City Council
Report
City Council Meeting: August 23, 2022
Agenda Item: 10.H
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To: Mayor and City Council
From: Douglas Sloan, City Attorney, City Attorney's Office, Code Enforcement Subject: Introduction and First Reading of an Ordinance Amending the City’s Tenant Protection Laws
Recommended Action
Staff recommends that the City Council consider introducing for first reading an ordinance amending the City’s Housing Anti-Discrimination Code, Tenant Harassment Code, and Tenant Protection Code.
Executive Summary
There are five proposed amendments, all of which concern Article Four of the Santa Monica Municipal Code (S.M.M.C.). The first three would amend the Housing AntiDiscrimination Code (Chapter 4.28) and the Tenant Harassment Code (Chapter 4.56), and would expand the list of protected classes for tenant protections, to be consistent with recent changes in state and federal fair housing laws. The amendments provide additional examples of unlawful discriminatory harassment, and also provide examples of unlawful housing discrimination based on source of income, in particular clarifying what constitutes discrimination targeting recipients of housing subsidies such as Section 8 housing vouchers and COVID-related rental assistance.
The final two proposed amendments are to the Tenant Protection Code (Chapter 4.27).
The first of those two require landlords to report attempted evictions to the City. With studies of Los Angeles County evictions showing that unrepresented tenants face disruptive displacement over 90% of the time and less than 10% of the time when a landlord serves an eviction or unlawful detainer, this reporting requirement will help the 2 of 9
City track all endeavors to evict, and also assist the City in assessing evictions’ impact on the community and the impact of the City’s pilot Right To Counsel program.
The second would require landlords to provide tenants notice of their rights to attorney’s fees along with any change to attorney’s fees provisions. There have been several attempts by landlords to change a residential lease’s attorneys’ fees provisions with language that seemingly thwarts the tenant’s pursuit of attorney’s fees under Santa Monica’s tenant protection laws. However, the right to pursue fees under those laws and other civil rights in housing laws is not waivable. Therefore, such attempts to limit fees are misleading.
Discussion
The primary purpose of these amendments is to update, clarify, and strengthen Santa Monica’s tenant protection laws.
A. Amendment to the Housing Anti-Discrimination Code, SMMC Section
4.28.030
Santa Monica’s fair housing law, the Housing Anti-Discrimination Code, prohibits landlords from committing several types of housing discrimination such as refusal to rent, making discriminatory statements, and refusing to make reasonable accommodations or modifications.
As an affordable housing measure, Santa Monica amended its fair housing law in 2015 to include protections against source of income discrimination. In particular—and in a pioneering expansion of what “source of income” included—Santa Monica defined “source of income” to include any type of rental assistance, such as the Section 8 housing voucher. The impetus for this law was evidence that Santa Monica landlords were refusing to rent to Section 8 voucher holders or refusing to let their rent-burdened tenants use a voucher or other types of rental assistance.
Community education about and enforcement of that law by the Public Rights Division of the City Attorneys’ Office and the Legal Aid Foundation of Los Angeles has resulted in dozens of refusals to rent by landlords being reversed. The enforcement program also helps bring the diversity of the Section 8 pool to the City’s population in terms of 3 of 9
income and race. But at the heart of the program are stories of low-income people and families who had been turned away—sometimes several times. With the law and enforcement protecting them, they were finally able to either move into a new home in Santa Monica or were able to afford to stay in their existing home.
The City Attorney’s Office offers for consideration that the source of income protections be clarified by providing specific types of discriminatory actions, all of which have been documented in Santa Monica. Providing these examples is declaratory of existing law and it will help landlords better understand their obligations and tenants their rights. It will also help advocates, the courts, and the CAO with enforcement.
The proposed language would be added to Section 4.28.030 and would read as follows:
(i) Refuse to accept from a prospective or current tenant rent in the form of rental assistance from any federal, state, local, or non-profitadministered benefit or subsidy program including, but not limited to, the Section 8 voucher program. Refusal to accept includes failure or an unreasonable delay in filling out and returning any necessary paperwork.
This amendment’s clarification that a “current tenant” is protected from discrimination will also help the City with one of its top three stated goals in its 2020 Assessment of Fair Housing -- to “prevent displacement of low- and moderate-income residents.” The CAO will continue to assign an attorney from its Public Rights section to oversee and monitor the law. The CAO will work with the Housing and Human Services Division to initiate education efforts to inform families, tenants, landlords, and legal aid providers about this amendment.
