Michael Simkin

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landlord tenant logoT & A Drolapas and Sons LP v SAN FRANCISCO RESIDENTIAL RENT STABILIZATION AND ARBITRATION BOARD et al., and GERALD BORJAS (2015) 238 Cal.App.4th 646) –> Costa Hawkins case against landlord

Landlord cannot increase rent after parent (named tenant) vacates leaving adult child occupant in apartment

Facts: The Laras moved into a nine-unit building in San Francisco in 1995.  At that time, Borjas, their eldest child was six years old.  In 2010, the Laras moved into a home in Daly City but Borjas remained.  The Laras continued to make the rent payments on the San Francisco apartment.  In 2011 the landlord served a notice increasing rent from about $1,171 per month to $2,000 a month.  Borjas contested the increase at the Rent Board.  The Board denied the rent increase.  Landlord appealed to Superior Court and the court similarly denied the rent increase.  Landlord appealed.
Continue Reading Landlord cannot increase rent of rent controlled apartment to market level after parent vacates leaving adult child in possession

tenant_rightsBoston LLC v. Juarez 245 Cal. App. 4th 75 (Cal. App. 2d Dist. 2016)

NIVO 1 LLC v. Antunez 217 Cal. App. 4th Supp. 1 (Cal. Super. Ct. 2013)

What is material, and the purpose behind the lease term is important when a forfeiture is being sought.  For example, renter’s insurance, and other lease terms that “benefit the tenant, not landlord” cannot be the basis for a material breach to support an eviction.

Several years ago,  a well known Los Angeles UD Mill marketed that he had a “secret way to evict a rent control tenant”.  The “secret” was to serve a notice to unilaterally change the terms of tenancy to remove something supposedly “not material” but could later be used to evict a tenant or upset the tenant to leave.  Landlords then tried removing various items they argued were “not a reduction in rental services” to upset rent control, but something that was material enough to support an eviction.  These two cases are the result of this “secret” along with a change to the Los Angeles Rent Stabilization Ordinance.  See L.A. Mun. Code, § 151.09.A.2(c).  It is ironic that in the NIVO case, the landlord served a notice of change of terms of tenancy “to render all breaches material”.  The Notice stated: “3. Renter agrees that Renter’s performance of and compliance with each of the terms of the rental agreement constitute a condition on Renter’s right to occupy the premises. Any failure of compliance or performance by Renter shall allow Owner to declare a forfeiture of this agreement and terminate Renter’s right to possession. Any breach of the contract is a material breach.” (Italics added.)”  Both Courts did an excellent analysis of the material vs. non material breach. 
Continue Reading Not having Renter’s insurance is not a material breach to support an Unlawful Detainer

Landlord paid $16,000 to settle a Department of Fair Employment and Housing complaint after retaliating against children who played in the common area by removing a fence making it more dangerous to play and serving a 60 day notice to quit.No-Playing-Child-Safety-Sign-K-4217
Continue Reading $16,000 paid to settle DFEH claim by tenant against landlord for telling children they cannot play on the stairs and parking lot.

Yvanova v. New Century Mortgage (2016) 62 Cal.4th 919 house-fraudclosure

Now a borrower can survive demurrer or summary judgment if he shows the assignment is void.  has standing to challenged allegedly improper securitization of mortgage loan

The Court now found that a break in the chain of title due to a void assignment is prejudicial to a borrower and they now have standing to sue for wrongful foreclosure.  This is a huge change for plaintiffs, but essentially only means that most cases live to die another day.
Continue Reading Calif. Supreme Court Helps Wrongful Foreclosure Plaintiff

Wong v Stoler, 237 Cal.App.4th 1375Thinking is difficult so judge

The trial courts if find rescission for nondisclosure by a seller must unwind the transaction even if difficult and complex.  E.g, Judges cannot be lazy!

Buyer of a home sued seller for not disclosing the fact that their sewer system was not hooked up to the city’s public system.…

Shark predatory lendingTypical of 2006 predatory lending practices, the mortgage payments exceeded owners’ monthly income by more than $1000.  This was found to be sufficient to plead substantive unconscionability as grounds to set aside nonjudicial foreclosure sale in Orcilla v. Big Sur, Inc. (2016) 244 CA4th 982.
Continue Reading Predatory Lending Per se: Orcilla v. Big Sur, Inc. (2016) 244 CA4th 982

evict no moneyTaylor v. Nu Digital Marketing, 245 Cal.App.4th 283

The court found monthly payments to be “rent” and upon default in payment of these “interim payments”, before the purchase price is paid, re-characterized the installment sales agreement as lease and seller can bring unlawful detainer against buyer.

The parties signed a “Contract of Sale Residential Property,” by which plaintiffs agreed to sell to defendants a piece of property for $1.2 million, to be paid after 5 years. Meanwhile, the defendants were to make monthly payments to plaintiffs equal to the amount plaintiffs paid on their mortgage (referred to as “probationary installment payments”), which did not apply to the purchase price. Defendants were given immediate possession but if they failed to make timely payments of any probationary payments. The written agreement provided that plaintiffs could serve the “buyers” with a five day notice to quit if in default and they were to immediately vacate.

Defendants defaulted ten months later and plaintiffs filed an unlawful detainer complaint, alleging that the agreement created a tenancy, requesting possession of the property, unpaid back payments and forfeiture of the agreement. The trial court found the contract to be a lease and granted the requested relief. Defendants appealed, contending that unlawful detainer was not an appropriate form of action.Continue Reading An Installment Real Estate Sales Agreement is a Lease until the buyer pays the purchase price

ramgsgate wineryRam’s Gate Winery v. Roche, 235 Cal.App.4th 1071

Purchasers of the land for use by a winery http://www.ramsgatewinery.com/ sued the seller for not disclosing an earthquake fault on their property four years before closing escrow. Buyers sued in tort for nondisclosure but also in contract for breach of a provision in the sales agreement requiring the vendors to disclose all material facts. The trial court granted summary judgment against the contract claim on the ground that it had not survived the closing of escrow and had merged into the deed which the purchasers accepted the Court of Appeal reversed in favor of the buyer winery.

This case involved a fairly esoteric legal issue concerning the merger by deed doctrine and found in this case, it did not bar admission of extrinsic evidence under Code Civ. Proc., § 1856, subd. (h), concerning a buyer’s understanding of a disclosure covenant and warranty as continuing after the close of escrow because the declaration proposed an interpretation of the real estate purchase agreement to which it was reasonably susceptible.

The Court found that the contract provisions are deemed merged into deeds only when there are inconsistent provisions in the two documents or where their was a clear intent to do so in this case, there was no such inconsistency or obvious intent to have the disclosure provision not survive close of escrow, and therefore no merger.Continue Reading Merger Clause in Real Property Sale may not merge into deed at closing (CCP §1856)

spring breakers arrested

Spring Breakers may have to look elsewhere for an Airbnb rental.  In Harrison v. City of Rancho Mirage, 243 Cal. App. 4th 162 (2015)

The City of Rancho Mirage passed an ordinance regulating rental of  private homes for short-term vacation rentals. Among other things, the City requires that a person over age 30 sign the…