The Richmond Progressive Alliance kicked off the petition drive for their new Rent Control initiative this week with the goal of placing it on the November ballot.

I suspect that few people who sign these petitions make any effort to really understand them, but in case someone does, I am providing some useful information. Whether or not you like the concept of rent control, you should know that the initiative, known as the Richmond Fair Rent, Just Cause for Eviction and Homeowner Protection Ordinance.
The initiative, like its predecessor passed and then rejected by the City Council in 2015, is poorly drafted, replete with internal inconsistencies and may be illegal.

1. 11.100.060 defines the powers of the Rent Control Board.  It consists of 5 members, to be appointed by the City Council.  They must be residents of Richmond, but do not have to be citizens or voters.  The Rent Board is entirely separate and independent of any other government body.  Section 11.100.060(m).  It has the full and exclusive authority to set its own budget, and “The City Council and the City Manager shall have no authority to oversee, supervise, or approve the budget”.  Section 11.100.060(n).  The Board also has full authority to a) hire anyone they want, including more staff or consultants; b) enter into any contract they want to procure goods or services; c) hire and pay attorneys, whether to advise or litigate – and all with no oversight or control by the Council.  Moreover, the Board can require – without limitation or oversight – that the costs for funding their budget be taken directly from the General Fund: “The Board is empowered…to receive funding…from any available source”.  Section 11.100.060(l). 

Three appointed Board members (a majority), none of whom have to be citizens of Richmond, will have full authority of the City’s purse strings, with absolutely no oversight or control from the Council, the City Manager, or any other City department.  They may spend from the General Fund as they see fit, hire any employees they want, including staff attorneys, counselors, and hearing examiners, and enter into any contracts they want.

The Board may also pay themselves compensation as they see fit, and are not limited to the nominal amounts that most commissions are statutorily limited to.  They may establish a physical office of whatever size and cost they desire.

2. Any violation of the Ordinance by a Landlord is a misdemeanor, punishable by “imprisonment in the county jail not exceeding six months”.  Section 11.100(d), referring to RMC 1.04.100 and California Penal Code Section 19.

3. Rent is capped at the amount charged on July 21, 2015 – which, if this passes, will be approximately two years prior to its enactment.

4. Landlords may not prevent a subtenant from moving into their property, and may not terminate a lease based on an unapproved subtenant moving in.  Section 11.100.050(2)(i).  Once a subtenant moves in, they become a Tenant, with all the rights and privileges granted under this ordinance.  Section 11.100.030(r).  A Landlord may end up with a tenant they don’t even know, but who is protected under this ordinance.

5. Any repair or improvements work done to a rental unit must be pre-approved by the Board, and “unless due to a documented emergency affecting a Tenant’s health and/or safety”, a landlord may not demand entry with 24 hour notice (as required by state law) to repair their property without prior approval from the Board.  Section 11.100.050(a)(4).  There could be many repairs that may be an emergency for the landlord (like water damage and wood rot) that could not be fixed without pre-approval from the Board.

6. If Landlord owns a 1 bedroom house and a 5 bedroom house that is then vacant, and wants to repair the 1 bedroom unit in a manner that temporarily displaces the tenant, they must offer the 5 bedroom unit to the tenant (at the tenant’s option) at the same cost as the 1 bedroom unit.  Section 11.100.050(5)(C).  This very likely violates Costa-Hawkins.

7. For an owner-move in eviction, the owner must move in within 90 days.  If they fail to do so, they must a) give the unit back to the tenant; and b) pay the tenant substantial damages.  Section 11.100.050(a)(6).  This will mean an owner will not be able to make any major repairs, even if necessary, before moving in.

8. The Rent Board may both raise and lower the amount a landlord may charge for rent, and at their discretion.  Section 11.100.060(e).  They will be the sole determiner of what a landlord may charge in rent, and whether the current rent is too high or not.  If they belief the current rent being paid is too high (even if it is legally consistent with the Base Rent definition), they may order the Landlord to lower it to whatever amount they feel it is worth.  If the Landlord refuses to comply, it is a misdemeanor, punishable by up to six months in jail.  Section 11.100.100(d).

9. Contradictions and Conflicts:

A. If an owner needs to substantially repair or demolish a house, they must first obtain a permit, then, after doing so, they must provide up to one year notice to the tenant. Section 11.100.050(a)(7).  Under current City code, a permit expires after six months, and will have expired well before the tenant vacates.

B. Before proceeding to evict a tenant for 1) breach of the lease; 2) nuisance; or 3) failure to allow the landlord access, the Landlord must serve a written notice stating that “a failure to cure may result in the initiation of eviction proceedings”.  Section 11.100.050(d).  However, it a misdemeanor (11.100.100(d)) for a landlord to “threaten to terminate a tenancy, verbally or in writing” unless the failure to cure has already occurred.  Section 11.100.050(a).  Thus, a landlord may not evict on this basis without first committing a misdemeanor (punishable by six months in jail).