B. Amendments to the Tenant Harassment Ordinance, SMMC Chapter 4.56
1. Adding specific examples of unlawful harassment
The City’s Tenant Harassment Ordinance prohibits landlords from bad faith harassment of tenants. The ordinance bans twelve types of harassment, including interruption of services, discrimination, coercion to vacate, and baseless eviction attempts. 4 of 9
Subsection 4.56.020(f) prohibits a landlord from, in bad faith, influencing or attempting to influence “a tenant to vacate a rental housing unit through fraud, intimidation or coercion[.]”
Staff proposes that specific examples of fraud, intimidation and coercion be provided.
Providing these examples will be declaratory of existing law and will help landlords better understand their obligations and tenants their rights.
The proposed language would be added to Section 4.56.020(f) as follows:
Examples of such influence or attempts include but are not limited to the following: excessive rent increases, baseless threats to evict, threats to report immigration status, terminating tenancy on a fraudulent basis of owner-occupancy, excessive and baseless entries.
A California appellate court has recently affirmed a city’s prohibition of excessive rent increases made in bad faith. The California Immigrant Tenant Protection Act of 2020 prohibits threats to report immigration status. Such threats and the other examples have all been the subject of harassment lawsuits filed by the Public Rights Division and with successful outcomes.
2. Adding new classes protected under fair housing laws.
The current law provides an exhaustive and limited list of protected classes. A landlord may not in bad faith “violate any law which prohibits discrimination based on race, gender, sexual preference, sexual orientation, ethnic background, nationality, religion, age, parenthood, marriage, pregnancy, disability, AIDS or occupancy by a minor child[.]” This list has not been updated in over a decade. It does not include the City’s own relatively new protected class, source of income and it does not include new state law protected class of immigration status.
The additional protected classes would be added to Section 4.56.020(h), with the proposed changes below in bold italics:
(h) Violate any law which prohibits discrimination based on race, gender, sexual preference, sexual orientation, ethnic background, nationality, religion, age, parenthood, marriage, pregnancy, disability, AIDS or 5 of 9
occupancy by a minor child, immigration status, source of income, or any other class expressly protected by a local, state, or federal law.
The proposal not only updates the ordinance with new classes but changes the nature of the list from an exhaustive, limited list to a flexible one upon which any new class protected under future state or federal laws are immediately protected from bad faith harassment in Santa Monica.
C. Amendments to the Tenant Protection Code, Chapter 4.27.
1. Eviction Reporting Requirements
The primary purpose of this proposed ordinance is to monitor the extent of evictions and their disruptive impact on Santa Monica tenants and families. A secondary purpose is to assess the impact of the pilot Right to Counsel program. In December of 2020, the City passed as part of its pandemic emergency orders an order requiring landlords to report all endeavors to evict to the City Attorney’s Office. The order expires on March 31, 2022. Staff recommends converting the order into an ordinance so that the City has a permanent means to assess the impact of evictions and the pilot Right to Counsel program.
In the wake of the public health and economic crises created by the COVID-19 emergency, the City is at risk of an unprecedented wave of evictions. City and state eviction moratoriums have delayed and blunted the impact of potential early evictions.
But there is little doubt that among Santa Monica’s 32,000-plus renter households, the aftermath of the COVID-19 emergency will result in a significant number continuing to be unable to pay rent and facing eviction efforts in a system stacked against unrepresented tenants. Data suggests as well that the tenants most likely to face eviction will be minority and low-income tenants.
Making sure that Santa Monica’s tenants have access to legal representation aligns with the City’s commitment to maintaining an inclusive and diverse community and offering housing at all affordability levels. Along with its measurement of evictions’ impact on the community, the reporting requirement will also help the City monitor how well local programs and advocacy are doing with respect to legal services. 6 of 9
According to the 2019 STOUT report, Cost-Benefit Analysis of Providing A Right to Counsel to Tenants In Eviction Proceedings, Los Angeles County’s most vulnerable tenants are frequently unrepresented and evicted by landlords who are represented by experienced counsel. Providing tenants with counsel is critical to leveling the playing field and would significantly improve the likelihood that eviction cases are decided fairly and on the merits.
The STOUT report concluded that 97% of Los Angeles County tenants are unrepresented in eviction cases while landlords are unrepresented in just 12% of their cases. Unrepresented tenants in LA County get displaced 99% of the time, but if they get representation, they avoid displacement 95% of the time. The STOUT report also concluded that 25 of 51 Right to Counsel programs likely result in many direct and indirect benefits to the community: decreased use of shelters, increased housing stability, decreased impact on employment, decreased impact on law enforcement, and decreased impact on the health of displaced children.
