Landlords seeking to evict tenants within the City of San Diego are required to observe numerous eviction laws and guidelines imposed by the State of California that govern the eviction process. The laws already contain several nuances to which a landlord must strictly adhere or otherwise risk jeopardizing the eviction in question. However, in addition to the California eviction laws, a landlord must also strictly follow eviction laws adopted and imposed by the City of San Diego. One of such laws specific to the City of San Diego is the Tenants’ Right to Know Ordinance (the “RTK Ordinance”). San Diego Municipal Code Chapter 9, Article 8.
What Is It?
In 2004, the City of San Diego adopted the “Tenants Right to Know Ordinance,” which is a just cause eviction ordinance. The RTK Ordinance significantly impacts a landlord’s ability to terminate, or refuse to renew, the tenancy of a long-term residential tenant by requiring the landlord to provide cause for termination. Generally, the RTK Ordinance states that if a landlord wants to terminate a residential tenancy of more than two years, the landlord must have one of nine enumerated reasons for doing so and must inform the tenant of such reason at the time of serving the requisite notice under California law. The stated purpose of the RTK Ordinance is “to promote stability in the San Diego rental housing market and limit adverse impacts on long-term residential tenants displaced and forced to find replacement housing in the expensive and limited San Diego housing market.
The RTK Ordinance, San Diego Municipal Code Section 98.0730, states the following nine reasons upon which a landlord can rely to terminate or refuse to renew a tenancy consist of the following:
- Nonpayment of rent;
- Violation of Obligation of Tenancy;
- Illegal Use;
- Refusal to Renew Lease;
- Refusal to Provide Access;
- Correction of Violations/Necessary Repairs or Construction;
- Withdrawal All Rental Units from the Rental Market;
- Owner or Relative Occupancy
For example, if a landlord wanted to end a residential month-to-month tenancy that has lasted for over two years and that pertains to a property in the City of San Diego, the landlord could only do so if one of the foregoing reasons existed. If one of the reasons existed, the landlord would serve the proper notice to the tenant as ordinarily required under California law (i.e. 3-day, 30-day, 60-day notice, whichever the case may be), and the landlord must include the specific reason for termination in the notice. This differs from the general practice in California wherein a landlord can terminate a month-to-month tenancy by simply providing a 30-day or 60-day notice, for any reason and such reason need not be given to the tenant.
Challenges to Interpretation.
At first glance, the RTK Ordinance appears relatively straightforward in that the typical reasons for terminating a tenancy match those permitted by the RTK Ordinance. However, problems may arise due to the ambiguous terminology used in the RTK Ordinance.
For example, while it is clear that the RTK Ordinance applies only to tenancies of more than two years in duration, it remains unclear whether the RTK Ordinance applies solely to month-to-month tenancies, or whether the RTK Ordinance also applies to fixed term tenancies. Our office is of the opinion that the RTK Ordinance is limited to the month-to-month tenancies given the fact that a fixed term tenancy automatically terminates without notice. However, the issue has yet to be litigated and could pose costly and time-consuming problems to a landlord looking to evict a tenant if a tenant, rightly or wrongly, sought to challenge the issue.
Additionally, further ambiguity arises where a landlord relies on the “Correction of Violation” cause to terminate a tenancy. The RTK Ordinance provides that a valid cause to terminate a tenancy exists if the landlord needs possession of the property in order to make “necessary repairs and construction” to the property in question. This obviously begs the question of what is “necessary,” which is not surprisingly undefined in the RTK Ordinance. Again, the issue has yet to be sufficiently litigated to create any sort of certainty around the issue for landlords seeking to evict.
The RTK Ordinance is a very tenant-friendly ordinance that creates further nuance to the eviction procedures in the City of San Diego. The RTK Ordinance imposes additional burden on a landlord seeking to evict a residential tenant. Should an unlawful detainer be filed, the RTK Ordinance also provides a mechanism for the tenant to challenge the eviction by alleging as an affirmative defense that the landlord failed to abide by the RTK Ordinance. For instance, if the tenant contests the reason provided by the landlord in the notice (i.e. tenant contends he or she was not causing a nuisance), the tenant can allege the landlord did not abide by the RTK Ordinance and would bear the burden of proving that the landlord did not follow the RTK Ordinance.
Landlords need to be cognizant of the requirements of the RTK Ordinance in order to smoothly and efficiently evict a long-term residential tenant. Failure to adhere to the provisions of the RTK Ordinance could substantially and negatively impact a landlord. At a minimum, the landlord will suffer the lost time and inconvenience of having to serve a new notice that includes proper cause for eviction. If the landlord has gone so far as to actually commence an unlawful detainer suit based on the bad notice, the consequences can potentially be far worse. Not only will the tenant win the eviction case and the landlord will have to start the entire process over again, thus losing more time and rent, but a successful win for the tenant could subject the landlord to paying the tenant’s costs and attorneys’ fees.
The creation of the RTK Ordinance affirmative defense also creates a level of unpredictability for landlords when renting properties in the City of San Diego. Naturally, landlords will need to assess this potential risk and unpredictability associated with the RTK Ordinance and will take such risk into account when renting their properties to potential tenants.
Given the above, if you want to terminate a long-term residential tenancy, be sure to consult a real estate litigation attorney to help ensure that you are in compliance with the provisions of the RTK Ordinance and California eviction law.
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