ATTACHMENT A
ORDINANCE NO. ______
AN ORDINANCE OF THE TOWN COUNCIL OF THE TOWN OF FAIRFAX AMENDING CHAPTER 5.54 “JUST CAUSE EVICTIONS” OF TITLE 5 OF THE
FAIRFAX MUNICIPAL CODE
WHEREAS, more than 1,200 Fairfax households rent their homes, constituting approximately 37% of total town households, as identified in the 2021-04-02 Housing Needs Data Report: Fairfax; and
WHEREAS, approximately 24% of Fairfax rental households are low income, which is defined as earning between 51% and 80% of the county’s area median income, as identified in the 2021-04-02 Housing Needs Data Report: Fairfax; and WHEREAS, approximately 12% of Fairfax rental households are very low income, which is defined as earning between 30% and 50% of the county’s area median income, as identified in the 2021-04-02 Housing Needs Data Report: Fairfax; and WHEREAS, approximately 36% of Fairfax rental households are extremely low income, which is defined as earning between 0% and 30% of the county’s area median income, as identified in the 2021-04-02 Housing Needs Data Report: Fairfax; and WHEREAS, approximately 48% of Fairfax renters were estimated to be rentburdened, which is defined as spending more than 30% of household income on rent, with 28% of renters estimated to be severely rent-burdened, which is defined as spending more than 50% of household income on rent, as identified by the U.S. Census Bureau, 2019: American Community Survey 5-Year Estimates; and
WHEREAS, an estimated 530 renter-occupied lower-income households in Fairfax are spending more than 30% of their annual income on rent, including 335 who are spending more than 50% on rent, as identified in Appendix H-B: Housing Needs Assessment of the Town’s Housing Element Update 2015-2023; and WHEREAS, according to the National Low Income Housing Coalition’s “Out of Reach 2021” study, a renter household would need to earn $55.77 an hour to afford an average one-bedroom apartment or $67.69 an hour to afford an average two-bedroom apartment in Fairfax without being rent-burdened, although the average real wage for Marin renters is just $23.23 an hour; and
WHEREAS, according to the Elder Index developed by the Gerontology Institute at the University of Massachusetts Boston, the average Marin senior renter spends $2,695 per month on housing, constituting between 64-68% of their total monthly expenses; and
WHEREAS, 87% of Fairfax householders under the age of 35 are renters, as identified by the U.S. Census Bureau, 2019: American Community Survey 5-Year 2 Estimates; and
WHEREAS, 68% of Fairfax householders who identify as Hispanic or Latino are renters, as identified in the 2021-04-02 Housing Needs Data Report: Fairfax; and WHEREAS, 66% of Fairfax householders who identify their race as something other than white are renters, as identified in the 2021-04-02 Housing Needs Data Report:
Fairfax; and
WHEREAS, the rising costs of rents are forcing people out of their homes and out of our community; and
WHEREAS, seniors on fixed incomes, young people, people of color, immigrants, and working people of all backgrounds increasingly cannot afford to buy a house in Fairfax or elsewhere in Marin and depend on stable rents in order to live here; and WHEREAS, stabilizing rents will protect existing affordable housing stock, enabling local residents to live where they work, thereby shortening commutes, improving traffic and air quality, and lowering local carbon emissions; and WHEREAS, the right to adequate housing is an internationally recognized human right, sanctioned by the United Nations and enumerated to include protection against forced evictions, security of tenure, and non-discriminatory access, as identified by the Office of the United Nations High Commissioner for Human Rights, The Right to Adequate Housing, Fact Sheet No. 21/Rev.1; and
WHEREAS, the State of California’s Tenant Protection Act of 2019 establishes an annual allowable rent increase of 5% plus inflation, far exceeding that of all municipal rent stabilization districts in the Bay Area; and
WHEREAS, the Tenant Protection Act of 2019 is not proactively enforced by the state and depends on renters knowing their rights and pursuing legal remediation when those rights are violated; and
WHEREAS, Chapter 5.54 (Just Cause Evictions) of the Fairfax Town Code does not presently include protections commonly found in other Bay Area rent stabilization and just cause eviction ordinances, such as relocation payments for renters evicted due to no fault of their own, securing the right of return/first right of refusal for renters who are evicted due to no fault of their own, and special protections against eviction for seniors, the disabled, and for educators and students during the school year; and WHEREAS, in accordance with Civil Code section 1946.2(g)(1)(B), the Fairfax Town Council finds that this ordinance is more protective than the provisions of Civil Code section 1946.2 for the following reasons:
(1) The just cause for termination of a residential tenancy under this Chapter is 3 consistent with Civil Code section 1946.2; and
(2) This Chapter, and Chapter 5.55 (for which amendments are being adopted through a concurrent ordinance), further limits the reasons for termination of a residential tenancy, provides for relocation assistance, and provides additional tenant protections that are not prohibited by any other provision of law.