C. A Landlord may not evict a tenant for non-payment of rent, if prior to non-payment, the tenant communicates their right to withhold rent for repairs -- even if the withholding is not justified.  Section 11.100.050(e).  All a tenant has to do if they can’t pay rent is say they are withholding it. Even if the reason is unjustified or baseless, it would be a misdemeanor for the Landlord to issue a notice to pay or quit, or evict on that basis.

D. A hearing examiner (employee of the Rent Board) will decide individual cases, and the decision will be immediate, and not stayed on appeal.  Section 11.100.070(d)(11); however, no decision will be final until 30 days after the decision.  Section 11.100.090.

Regardless of the technical flaws in the proposed ordinance, there is no evidence that it will actually work to prohibit rent increases. In the article below, Joe Mathews make an an interesting comparison between rent control and Proposition 13, both with originally good intentions but in the end massively exacerbating inequities.

Joe Mathews: Rent control isn’t the solution to California’s housing shortage

A contractor moves roofing material on a home under construction in San Ramon in January. Joe Mathews says rent control isn’t going to solve California’s housing shortage.
David Paul Morris Bloomberg

By Joe Mathews March 30, 2016 9:00 AM
Zócalo Public Square

Rent control won’t solve California’s housing problems. But 2016 threatens to become the Year of Rent Control, as cities, many in the Bay Area, seek to enact or strengthen laws that limit how much landlords may raise rents.

In San Jose, multiple proposals to tighten rent controls are being debated in the City Council; some could go to the ballot. A ballot initiative to cap rent increases was just filed in Oakland. In San Diego, a tenants’ movement wants to establish new rent controls.

The attention to rent control is understandable – and unhelpful. Rent control is a policy that, as libraries full of research demonstrate, doesn’t accomplish its avowed purpose to make more affordable housing available.

As the state’s nonpartisan Legislative Analyst’s Office showed in a 2015 report, the heart of our housing shortage is that Californians have long failed to build anywhere close to enough new housing to accommodate the number of people who live here. In this decade, just one new housing unit has been approved for every five new Californians.

The reasons are many and related: community resistance, environmental regulation, a lack of fiscal incentives for local governments and high costs of land and construction. Given all those barriers, today’s debate over rent control seems beside the point.

If rent control lowers prices and produces stability for tenants, as its supporters claim, why are cities with rent control – among them Beverly Hills, Los Angeles, Palm Springs, San Francisco, Santa Monica and West Hollywood – so expensive?
On the other side of the question, opponents of rent control sound ridiculous when they warn that it discourages new construction, especially since state law exempts new buildings. Almost all California cities don’t have rent control and still have housing shortages.

The real import of the rent control debate is as a reminder of California’s civic disease: Our tendency to embrace complicated formulas (rent control laws often have multi-step formulas to figure out how much a rent should be) as ways to dodge the hard work of democratically solving tough problems.

It’s instructive that rent control’s history is deeply intertwined with the ultimate dodgy California formula, Proposition 13, the constitutional amendment approved by voters in 1978. One of its false promises was that saving property owners money on their taxes would reduce rents. So when rents soared after the amendment passed, liberal cities began to install rent control ordinances that, like Prop. 13, didn’t lead to lower rents.

And just as Prop. 13 keeps taxes lower the longer you stay in your home, rent control grants special privileges to the older and more stable among us, regardless of actual financial need. That is the maddening tragedy of 21st-century California: A place that once defined the new is now organized to favor the old and the established.

California has more than its share of poor people who need more stable lives. The best approach would be not formulas but robust support – including transportation, health care, child care and cash – for poor people wherever they can find opportunity. And, of course, more housing.

In a state devoted to anti-tax formulas that don’t keep taxes low and education guarantees that don’t guarantee enough money for schools, it’s no surprise that rent control laws are getting attention. But let’s not pretend that rent control is anything other than another way of pretending to address our housing problems.

Joe Mathews writes the Connecting California column for Zócalo Public Square. He can be contacted at joe@zocalopublicsquare.org.

Zócalo Public Square, a proud affiliate of Arizona State University, is a not-for-profit Ideas Exchange that blends live events and humanities journalism. We partner with educational, cultural, and philanthropic institutions, as well as public agencies, to present free public events and conferences in cities across the U.S. and beyond, and to publish original daily journalism that we syndicate to 264 media outlets worldwide. At a time when our country’s public sphere is narrow and polarized, Zócalo seeks to be a welcoming intellectual space where individuals and communities can tackle fundamental questions in an accessible, nonpartisan, and broad-minded spirit. We are committed to translating ideas to broad audiences and to engaging a new, young, and diverse generation in the public square.

Read more here: http://www.sacbee.com/opinion/op-ed/article69060742.html#storylink=cpy