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Legal • March 1, 2005

Legal Stuff (Recent Cases)

Legal Stuff

Two recent cases—one already decided by the Court of Appeals, and one on deck---are in themselves of only modest significance.  But if their basic principles take hold, they may become important indeed.

Cook v. City of Buena Park  has been decided by the Court of Appeals against the City.  Its Ordinance required landlords, on the demand of the Chief of Police, to evict tenants accused of “illegal drug activity”.  In the case at hand, the tenant's roommate was accused of possessing “drug paraphernalia”, the landlord was asked to evict the tenant as well as the roommate.  Failing this, the landlord would be subject to various fines and other punishments. 

The landlord complained that he was on the horns of a classic dilemma.  If he moved to evict the tenant could counter-sue for wrongful eviction if police evidence turned out to be weak.  If he refused the police order, he faced misdemeanor punishment (this might include jail time). There was no assurance in the ordinance of police cooperation in the eviction process, only a promise of punishment if the action was unsuccessful.

The Court found the Ordinance unconstitutional, relying on due process arguments:  the abbreviated ten day notice period, the lack of assured police support in the court action, and the penalties imposed on the landlord if he lost the action added up to an unconstitutional taking of landlord property rights.  Significantly one of the appeals judges wanted to go further and also to consider the unfairness of punishing the tenant for the misdeeds of a roommate.

Interestingly the court noted a pilot program in Alameda County which also requires a landlord to evict in cases of suspected drug activity.  While the procedural provisions are better than those in Buena Park, the bottom line is the same:  the landlord must pay if he fails to evict.  Moreover, in Berkeley, he/she would face all of the problems posed by the City's “just cause” eviction laws.  Our prediction:  the Buena Park case is a direct threat to the viability of the Alameda County procedure.

Flynn v. Berkeley Rent Stabilization Board  is now before the Court of Appeals.  The BPOA Board of Directors has agreed to support this appeal form a Superior Court decision which upheld rent control registration requirements as applied to an owner -occupied duplex that had been vacant when purchased, and which had never been registered.  The Rent Board, hungry for revenues, told the landlord that without proof of owner occupancy in 1979, he would have to register.  The landlord replied with this lawsuit which argues that there is no reasonable basis for discriminating between duplexes which are owner occupied in 1979 and those which were not:  so long as there are no current tenants when they are sold they should be exempt from rent control.

Flynn would seem to be a narrow situation, and its outcome of little importance to those of us who suffer from the bigger problems posed by Berkeley's anti-private housing provider prejudices.  But let's not be too quick.  If a court finds that it is irrational to distinguish between duplexes based on their status in 1979, how should it treat the question of any apartment building which has become vacant and which is sold to a new owner?  What, constitutionally, is the basis for discriminating between buildings based on their status in 1979 when in all meaningful ways their status is identical in 2005?  Indeed the Flynn brief brushes up against this issue, which is whether a distinction which might have been reasonable when the rent law was passed might have become unreasonable with the passage of time.

There are other issues in Flynn, but the discrimination one is the biggie.  Stay tuned.


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