WHEREAS, there are an estimated 699 multi-family rental units in Fairfax, constituting approximately 57% of total renter-occupied housing units, as identified in the 2021-04-02 Housing Needs Data Report: Fairfax; and
WHEREAS, an estimated 97% of all Fairfax housing units are in structures built before 1995, as identified in Appendix H-B: Housing Needs Assessment of the Town’s Housing Element Update 2015-2023.
NOW, THEREFORE, THE TOWN COUNCIL OF THE TOWN OF FAIRFAX DOES ORDAIN AS FOLLOWS:
SECTION 1. Recitals. The recitals above are each incorporated by reference and adopted as findings of the Town Council.
SECTION 2. Chapter 5.54 Amended. Chapter 5.54, “Just Cause Evictions,” is hereby amended to read in full as follows:
“CHAPTER 5.54: JUST CAUSE EVICTIONS
Section
5.54.010 Purpose and Intent
5.54.020 Definitions
5.54.030 Just Cause for Eviction – Protections
5.54.040 Remedies
5.54.050 Severability
5.54.010 PURPOSE AND INTENT.
The purpose of this Chapter is to promote neighborhood and community stability, healthy housing, and affordability for renters in Fairfax by regulating excessive rent increases and arbitrary evictions to the greatest extent allowable under California law, while ensuring Landlords a fair and reasonable return on their investment.
5.54.020 DEFINITIONS.
For the purpose of this chapter, the following definitions shall apply unless the context clearly indicates or requires a different meaning. 4 BOARD. The Fairfax Rent Stabilization, Just Cause, and Community Stability Board established by this Chapter.
CREDITWORTHINESS. Any standard of determining suitability to receive credit or reliability to pay money owed, including any financial or income standard.
DISABLED. The term “disabled” shall have the same meaning as that in Government Code section 12955.3, as may be amended or renumbered from time to time.
DWELLING UNIT. A structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household as defined in Civil Code section 1940 and the Fairfax Town Code.
EDUCATOR. Any person who works at a school in Marin County as an employee or independent contractor of the school or of the governing body that has jurisdiction over the school, including, without limitation, all teachers, classroom aides, administrators, administrative staff, counselors, social workers, psychologists, school nurses, speech pathologists, custodians, security guards, cafeteria workers, community relations specialists, child welfare and attendance liaisons, and learning support consultants.
HOUSING SERVICES. Housing Services include, but are not limited to, repairs, maintenance, painting, providing light, hot and cold water, elevator service, window shades and screens, storage, kitchen, bath and laundry facilities and privileges, janitor services, access to exterior doors, entry systems, and gates, utilities (unless separately metered and billed to the Tenant by the utility company since the inception of the tenancy, as provided in the lease), refuse removal, furnishings, telephone, parking, the right to have a specified number of occupants or Tenants, the right to have pets, utility infrastructure, and any other benefit, privilege or facility connected with the use or occupancy of any Rental Unit. Housing Services to a Rental Unit shall include a proportionate part of services provided to common facilities of the building in which the Rental Unit is contained.
LANDLORD. An owner, lessor, sublessor or any other person entitled to receive rent for the use and occupancy of any Rental Unit, or an agent, representative or successor of any of the foregoing.
MAXIMUM ALLOWABLE RENT. The maximum allowable rent which may be legally charged on any Stabilized Rental Unit covered by this Chapter.
PRIMARY RESIDENCE. Occupancy of a Primary Residence does not require that the individual be physically present in the unit at all times or continuously, but the unit must be the individual’s usual place of return. Indicia of a Primary Residence include:
5 (1) The individual carries on basic living activities at the subject premises for extended periods;
(2) The subject premises are listed with other public agencies, including Federal, State and local taxing authorities as the individual’s primary residence;
(3) Utilities are billed to and paid by the individual at the subject premises; (4) A homeowner’s tax exemption for the individual has not been filed for a different property;
(5) The occupant is not registered to vote at any other location; (6) All or most of the individual’s personal possessions have been moved into the subject premises;
(7) The subject premises are the place the individual normally returns to as their home, exclusive of military service, hospitalization, vacation, family emergency, travel necessitated by employment or education, incarceration, or other reasonable temporary periods of absence; (8) Other relevant factors demonstrating a residence is the person’s Primary Residence.
