Sacramento Report

Combating Eviction Delay Tactics

by Monica Williamson

While they are a necessary part of rental housing operations, evictions are never pleasant for the property owner and manager who seek to regain possession of the unit, or for the tenant who is being evicted. First it is important to establish, as a matter of fact, that owners do not evict “good” tenants. Long-term, conscientious tenants are the “bread and butter” clients that rental housing operators desperately seek. But when tenants fall short of meeting their obligations, and/or cause disturbances at the property, the situation must be addressed or owners may open themselves up to problems with other tenants whose quiet enjoyment is being violated.

Under California law, an unlawful detainer (eviction) is a legal proceeding brought by a lessor (owner) to recover possession of real property. If successful, this action will terminate the rights of the tenant to use the property and will return the right of possession to the owner. Although an unlawful detainer is a “summary” proceeding (meaning it has priority in the courts), whether or not an action is successful or expedient often depends upon various tactics used by sometimes-unscrupulous tenant attorneys. Some of the more common delay tactics include a request for a jury trial well after the proceeding has been initiated, and allegations of habitability violations where none may exist. When such delays are successful, even if the owner ultimately prevails in the legal action, months of unpaid rent can accrue during the pendency of the proceeding and most often cannot be collected by the owner even if a judgment for a money award is obtained.

The California Apartment Association continues to seek ways to blunt the effects of unfair and abusive eviction delay tactics. In 2006, CAA sponsored legislation (SB 1386; William Morrow, R-San Clemente) with the Civil Justice Association of California and the California Chamber of Commerce to allow parties in a contract (including a rental or lease agreement) to waive their right to a jury trial in the event a legal conflict arises out of the contract. If successful, this bill would have foreclosed a very popular tactic that can have the effect of doubling or tripling the amount of time it takes to adjudicate an unlawful detainer. SB 1386 was killed by the State Senate Judiciary Committee. Similar legislation in the Assembly (AB 2258; Michael Villines, R-Fresno) was also killed by the Assembly Judiciary Committee.

This year, CAA is once again considering legislative relief to mitigate the effects of unscrupulous efforts that delay a necessary eviction. This year’s approach will be markedly different than the jury waiver approach sought last year. In 2007, CAA will pursue pretrial rent-deposit legislation that will allow property owners to request that a defendant deposit prospective rent with the court when the defendant challenges an eviction action.

New Legislature, New Opportunities?
In December 2006, 34 new legislators were sworn into office in Sacramento (33 new Assembly Members and 1 new Senator). These new lawmakers represent the largest “freshman” class the State Capitol has ever seen. We are now experiencing the full effect of term limits. We have an entire Legislature that was not in the Capitol before term limits were enacted. That being said, CAA is optimistic that an era of cooperative policy development can emerge with this newly constituted group of lawmakers.

Prior Experience with the Pretrial Rent Deposit Solution
The pretrial rent-deposit solution has some history in California. In 1994, SB 690 (Quentin Kopp, D-San Francisco), sponsored by CAA and related industry organizations, was signed into law, despite widespread opposition from dozens of tenant organizations. The bill established a three-year pretrial rent-deposit pilot program in Riverside Consolidated/Coordinated Courts, El Cajon Municipal Court, North Santa Barbara Municipals Courts and Downey Municipal Courts. Under the bill, the plaintiff (owner) in an unlawful detainer action could demand that the defendant deposit 15 days’ prospective rent with the court, unless the defendant had paid the rent through the month in which the action was filed. If the plaintiff (owner) elected to file a complaint under the program, an extra fee was required; if the rented premises was the subject of an outstanding citation or if other habitability issues were presented to the court, no deposit could be required under the pretrial rent program.

In addition to creating pretrial hearing opportunities that allow parties to substantiate (or refute) claims for prospective rent, the pilot program set out a number of measurable goals to assess whether the program had succeeded in meeting its goal of reducing delays and abuses of the unlawful detainer process. These measurable goals included: a 50% reduction of time from filing an action to regaining possession of property, no more than 5% of the unlawful detainer cases under the program appealed, a 40% reduction of total administrative and judicial time for the courts disposing of cases under the program, no increase in costs to the courts under the program, and less than 1% of the cases under the program involved property subject to an outstanding violation.

At the end of the three-year pilot program, the participating courts reported their experience with the program to the State Legislature. In general, the findings concluded that the program did not meet its stated goals. Recommendations ranged from allowing the program to sunset altogether to reworking the program to make it more useful. Legislation subsequent to the Kopp bill was enacted to expand the original pilot program to include Los Angeles County.

In short, although the reported experience with the original pilot program was not irrefutably bad, it was also not a resounding endorsement to continue a pretrial rent-deposit program. CAA will explore a variety of options for crafting legislation to create a balanced and thoughtful pretrial rent-deposit program. In addition, CAA will continue to survey the legislative landscape to determine if the time is right for the passage of such legislation.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. Monica Williamson is CAA’s vice president of public affairs. Copyright © 2007 by SF Apartment Magazine. All rights reserved.