The reporting requirement will enable the City to create its own report each year, much like the STOUT Report, and assess the impact that evictions have in the City. The information will also help inform need for the City’s right to counsel program and help the City accomplish one of its top three stated goals in its 2020 Assessment of Fair Housing -- to “prevent displacement of low- and moderate-income residents.” The CAO will assign an attorney from its Public Rights section to oversee and monitor the program. The CAO will work with the Housing and Human Services Division to initiate education efforts to inform families, tenants, landlords, and legal aid providers about the availability of this program and the new reporting requirements.
This ordinance is drafted to parallel a nearly identical emergency order issued in December of 2020 and which has been extended until December 31, 2022.
2. Attorney’s Fees Notice Requirement
The primary purpose of this proposed ordinance is to assure that tenants are not misled about their rights to pursue attorneys’ fees under Santa Monica’s tenant protection laws. 7 of 9
The Santa Monica Municipal Code (S.M.M.C.) has two tenant protection laws that have attorneys’ fees provisions, the Housing Anti-Discrimination and Tenant Harassment Codes. A landlord who violates the provisions of these Chapters is liable for attorneys’ fees and costs, along with damages and penalties. (See S.M.M.C. section 4.28.060 (d) and Section 4.56.040 (d). California’s Fair Employment and Housing Act (FEHA) also makes landlords liable for attorneys’ fees and costs. (See Cal. Gov’t Code section 12965(b))
The CAO has become aware over the past few years of landlords and their attorneys sending their in-place tenants a notice that changes the attorney’s fees provisions in their lease. For example, we have seen landlords attempt amendments that include sweeping language that seemingly removes any chance of pursuing fees in any type of legal dispute that might arise between the landlord and the tenant. In other examples, the amount of fees have been capped.
However, Santa Monica’s two attorneys’ fees provisions cited above do not have any exception nor do they allow any caps; the landlord is liable for fees regardless of what a lease might provide or an amendment to the lease.
Therefore, such amendment attempts would very likely be found to be null and void if the tenant pursued her attorneys’ fees as the prevailing party at the end of litigation.
However, the concern is that unknowing tenants and even their attorneys might be misled into believing they are prevented by the amendment from pursuing fees or that the total is capped by the amendment. This could discourage tenants from pursuing their rights to begin with. It could also discourage attorneys from taking the case, especially in the case of low-income tenants who cannot afford to pay attorneys’ fees. (Attorneys’ fees provisions are often included in civil rights laws to better assure the possibility that the tenant, especially low-income tenants, can obtain willing legal representation.) It could also thwart the Santa Monica laws providing for those fees.
The proposed notice requirement does not delve into the language of specific attempted amendments. Rather, it simply requires a notice about the effect of Santa Monica’s attorneys’ fees provisions.
Here is the language of the proposed notice:
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“The attorney’s fees provisions in tenant protection laws such as the City’s Tenant Harassment Code and Housing Anti-Discrimination Code that allow a prevailing tenant to pursue his or her own attorney’s fees from the landlord (fee-shifting) cannot be waived by a tenant or changed or capped by a landlord’s amendments to a lease. Any such lease amendments or provisions are null and void with respect to the fee-shifting in tenant protection laws.”
Requiring this notice will also work hand in hand with the pilot Right to Counsel program by making it clear that tenants and their attorneys have the right to pursue attorneys’ fees if an eviction case involves fair housing or tenant harassment violations. It will also help the City accomplish one of its top three stated goals in its 2020 Assessment of Fair Housing -- to “prevent displacement of low- and moderate-income residents.” Conclusion
For the foregoing reasons, staff finds that there is a significant public interest in making these amendments to update, clarify, and strengthen the City’s tenant protection laws.
Enforcement
As a matter of standard practice, the Public Rights Division will conduct outreach and education about these amendments. Enforcement itself occurs through warning letters and then, when necessary, lawsuits.
The City of Santa Monica has a long history of protecting tenancies to stabilize housing.
The Public Rights Division (PRD) of the City Attorney’s Office has also consistently and actively enforced tenant harassment and anti-discrimination laws to the benefit of many.
The PRD also provides significant community education and rights projects that help both landlords and tenants better understand their rights and responsibilities. Those efforts include two housing rights workshops each year attended by nearly 150 people annually and articles in the Santa Monica Daily Press that often focus on housing rights.
Financial Impacts & Budget Actions
No financial impacts will result from these amendments. 9 of 9
Prepared By: Eda Suh, Deputy City Attorney
Approved Forwarded to Council
Attachments:
A. ORD-ord-Tenant Amendments
B. Written Comment