In order for a housing unit to qualify as a Primary Residence, ownership must be held in the name of the natural person claiming Primary Residence and cannot be held by a limited liability corporation, limited partnership, or other corporate structure. A housing unit that is owned by a living trust may qualify as a Primary Residence if the trust beneficiary meets the above criteria, so long as the Landlord provides documentation to the Board of the name and address of all trust beneficiaries.
PROPERTY. All rental units on a parcel or lot or contiguous parcels or contiguous lots under common ownership.
RENT. All periodic payments and all nonmonetary consideration including, but not limited to, the fair market value of goods, labor performed or services rendered to or for the benefit of the Landlord under a Rental Agreement, as defined in this section, concerning the use or occupancy of a Rental Unit and premises, including all payment and consideration demanded or paid to the Landlord for parking on or near the Property, utilities, pets, furniture, and subletting.
RENTAL AGREEMENT. An agreement, oral, written or implied, between a Landlord and Tenant for use or occupancy of a Rental Unit and for Housing Services. 6 RENTAL UNIT. Any building, structure, or part thereof, or land appurtenant thereto, or any other rental property rented or offered for rent for residential purposes, together with all Housing Services connected with use or occupancy of such property such as common areas and recreational facilities held out for use by a Tenant, regardless of zoning or permitting status. A room or rooms rented separately from other rooms at the same property shall constitute a single Rental Unit, even if Tenants share other common spaces or amenities.
SCHOOL YEAR. The first day of instruction for the Fall Semester through two weeks after the last day of instruction for the Spring Semester, as posted on the Ross Valley Elementary School District website for each year.
STABILIZED RENTAL UNITS. All Rental Units in the Town of Fairfax except those rental units exempt under one or more of the following provisions:
(1) Rental Units in hotels, motels, and inns, which are rented primarily to transient guests for a period of fewer than thirty (30) days. This exemption does not apply (a) to a Tenant who has resided at the Property for more than thirty continuous days (b) a Tenant who has entered into an agreement to lease a Rental Unit for 30 days or more, or (c) where a Landlord has violated California Civil Code 1940.1 with regard to the Tenant.
(2) Rental Units in any hospital, convent, monastery, extended medical care facility, non-profit home for the aged, or dormitory as defined in California Building Code section 202 that is solely owned and operated by an accredited institution of higher education.
(3) Rental Units which a government unit, agency or authority fully owns, operates and manages. This exemption applies only if applicable federal or state law or administrative regulation specifically exempt such units from municipal rent stabilization.
(4) Rental Units exempt pursuant to the Costa-Hawkins Rental Housing Act (Civil Code sections 1954.50—1954.535). If this subsection (4) is repealed by operation of law, new Rental Units shall be exempt per this subsection only if newly constructed within the past ten years. In such case, pursuant to Government Code § 66300(d)(2)(A), all units built on the same parcel where any Stabilized Rental Unit was previously demolished shall not be exempt as new construction.
TENANT. A tenant, subtenant, lessee, sublessee or any other person entitled under the terms of a Rental Agreement to the use or occupancy of any Rental Unit.
TENANT ORGANIZATION. Any group of Tenants who organize collectively for their shared interest(s) as Tenants, including concerns regarding repairs and 7 maintenance, rent amounts or rent increases, evictions, discrimination, or harassment, regardless of whether they share the same Landlord or management company.
UTILITY CHARGES. Any charges for gas, electricity, water, hot water, sewer, refuse removal, cable or internet.
5.54.030 JUST CAUSE FOR EVICTION – PROTECTIONS.
(A) Applicability. Except as provided herein, the provisions of this Chapter shall apply to all properties in Fairfax that contain at least (1) dwelling units which contain a separate bathroom, kitchen, and living area in a multifamily or multipurpose dwelling; (2) dwelling units in single room occupancy residential structures; or (3) units in a structure that is being used for residential uses whether or not the residential use is a conforming use permitted under the Fairfax Town Code, which is hired, rented, or leased to a household within the meaning of Cal. Civil Code section 1940. This definition applies to any dwelling space that is actually used for residential purposes, including live-work spaces, whether or not the residential use is legally permitted. (B) Exemptions. The following Rental Units shall be exempt from this section, except that all exempt units must comply with the requirement of section 5.54.030(D). (1) Rental Units in hotels, motels, and inns, which are rented primarily to transient guests for a period of fewer than thirty (30) days. This exemption does not apply (a) to a Tenant who has resided at the Property for more than thirty continuous days (b) a Tenant who has entered into an agreement to lease a Rental Unit for 30 days or more, or (c) where a Landlord has violated California Civil Code 1940.1 with regard to the Tenant.
(2) Rental Units in any hospital, convent, monastery, extended medical care facility, non-profit home for the aged, or dormitory as defined in California Building Code section 202 that is solely owned and operated by an accredited institution of higher education.
