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The following letter came to the Orange Juice letterbox today, the day of the second reading of the Quality Rental Housing Program Ordinance, which we reprint below the cheeky graphic:
March 4, 2014
Mayor Tait, Mayor Pro Tem Murray, Councilmembers Eastman, Brandman & Kring
City Hall, 7th Floor
200 S. Anaheim Blvd
Anaheim, CA 92805
Dear Mayor Tait, Mayor Pro Tem Murray, and Councilmembers:
I write on behalf of Tenants Together, California’s statewide organization for renters’ rights, to express concerns about the rental housing inspection ordinance that is before you on second reading this evening. Our organization possesses significant expertise on tenant rights, habitability standards and code enforcement. We have worked in many cities to hold slumlords accountable and strengthen code inspection programs.
We generally view robust inspection programs as an important part of improving rental housing conditions. That said, the devil is often in the details, and there are major problems with the ordinance under your consideration that could lead to more harm than good.
We recently learned from a media report of the rental inspection ordinance under your consideration. Upon reviewing it, we discovered troubling aspects of this legislation, and the implementing documents, that require amendment. This letter highlights some of the major problems, but it is not exhaustive. Given the opportunity, we would be happy to engage further about the ordinance, however as a hearing is set for this evening, we are providing these comments now.
The Rental Housing Preservation Appeals Committee: Turning Supervision over to the Regulated
This Ordinance in its current form hands all control to the very industry being regulated. That fact alone should preclude adoption of this ordinance on second reading until appropriate amendments have been made.
The five-member Rental Housing Preservation Appeals Committee consists of one city employee, one Neighborhood Council representative, and three landlord or realtor representatives. The landlord/realtor organizations are listed by name and given the power to recommend their own representatives. These landlord groups are defined in the ordinance as the “Interested Organizations.”
The appeals committee will be tasked with interpreting the ordinance and resolving appeals. It will have the power to decide whether a landlord is in compliance or not. It will have the power to uphold or overturn fines. It will also have the power to recommend when an inspection warrant is authorized against a tenant who does not agree to provide access.
This body does not have a single dedicated seat for a group whose mission is to protect the rights of tenants. Instead, the City gives majority power to industry to police its own, raising obvious conflicts. If the purposes of the Ordinance are as stated in the Ordinance, the appeal body must be reconfigured into a representative body that does not hand complete control to those being regulated. Likewise, the definition of “Interested Organizations” must be expanded to include organizations whose mission includes protecting the rights of tenants.
The Management Questionnaire
Under the proposed ordinance, the process starts with landlords completing a Management Practices Questionnaire (MPQ) and submitting that to the city. The current document, which we hope is merely a draft, is highly problematic. The authors of the Questionnaire apparently see their mission as dictating strict landlord policies toward tenants and prospective tenants, rather than carrying out the purposes stated in the Ordinance.
Since a negative response may trigger additional inspections, the Questionnaire effectively forces landlords to engage in the following practices that are not required by California law: (1) to require written rental agreements of tenants, (2) to use separate “house rules” instead of just including rules in a rental agreement, (3) to conduct tenant screening through specified methods, (4) to require each adult occupant to sign a written rental agreement, (5) to define the maximum number of occupants permitted in the unit, and (6) to adopt specific policies to deal with occupants not listed by name in the agreement.
The reasons for including many of these items in an inspection ordinance are unclear. The form of the rental agreement (verbal, written, single document or multiple) is irrelevant to the code enforcement objectives. Requiring each and every tenant to sign a written lease is both unnecessary and problematic for many reasons, including but not limited to the fact that a tenant may speak or read the language of the contract. Likewise, tenant-screening practices vary considerably between landlords: some prefer a handshake approach, others call references, and others engage in detailed checks. There is no reason for an inspection ordinance to try to dictate the method used with an obvious bias toward more restrictive screening.
The questions in the MPQ about occupancy raise fair housing concerns. California law already sets occupancy standards. Adopting and enforcing improper occupancy standards, particularly as applied to families with children, is a frequent source of landlord liability under the Fair Employment and Housing Act. In addition, with regard to occupants not listed on rental agreements, the Questionnaire incorrectly presumes that there is something improper about a tenant living in a unit when they are not on the lease. In many cases, landlords are aware of and approve additional occupants. Also, as indicated above, with respect to family members, tenants may have a right to have these additional occupants as long as they do not exceed maximum occupancy limits, and the MPQ raises fair housing concerns by attempting to force landlords to take action against occupants not on the lease.
We were pleased to read in the Voice of OC article covering this law that According to the Voice of OC article, Mayor Pro Tem/Councilmember Murray, who we understand to be the Councilmember who initially advocated for adoption of this law, does not support the Questionnaire. We hope that report is accurate, and we hope other Councilmembers share that view. Nonetheless, as it stands, it appears that the Questionnaire will be at the discretion of the Director, and if the current Questionnaire is any indication, this is highly problematic.
To reiterate, the Management Practices Questionnaire contains numerous provisions that are improper and have no place in a code inspection law, the goal of which is to enforce code, not to restructure all contracts between landlord and tenant. The MPQ also raises significant concerns under California’s Fair Employment and Housing Act.
Accordingly, we request that the Council simply strike any reference to the Management Practices Questionnaire from the Ordinance and replace it with a basic registration form, the contents of which should be spelled out in the Ordinance. Alternatively, to the extent the Council insists on using a Management Practices Questionnaire, the Council should do all of the following: (a) disapprove the current Questionnaire, (b) amend the Ordinance to require Council approval of any new Questionnaire, and (c) amend the Ordinance to require the Director to present any future Questionnaire to interested parties (the definition of which must be expanded, see below) for comment before being brought to the Council for approval. As noted at the outset of this letter, the devil is in the details, and in this regard, the details of the MPQ defeat the purposes of the ordinance.
The Program Evaluation Checklist
The problems are compounded by the Program Evaluation Checklist. According to that document, the Registration is deemed out of compliance and the city may inspect the entire property if “the owner does not employ at least three tenant screening methods,” “has not adopted occupancy regulations,” or “does not terminate the tenancy of those who engage in illegal activities.” Clearly, the checklist seeks to impose building-wide inspections based upon answers provided in the MPQ.
Again, the problem here is not increased inspections of rental housing in Anaheim. It is that inspections are triggered by irrelevant and unfair criteria that are inconsistent with fair housing and general landlord-tenant laws. Because landlords will want to avoid inspections, they will impose new contract requirements, utilize more stringent screening criteria, and step up evictions for minor offenses, among other responses. This has an obvious detriment to tenants and also puts landlords in a difficult position.
Omitted from the ordinance is any restriction on the landlords’ ability to pass registration fees or fines through to tenants. We recommend a provision that expressly prohibits passing such costs through to tenants.
Perhaps due to the lack of inclusion of tenant advocates in the development of this ordinance, the enforcement provision does not include remedies for tenants. To make the ordinance more effective, we recommend including a provision that provides tenants with a cause of action against a landlord who is out of compliance with the ordinance. Such a cause of action would be in addition to any existing rights and remedies under state and local law.
Another approach that should be considered is something similar to Los Angeles’ Rent Escrow Account Program (REAP) program which allows tenants to pay rent into a city-administered escrow account from which funds are only released once the unit is brought up to code. This is a very effective way to gain compliance from landlords that are otherwise unwilling to make necessary repairs.
We have, on very short notice, flagged some of the problems with the Ordinance and recommended some key changes. This is not a comprehensive assessment of the Ordinance. There are other provisions that need work. We highly recommend that the matter be continued to consider these and other appropriate amendments. Thank you for your consideration of these comments.
Dean Preston Executive Director