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UPDATED: April 20, 2010

RHO v. The City of Hayward

 RHO WINS IN SUPERIOR COURT
City of Hayward Immediately Appeals Court's Decision

A Message from the RHO Board President, Thomas R. Silva, CPM

On March 26, 2010, Judge Roesch of the Alameda County Superior Court, ruled in favor of the RHO on the two most important aspects of our lawsuit against the City of Hayward 's Rental Inspection Program.

First Issue – Who can Grant Consent to Inspection of a Tenant Occupied Dwelling?

The Fourth Amendment of the United States Constitution prohibits unwarranted search and seizure of private property by a governmental agency without a search warrant. Our tenants are in possession of their rental units. Under the Fourth Amendment and California State Law, only the tenant can grant consent to a governmental agency if the agency wants to inspect the tenant's private residence. On December 19, 2009, the City of Hayward amended the Ordinance to read as follows:

“It shall be the responsibility of the Owner or the Owner's designated representative to make a good faith effort to obtain the consent of the tenants to inspect the subject rental housing units or otherwise obtain legal access to the units.”

The RHO objected to this change as it did not cure the defects in the City Ordinance and Inspection Notification process.

In his ruling, Judge Roesch stated “the objection is that the ordinance requires the Owner to become an agent of the state seeking a governmental intrusion with the added coercive impact that arises from the owner being the tenant's landlord.

This objection is sustained. The City's ordinance modification requiring an Owner of a rental unit “to obtain the consent of the tenant” is not cured by the slight modification that an Owner must only make a “good faith effort” to do so. The Owner may lawfully be required to forward a notice of the time of the date of an inspection to the tenant, but may not be held responsible to obtain the tenant's consent to permit the governmental entry for inspection.”

So Judge Roesch has affirmed that only the tenant can grant consent for the City to inspect their residence.

Second Issue – Can the City Fine/Penalize a Landlord for the Tenants Refusal to Grant Consent for the City Inspection?

The December 19, 2009 Ordinance revisions failed to revise the fee schedule of the Ordinance.

Judge Roesch wrote, “The fifth objection is that the modifications to the ordinance approved by the City of Hayward do not revise section 9-5.401, providing for fees or penalties to be paid by the Owner for the failure (or refusal) of a tenant to submit to the City's inspection demand. While the landlord/owner may be required to notify the tenant of a scheduled inspection and may be required to attend the inspection, the City may not impose a fee or a sanction if an inspection or re-inspection cannot proceed unless it is an act of the landlord/owner which frustrates the inspector's ability to inspect. And while it is a policy choice by the City if it chooses to not sanction a tenant for their refusal to consent to the City's inspection, it is not within the City's discretion to sanction the landlord/owner for the tenant's act.

So it is now clear that the City cannot penalize a landlord for a tenant's actions.

Judge Roesch further ordered, “The fourth and fifth objections are sustained and the City is directed to cure these defects forthwith and make further return of the Writ showing full compliance with the Court's writ within 90 days.

However, instead of curing the defects, on April 7, 2010 the City chose to file an appeal to the Court of Appeal, State of California , First Appellate District. This decision has statewide significance for all landlords in California . The RHO will continue to litigate this matter in the Appellate Court on behalf of our members and our customers in Hayward .

So what does this mean for Hayward landlords and where do we go from here?

The big question is what should a member do if you get an inspection notice while we are in the appeal process? As always, we urge you to contact your legal counsel on how to proceed. Our litigation counsel calls your attention to the following:

Landlords Presence at an Inspection

We were concerned that since the inspection is between the tenant and the City that it is unconstitutional for the City to require a landlord to be “present” at the time of inspection.

Judge Roesch wrote, “The second objection (that requiring owners or their representatives to be present at the time of the inspection violates Civil Code § 1954 and the Constitution of the United States ) is overruled. Once the consent of the tenant is given to the City Inspector, Civil Code Section 1954 does not proscribe the landlord's presence at the inspection. Further, requiring the landlord's presence is neither arbitrary nor unreasonable as the landlord frequently bears the burden of making repairs of habitability defects discovered by the inspectors.

Based upon the above, it is very clear that a landlord must be “present” at an inspection, but what does “present” mean? That the landlord is on site? That we must enter unit with inspector? Or, can we wait outside while the inspector does the inspection? Isn't it the inspector's job to develop deficiency list for us to correct afterwards?

It is our counsel's opinion that a landlord is “present” if they are on the property and remain outside of the unit while the inspector performs the inspection.

Landlords Forwarding of an Inspection Notice to Tenant

The most recent City inspection notices contain several misstatements. The RHO 's counsel has developed a notice to the residents (click here) which informs the resident of the following:

  1. That only you as the tenant can consent to the inspection. The inspector can only enter your home if you allow them to do so. You have the right to refuse the inspector's access to your residence. Under the Fourth Amendment of the United States Constitution, the inspector cannot make a warrantless entry into your home without your consent.
  2. Should you consent to the inspection, you will need to be present at the time of the inspection. Building management will not provide the inspector entry to your unit or go inside your apartment with the inspector during the City's inspection.
  3. As per State Law, you may be held responsible for the cost of repair for damages caused by a lack of ordinary care or neglect.
  4. If you have any questions, please contact the City of Hayward .
  5. Please let us know if there are any items in your home that needs repairs.
  6. Please note that this letter is not a notice to enter as per California Civil Code Section 1954.

Below, please find links to the various documents:

We've been told that the City will take this lawsuit all the way to the California Supreme Court. That's how badly they want the landlord to facilitate the mandatory Inspection Program despite its now adjudicated violation of the Fourth Amendment of the U. S. Constitution and California State Law.

This position has been reinforced by the City's action to appeal the March 26, 2010 decision. In fact in January 2010, prior to the final judgment, they hired outside counsel to assist them in the appeal.

Now more than ever, it's very clear that the City wants to preserve the existing mandatory program at all costs. We must stand fast and defend our common property rights all the way to the California Supreme Court.

If you have a City of Hayward landlord who has an inspection in progress or has received a notice of upcoming inspection or if you have been the victim of harassment or retaliation or a billing for fees assessed with the inspection program, we urge you to do the following:

Consult with your legal counsel on how you should proceed. Please share with them a copy of this message for your counsel's review.

Contact the RHO – Please fax us a copy of the inspection demand to 510-537-9541. If you've been harassed by the City Inspectors, please fax us a detailed summary of your experiences. We will use this to build our case of systemic retaliation by the City Staff.

We also want to hear from you as to how you feel about your Association taking this action. Please email the Board of Directors at:

tellrho@rhosource.com

Thank you for your ongoing support of our Rental Housing Industry. Please contact our Executive Director, Mr. Tim May at the above email address or by phone at 510-537-0340, if you have any questions or concerns.

 

Respectfully yours,

Thomas R. Silva, CPM

President