(3) Rental Units which a government unit, agency or authority fully owns, operates and manages. This exemption applies only if applicable federal or state law or administrative regulation specifically exempt such units from municipal rent stabilization.
(4) Any dwelling unit located in a development where no fewer than 49% of the dwelling units are subject to legally binding restrictions enforceable against and/or governing such units that limit the rent to no more than an affordable rent, as such term is defined in Cal. Health & Safety Code section 50053. (C) No Landlord shall take action to terminate any tenancy, including but not limited to making a demand for possession of a Rental Unit, threatening to terminate a tenancy verbally or in writing, serving any notice to quit or other eviction notice, bringing 8 any action to recover possession or be granted recovery of possession of a Rental Unit, including by seeking the entry of an eviction judgment or by causing or permitting a writ of possession to be entered unless the Landlord is able to prove the existence of one of the following grounds as stated in the termination notice that the court action is based on:
(1) Failure to Pay Rent. The Tenant has failed to pay the Rent to which the Landlord is legally entitled under the Rental Agreement, this Chapter, federal, state, and any other local law.
(a) In any action to recover possession of a Rental unit filed under this subsection, it shall be a defense if the Landlord impeded the Tenant's effort to pay Rent by refusing to accept Rent paid on behalf of the Tenant from a third party, or refusing to provide a W-9 form or other necessary documentation for the Tenant to receive rental assistance from a government agency, non-profit organization, or other third party. Acceptance of rental payments made on behalf of the Tenant by a third party shall not create a tenancy between the Landlord and the third party as long as either the Landlord or the Tenant provide written notice that no new tenancy is intended. (b) COVID-19 State Law Preemption. This Chapter shall not apply to unlawful detainer action for nonpayment of rent originally due from March 1, 2021 through March 31, 2022, where prohibited by Code of Civil Procedure section 1179.05 or successor statute.
(2) Breach of Lease. The Tenant has continued, after written notice to cease, to substantially violate any of the written material terms of the Rental Agreement, except the requirement to surrender possession on proper notice as required by law. To constitute a breach of lease, the substantially violated term must be reasonable and legal and have been accepted in writing by the Tenant as part of the Rental Agreement; and provided further that, where such term was accepted by the Tenant or made part of the Rental Agreement subsequent to the initial creation of the tenancy, the Landlord must have first notified the Tenant in writing that they need not accept such terms or agree to their being made part of the Rental Agreement. (a) Notwithstanding any lease provision to the contrary, a Landlord shall not take any action to terminate a tenancy based on a Tenant’s sublease of the Rental Unit if the Landlord has unreasonably withheld the right to sublease following written request by the Tenant. The following requirements must be met:
(i) The Tenant continues to reside in the Rental Unit as their primary residence.
(ii) The sublease replaces one or more departed Tenants under the Rental Agreement on a one-for-one basis or the sublease adds additional occupants up to the maximum amount of occupants legally allowed under section 9 503(b) of the Uniform Housing Code as incorporated by California Health & Safety Code section 17922, except where prohibited by law.
(iii) A Landlord’s refusal of a subtenant must state the reason for the refusal. If the Landlord fails to respond to the Tenant’s request to sublease in writing within fourteen (14) days of receipt of the Tenant’s request, the Tenant’s request shall be deemed approved by the Landlord. (iv) A Landlord's reasonable refusal of the Tenant's
written request may not be based on the proposed additional occupant's lack of Creditworthiness, if the occupant will not be legally obligated to pay some or all of the Rent directly to the Landlord. A Landlord's reasonable refusal of the Tenant's written request may be based on the ground that the total number of occupants in a Rental Unit exceeds the maximum number of occupants under section 503(b) of the Uniform Housing Code as incorporated by California Health & Safety Code section 17922. (b) Before endeavoring to recover possession based on the violation of a lawful obligation or covenant of tenancy regarding subletting or limits on the number of occupants in the Rental Unit, the Landlord shall serve the Tenant a written notice of the violation that provides the Tenant with a minimum of fourteen (14) days’ opportunity to cure the violation. The Tenant may cure the violation by making a written request to add occupants referenced in subsection (ii) of section
5.54.030(C)(2)(a) or by using other reasonable means to cure the violation. (c) Protections for Families. Notwithstanding any contrary provision in this section, a Landlord shall not endeavor to recover possession of a Rental Unit as a result of the addition to the Rental Unit of a Tenant's child, parent, grandchild, grandparent, brother or sister, or the spouse or domestic partner (as defined in California Family Code section 297) of such relatives, or as a result of the addition of the spouse or domestic partner of a Tenant, so long as the number of occupants does not exceed the maximum number of occupants as determined under section 503(b) of the Uniform Housing Code as incorporated by California Health & Safety Code section 17922.
