice of the TPO to tenants, both at the start of the tenancy and with a public notice in common areas. The city-mandated notices are available through the Rent Adjustment Program and are available on EBRHA’s website.

For each and every violation, a rental property owner found guilty in court now faces a minimum of $1,000 in damages or treble the amount of actual damages, including mental or emotional distress (whichever is greater).

Furthermore, Causa Justa has already gone on record as setting a goal for 2015 of changing the new law to include an administrative enforcement arm so that tenants may file complaints that the city would investigate, and potentially fine owners for violations. Given that the Rent Board has been charged with implementing the new law, it’s safe to say the Rent Board would gain these new powers if these changes were enacted.

With few exceptions, the TPO covers rental units that have a rental agreement between the owner and the tenant(s). Not covered under the TPO are hotels and motels, nonprofit housing providers, substance abuse recovery facilities, nursing homes, short-term housing facilities for the homeless, owner-occupied duplexes and triplexes, and new construction for the first 15 years.

What is Harassment?

The TPO prohibits owners and their agents, employees, contractors or subcontractors from 16 forms of harassment, including:

1.) Interrupt, terminate, or fail to provide housing services or threaten to do so

2.) Fail to perform repairs and maintenance or threaten to do so

3.) Fail to exercise due diligence in completing repairs and maintenance once started or fail to follow appropriate industry protocols noise, dust, lead paint, mold, asbestos, or other building materials with potentially harmful health impacts

4.) Abuse the Owner’s right of access into a rental unit

5.) Remove from the rental unit, without prior written consent, any of the tenant’s personal property or furnishings

6.) Influence or attempt to influence a tenant to vacate a rental unit through fraud, intimidation or coercion, including threatening to report a Tenant to U.S. Immigration and Customs Enforcement

7.) Offer buyout payments to a tenant more than once in a six (6) month period, if the tenant has informed the Owner in writing that they do not wish to receive further offers

8.) Attempt to force a tenant to leave with a buyout offer that is accompanied with threats or intimidation. However the TPO specifically excludes a good faith offer when there is a pending eviction

9.) Threaten the tenant, by word or gesture, with physical harm

10.) Interfere with a tenant’s right to quiet use and enjoyment of the rental unit

11.) Refuse to accept or acknowledge receipt of a tenant’s rent payment, except for when a Three Day Pay or Quit notice has been served and the payment period has ended

12.) Refuse to cash a rent check for over 30 days unless a written receipt has been provided to the tenant

13.) Interfere with a tenant’s right to privacy

14.) Request information that violates a tenant’s right to privacy, including but not limited to residence or citizenship status or Social Security number, except as required by law or, in the case of a Social Security number, for the purpose of obtaining information for the qualifications for a tenancy, or not release such information except as required or authorized by law

15.) Other repeated acts or omissions that substantially interfere with or disturb the comfort, repose, peace or quiet of an occupant and are designed to, likely to or actually do cause that individual to leave the unit

16.) Removing a housing service with the intention of causing the tenant to leave, e.g. taking away a parking space knowing that a tenant cannot find alternative parking and must move.

Protections for Owners?

As written, the TPO does seemingly provide some protection for rental property owners. For instance, tenants must provide notice of the violation to the owner before suing. However, the TPO doesn’t require the notice of violation to be in writing. If the tenant does bring suit and wins, the tenant is entitled to recover their attorneys’ fees from the owner.

But if the owner wins and wishes to recover their attorneys’ fees from the tenant, the owner must also prove the tenant’s lawsuit was “devoid of merit” and “brought in bad faith.” Taken together, these provisions leave the owner defending themselves in a “he said, she said” lawsuit. Even if they win, they must attain two additional standards of proof before they can even hope to collect their attorneys’ fees. As always, the devil is in the details.

EBRHA members can find a link to the TPO on the EBRHA website under the “Resources” tab, and by clicking “Oakland Tenant Protection Ordinance.”

The new law should concern anyone who owns residential rental property in Oakland. The subjectivity of words like “interfere,” “intimidate” and “due diligence in completing repairs” could leave owners open to baseless allegations.  Many EBRHA members will have first-hand experience with tenants using the TPO civil remedies as a weapon, rather than the shield it is intended to be. The provision awarding treble damages for “mental and emotional distress” is an invitation to exaggeration.

Strength in Numbers

One of the most powerful ways rental property owners can protect their interests and property is to encourage other owners to join EBRHA. EBRHA works tirelessly to alert its membership when important issues like the TPO are being voted on. When contentious issues like this arise, it is critical that EBRHA membership be represented at city council meetings. Watch EBRHA’s magazine and the website calendar for upcoming events or contact EBRHA staff to discuss the ways members can impact these issues.

-Liz Hart

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Liz Hart is a consultant to owners of rental properties in Oakland and Berkeley, and specializes in rent increases and rent board petitions. She can be reached at"> or 510-813-5440.

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