(3) Nuisance. The Tenant has continued, after the Landlord has served the Tenant with a written notice to cease, to commit or expressly permit a nuisance in, or cause substantial damage to, the Rental Unit and, after written notice, has refused to cease damaging the premises, or has refused to either make satisfactory correction or to pay the reasonable costs of repairing such damage over a reasonable period of time.
The fact that a Tenant has been arrested or convicted of a crime, been the victim of a crime, or contacted the police, in and of itself, is not evidence of nuisance for purposes of this subsection.
(4) Failure to Give Access. The Tenant has continued to refuse, after the Landlord has served the Tenant with a written notice, to grant the Landlord reasonable access to the Rental Unit for the purposes of showing the unit to prospective 10 purchaser or mortgagee or making necessary repairs or improvements required by the laws of the United States, the State of California or any subdivision thereof. The Board shall promulgate regulations for the repair and improvement of Rental Units to ensure the least amount of disruption for the Tenant. Unless due to a documented emergency affecting a Tenant’s health and/or safety, all repair or improvement work will be scheduled in compliance with applicable Board regulations. To terminate a tenancy under this subsection, a Landlord must show that written notice was provided to the Tenant in compliance with Civil Code section 1954 and all necessary repair or improvement work was scheduled in compliance with all applicable Board regulations. (5) Temporarily Vacate in Order to Undertake Substantial Repairs. The Landlord, after having obtained all necessary permits from the Town of Fairfax and a Tenant Habitability Plan approved by the Planning Department as specified in section
5.55.040 of Chapter 5.55 on or before the date the notice of termination is given, seeks in good faith to undertake substantial repairs which are necessary to bring the property into compliance with applicable codes and laws affecting the health and safety of Tenants of the building or where necessary under an outstanding notice of code violations affecting the health and safety of Tenants of the building, and where such repairs while the Tenant resides on the premises and require the Tenant to temporarily vacate for at least 30 days.
(a) Where such repairs can be completed in a period of 60 or fewer days, and the Tenant agrees in writing to vacate the premises during the period required to complete the repairs, the Landlord may not recover possession pursuant to this subsection unless the Tenant shall fail or refuse to vacate the premises in accordance with such agreement.
(b) Where the Landlord owns any other residential Rental Units in the Town of Fairfax of the same number of bedrooms or fewer, and any such unit is vacant and available at the time of service of the written notice terminating the tenancy, or at any time thereafter until the earlier of the Tenant's vacating the premises or the entry of a judgment by a court of competent jurisdiction awarding possession of the premises to the Landlord, the Landlord shall, as a condition of obtaining possession pursuant to this subsection, notify the Tenant in writing of the existence and address of each such vacant Rental Unit and offer the Tenant the right, at the Tenant's option, to enter into a rental agreement (to be designated as a "temporary rental agreement") for the available Rental Unit which the Tenant may choose, at a Rent not to exceed the lesser of the lawful Rent which may be charged for such available Rental Unit or the lawful Rent in effect at the time of the notice of termination of tenancy on the unit being vacated. Said rental agreement shall be for a term of the lesser of ninety days or until completion of repairs for the Rental Unit being vacated by Tenant. (c) A notice terminating tenancy under this subsection must include the following information:
11 (i) A statement informing Tenants as to their right to relocation payments under this Chapter.
(ii) The statement, "When the needed repairs are
completed on your unit, the Landlord must offer you the opportunity to return to your unit with a rental agreement containing the same terms as your original one and with the same rent.”
(iii) A description of the repairs to be completed and the approximate expected duration of the repairs.
(d) Where the Landlord recovers possession under this
subsection either prior to or after an unlawful detainer judgment, the Tenant must be given the right of first refusal to re-occupy the unit. The Landlord shall notify the Tenant household at least sixty (60) days in advance of the availability of the unit or room.
Within thirty (30) days of receipt of the notice of availability, a Tenant household must notify the Landlord if it wishes to reoccupy the unit or room. The Landlord must hold the unit or room vacant at no cost to the Tenant for sixty (60) days from the date the Tenant household’s written notice of its intent to reoccupy the Rental Unit or room is received. (6) Owner Move-In. The Landlord seeks to recover possession in good faith for use and occupancy as a Primary Residence by the Landlord or the Landlord’s spouse, child, parent or grandparent.
(a) A Landlord, as used in this subsection, shall only include a Landlord that is a natural person who has at least a 51% recorded ownership interest in the Property.
(b) No eviction may take place for an “owner move-in” if the same Landlord or enumerated relative already occupies a Rental Unit on the Property, or if a vacancy already exists on the Property. Only one specific unit per building may undergo an “Owner Move-in” eviction. Once a Landlord has successfully recovered possession of a Rental Unit pursuant to this subsection, no other Landlords may recover possession of any other Rental Unit at the Property under the subsection. Any future evictions taking place at the same Property under this subsection must be of that same Rental Unit. At all times, a Landlord may request a reasonable accommodation if the Landlord or enumerated relative is Disabled and a different unit is necessary to accommodate the person’s disability. A Landlord who has terminated a tenancy for a Rental Unit under this subsection may not terminate a tenancy for a Tenant who subsequently reoccupies a Rental Unit after termination of tenancy under this subsection or relocates to a comparable Rental Unit on the same Property for a period of four years commencing from the date of the latest notice to vacate. (c) The notice terminating tenancy shall contain the name, address of Primary Residence, and relationship to the Landlord of the person intended to occupy the Rental Unit, a list of all property owned by each intended future occupant, 12 and the address of the real property, if any, on which each intended future occupant claims a homeowner's property tax exemption.
(d) The Landlord or enumerated relative must intend in good faith to move into the Rental Unit within ninety (90) days after the Tenant vacates and to occupy the Rental Unit as a Primary Residence for at least thirty-six (36) consecutive months.
(e) If the Landlord or relative specified on the notice terminating tenancy fails to occupy the Rental Unit within 90 days after the Tenant vacates, the Landlord shall:
(i) Offer the unit to the Tenant who vacated it at the
same rent in effect at the time the Tenant vacated; and (ii) Pay to said Tenant all reasonable expenses incurred in moving to and from the unit, include lease termination fees. This subsection does not limit any other remedies a Tenant may have under this Chapter or applicable law. (iii) If the Landlord or enumerated relative fails to occupy the Rental Unit within 90 days after the Tenant vacates or does not occupy the Rental Unit as a Primary Residence for at least 36 months, the Landlord shall have the burden of producing evidence that the failure to occupy did not occur in bad faith. The Board may adopt regulations governing the determination of good faith. (f) If the Landlord or relative specified on the notice terminating tenancy fails to occupy the Rental Unit within ninety days and the previous Tenant declines to move back into the Rental Unit, any new Tenant moving into the Rental Unit will have as the original base rent the Rent in effect at the time the previous Tenant vacated.
(g) Eviction Protection for Elderly, Disabled, or Terminally Ill Tenants. A Landlord may not evict a Tenant pursuant to this subsection if (a) the Tenant has resided in the Rental Unit for at least three (3) years and is either at least 62 years of age or Disabled; or (b) if the Tenant is certified as being terminally ill by the Tenant’s treating physician. For the purposes of this subsection, notwithstanding the above, a Landlord may evict a Tenant who qualifies for the exemption if the Landlord or enumerated relative who will occupy the Rental Unit is also Disabled and no other units are available at the Property.
(h) Within 30 days after the effective date of a written notice of termination under this subsection is filed with the Board, the Board shall record a notice of constraints with the County Recorder identifying each Rental Unit on the property that is the subject of the subsection 5.54.030(C)(6) notice to vacate, stating the nature and dates of applicable restrictions under subsections 5.54.030(C)(6)(e), 5.54.030(C)(6)(f), and 5.54.030(E), and any other restrictions per applicable regulations. The Board shall 13 also send a notice to the Rental Unit that states the maximum Rent for that unit, and shall send an updated notice to the unit 12 months, 24 months, 36 months, 48 months, and 60 months thereafter, or within 30 days of such date. If a notice of constraints is recorded but the Tenant does not vacate the Rental Unit, the Landlord may apply to the Board for a rescission of the recorded notice of constraints. The Board shall not be required to send any further notices to the Rental Unit pursuant to this subsection if the constraints on the unit are rescinded.
(i) A Landlord may not evict a Tenant under this subsection if there is a comparable Rental Unit occupied by a Tenant who moved onto the Property more recently than the Tenant from whom the Landlord seeks to recover possession. (7) Withdrawal from Rental Market. The Landlord seeks in good faith to recover possession of all Rental Units on a parcel of land to permanently withdraw the units from the rental market or for demolition so long as the withdrawal is permitted by the Ellis Act (Government Code section 7060 et seq.). The Landlord must have fulfilled all requirements of section 5.55.060 and all regulations passed by the Board initiating the procedure for withdrawing Rental Units from rent or lease, with the intention of completing the withdrawal process and going out of the rental business or demolishing. Tenants shall be entitled to a minimum of 120-day notice or one year in the case a Tenant is at least 62 years of age or Disabled. Notice times may be increased by regulations if state law allows for additional time. (8) Buy-Out Agreements. Nothing in this Chapter shall expand or limit a Landlord and Tenant’s ability to negotiate or agree to end a tenancy voluntarily in exchange for money or other consideration. All buy-out agreements under this section must be in writing, provided in English and translated into any other language at the Tenant’s request, and include:
(a) A statement that the Tenant has the right not to enter into a proposed buy-out agreement;
(b) A statement that the Tenant may consult with an attorney of their choosing before entering into a buy-out agreement; (c) A space for each Tenant to sign and write the date upon which the Landlord provided the Tenant with the agreement. (9) Termination of Temporary Tenancy. The Landlord seeks in good faith to recover possession of a separately alienable Rental Unit for their occupancy as a Primary Residence. This shall apply only where the Landlord has previously occupied the Rental Unit as their Primary Residence and has the right to recover possession of the unit for their occupancy as a Primary Residence under an existing written rental agreement for a term of no more than 12 consecutive months that was executed with the current Tenants. The temporary Tenant must be provided, at the inception of the tenancy, with a written statement that includes the length of the tenancy and that the 14 tenancy may be terminated at the end of the temporary tenancy period. No relocation is required under this subsection 9.
(D) In any action to recover possession of a Rental Unit pursuant to this section 5.54.030, a Landlord must allege and prove that the Landlord seeks to recover possession of the unit with good faith, honest intent and with no ulterior motive for the reason stated in the termination notice. If a Landlord claims the Rental Unit is exempt from this ordinance, the Landlord must allege and prove that the unit is covered by one of the exceptions enumerated in subsection 5.54.030(B) of this Chapter. Such allegations must appear in the notice of termination of tenancy. Failure to make such allegations in the notice shall be a complete defense to any unlawful detainer action. (E) Right of Return and First Right of Refusal. All Tenants that are displaced based on sections 5.54.030(C)(5) or (C)(6) or shall have the first right of refusal to return to the unit if it should ever be returned to the market by the Landlord or successor Landlord. The return tenancy shall include the same terms as the original tenancy and the Rent shall be the Rent lawfully paid by the Tenant at the time the Landlord gave notice of termination on a basis listed in sections 5.54.030(C)(5) or (C)(6) plus any lawful adjustment under section 5.55.080 of Chapter 5.55. All notices of termination of tenancy served under sections 5.54.030(C)(5) or (C)(6) shall state the lawful rent in effect at the time of termination of tenancy. If the Tenant declines to reoccupy the Rental Unit after it is returned to the rental market, the lawful base rent for the new tenancy shall be the Rent lawfully paid by the Tenant at the time the Landlord served the termination notice, plus any lawful adjustment under this Chapter or Chapter 5.55. (F) School Year Protections for Educators and Students. It shall be a defense to an eviction under sections 5.54.030(C)(5) or (C)(6) if a child under the age of 18 or any Educator resides in the unit, the child or Educator is a Tenant in the unit or the child has a custodial or family relationship with a Tenant in the unit, the Tenant has resided in the unit for 12 months or more, and the expiration date of the notice of termination of tenancy falls during the school year.
(G) Written Warning Notice Requirements. Any written warning notice as described in subsections 5.54.030(C)(2)-(4) shall be served by the Landlord on the Tenant within a reasonable period prior to serving a notice to terminate tenancy and shall inform the Tenant that a failure to cure may result in the initiation of eviction proceedings, of the right to request a reasonable accommodation for disability, and the contact number for the Board. A reasonable period shall be presumed to be seven days. The notice shall also include sufficient details allowing a reasonable person to comply. The notice shall also include any information necessary to determine the date, time, place, witnesses present, and other circumstances concerning the reason for the notice.
(H) Retaliation is Barred. Notwithstanding the above provisions, possession shall not be granted if it is determined that the eviction is knowingly in retaliation for 15 the Tenant reporting violations of this Chapter, for exercising rights granted under this Chapter or other law, or for forming or participating in a Tenant Organization. (I) Additional Notice Requirements. In any notice purporting to terminate tenancy, the Landlord shall state the cause for the termination, and in any action brought to recover possession of a Rental Unit, the Landlord shall allege and prove compliance with this section All notices described in subsections 5.54.030(C)(2)-(4) shall be attached to any notices that purport to terminate a tenancy for which they correspond. The Landlord shall file with the Board a copy of any notice terminating tenancy within three (3) days after serving the notice on the Tenant. (J) Failure to Comply. Failure to comply with any requirement of this Chapter or any implementing regulation may be asserted as an affirmative defense in an action brought by the Landlord to recover possession of the Unit. Additionally, any attempt to recover possession of a Rental Unit or recover of possession in violation of this Chapter shall render the Landlord liable to the Tenant in a civil action for wrongful eviction for damages of not less than three times actual damages, including damages for emotional distress. The Tenant or the Board may seek injunctive relief, equitable relief, and money damages. In any action for equitable relief, it shall be presumed that a Tenant suffers irreparable harm through violation of this Chapter. A Tenant prevailing in an action brought under this Chapter that is not an unlawful detainer action shall recover costs and reasonable attorney’s fees. The statute of limitations for all remedies in this section shall be three years. The remedies under this section are cumulative, and may be used in addition to any other remedies in this Chapter or at law, statute, or ordinance.
5.54.040 REMEDIES.
(A) Affirmative Defense. A Landlord’s failure to comply with this Chapter, including but not limited to the identification of an applicable cause for termination described in section 5.54.030 and delivery of a completed notice of termination in accordance with the same, shall be an affirmative defense to an unlawful detainer action by Landlord.
(B) Civil Liability. Whenever a Landlord attempts to prevent a Tenant from acquiring any rights under this Chapter, retaliates against a Tenant for the exercise of any rights under this Chapter, or engages in activities prohibited under this Chapter, the Tenant may institute a civil proceeding for money damages or injunctive relief, or both.
This section creates a private right of action to enforce all terms, rights, and obligations under this Chapter. Whoever is found to have violated this Chapter shall be subject to appropriate injunctive relief and shall be liable for damages, costs, and reasonable attorneys’ fees, and whatever other relief the court deems appropriate. In the case of an award of damages, said award may be trebled if the trier of fact finds that the Landlord acted in knowing violation, reckless disregard, or otherwise willfully failed to comply with this Chapter. The court may award the defendant attorney’s fees and costs as the prevailing party in cases where plaintiff’s claim is deemed unreasonable, frivolous, meritless, or vexatious.
16 (C) Civil Actions to Determine Liability. Any Tenant may bring a civil action to determine the applicability of this Chapter to the tenancy. (D) Other Private Rights of Action. Nothing herein shall be deemed to interfere with the right of a Landlord to file an action against a Tenant or non-tenant third party for the damage done to said Landlord’s property. Nothing herein is intended to limit the damages recoverable by any party through a private action.
5.54.050 SEVERABILITY.
If any provision of this Chapter or application thereof to any person or circumstances is held invalid, this invalidity shall not affect other provisions or applications of this Chapter which can be given effect without the invalid provision or application, and to this end the provisions of this Chapter are declared to be severable. This Chapter shall be liberally construed to achieve the purposes of this Chapter and to preserve its validity.” SECTION 3. Compliance with CEQA. The Town Council finds that adoption of this Ordinance is exempt from the California Environmental Quality Act (“CEQA”) pursuant to section 15061(b)(3) of the State CEQA Guidelines because it can be seen with certainty that there is no possibility that the adoption of the Ordinance may have a significant effect on the environment, in that this ordinance applies residential tenant protection to existing residential units in the Town of Fairfax, which is solely an administrative process resulting in no physical changes to the environment. Accordingly, this ordinance contains no provisions modifying the physical design, development, or construction of residences or nonresidential structures.
SECTION 4. Severability. If any section, subsection, subdivision, sentence, clause, phrase, or portion of this ordinance, or the application thereof to any person or place, is for any reason held to be invalid or unconstitutional by a court of competent jurisdiction, such decision shall not affect the validity of the remainder of this ordinance. The Town Council hereby declares that it would have adopted this ordinance, and each and every section, subsection, subdivision, sentence, clause, phrase, or portion thereof, irrespective of the fact that any one or more sections, subsections, subdivisions, sentences, clauses, phrases, or portions thereof be declared invalid or unconstitutional.
SECTION 5. Effective Date and Posting. This Ordinance shall be effective 30 days following its adoption by the Town Council. Copies of this Ordinance shall, within fifteen days after its passage and adoption, be posted in three public places in the Town of Fairfax, to wit: 1. Bulletin Board, Town Hall Offices; Bulletin Board, Fairfax Post Office; and 3. Bulletin Board, Fairfax Women’s Club.
The foregoing Ordinance was introduced at a regular meeting of the Town Council on the ___ day of ______________, 2022, and duly adopted at the next regular meeting of the Town Council on the _day of , 2022, by the following vote, to wit:
17 AYES:
NOES:
ABSENT:
ABSTAIN:
Stephanie Hellman, Mayor
Attest:
Michele Gardner, Town Clerk Date