| 2009 NEW LAW UPDATE
By Chris J. Evans
The 2008 legislative session was one ofthe more interesting in recent memory. Following a prolonged budget standoff, Governor Schwarzenegger ended up setting a record for vetoing the highest percentage of bills ever in the state of California. Of the 1,177 bills passed by the Legislature, Schwarzenegger vetoed 414 bills, or 35%. Many bills that would have made life miserable for property owners and managers died in the Governor’s office.
However, even with the record number of vetoes, 763 new laws still managed to pass. In order to effectively manage their properties and investments, landlords must become familiar with these new laws.
This article will discuss the new laws affecting landlords in the state of California. The first part of the article deals with new California laws and regulations; the second part deals with the new federal requirements.
California Laws
Open Flame Cooking Devices:CA Fire Code
Effective immediately, Section 308.3.1 of the California Fire Code provides three new criteria regarding barbecues: 1) Only LP-gas(propane) is an acceptable fuel for these cooking devices, 2) The amount of propaneis limited to a single cylinder having amaximum of one pound of propane, and 3) The cooking device must be located at least 10 feet from the building. All three of these criteria must be met in order to be incompliance with the Fire Code. Otherwise, a sprinkler system must be in place to protect the patio or balcony. Since the Fire Code only addresses open flame devises, electricgrills that do not produce an open flame are allowed. The Fire Code does not address the issue of possession or owning a barbecue; the FireCode simply speaks to the use of these cooking devices. A barbecue on a balcony that is not in use is not a violation of this section of the Fire Code so long as any propane over a single one pound cylinder has been removed. If your lease does not already prohibit the use of BBQs, it’s recommended you serve a thirty day notice of change of terms of tenancy so that, at a minimum, your lease prohibits any activity in violation of the ban on open flame devices. If you wish, you may impose more stringent requirements than the fire code, such as a complete ban on the use and possession of all BBQs.
Abandoned Pets: AB2949
Under current law, landlords have to treat pets left behind by tenants as “abandoned personal property” — meaning they have to keep it for 15 days following a lockout or 18 days following posting and mailing of a notice of abandonment. Animal control will only retrieve the abandoned pet after this time period has elapsed. Effective January 1, 2009, the law now requires any person or private entity with whom a live animal is involuntarily d-posited to immediately notify animal control officials for the purpose of retrieving the animal. An “involuntary deposit” is made by leaving a live animal in or about any premises that has been vacated upon, or immediately preceding, the termination of a lease or other rental agreement. The bottomline: if a tenant abandons an animal at the property, you now can immediately call animal control.
Abandoned Property, Commercial Tenancy: AB 2025
Under current law, if the value of personal property abandoned by a commercial tenant is worth less than $300, the landlord can dispose of it anyway he or she sees fit. If the property is over $300 then the property can only be disposed of via public auction. Under the new law, effective January 1, 2009, for commercial tenancies only, if the landlord reasonably believes that the total resale value of the personal property is the lesser of $750 or $1 per square foot of the premises occupied by the tenant, the landlord may retain the property for his or her own use or dispose of it in any manner. The $300 limit remains in place for residential tenancies.
Domestic Violence: AB 2052
Effective immediately, victims of domestic violence, sexual assault, or stalking are able to break their lease without penalty under certain circumstances. In order to do so, the victim must give the landlord a 30 day notice of intent to vacate and attach either: (1) A copy of a temporary restraining order or; (2) A copy of a written report by a peace officer stating the tenant has filed a report alleging that he or she is a victim of domestic violence. The tenant’s notice of intent to vacate must be given within 60 days of the date of the restraining order or police report. If the tenant meets these requirements, then the landlord can not charge a lease break fee or require concession pay backs. However, the tenant is still responsible for the 30 days of rent after giving notice, even if tenant vacates immediately. In addition, the law makes it easier to remove perpetrators of domestic violence by creating a rebuttable presumption that a person who engages in domestic violence has created a nuisance on the premises. The rebuttable presumption only applies if the perpetrator remains in possession after the victim moves out of the unit.
Other Changes to the Unlawful Detailer Statute
In addition to the rebuttable presumption in the Domestic Violence Statute, there are three other changes to the Unlawful Detainer (Eviction) Statute. The first, AB 1013, defines nuisance to include a person who commits an offense involving unlawful possession or use of illegal weapons or ammunition or uses the premises to further that purpose. A landlord can now serve a three day notice to quit when a tenant illegally keeps firearms or ammunition at the property.
The second, SB 1407, increases statewide filing fees for civil actions, including evictions. This bill is intended to bring in $5 billion in new revenue, which in turn will be reinvested in improving court facilities. For landlords, it will mean a $25 increase in eviction filing fees, where the amount demanded is under $10,000; the fee increase to $35 for complaints over $10,000. There is also a new $20 filing fee for creditor’s claims. The final bill, AB 1126, deals with discovery motion in eviction actions. Existing law requires 16 day notice for discovery motions in unlawful detainers. This bill allows a discovery motion to be set with only 5 days’ notice.
ADA Reform: SB 1608
This bill received unanimous support by both houses of the Legislature. It significantly reforms ADA litigation in the state of California, mainly by making it more difficult for plaintiffs to recover damages based upon ADA violations. Effective January 1, 2009, statutory damages will now be based on each occasion that a disabled person is injured as a result of being denied fullaccess to a property, and not upon the number ofviolations of construction-related accessibility standards. Under the new standard, a Plaintiff can recover only if he/she: (a) experienced difficulty, discomfort, or embarrassment because of an ADA related violation or (b) was deterred from accessing a place of public accommodation. A person is only deterred if he/she had actual knowledge of a violation and the violation would have denied the plaintiff full access if the plaintiff had attempted to access the property. There are a number of other beneficial provisions of this legislation, including provisions designed to limit the amount of fees awarded to plaintiff’s attorneys. In addition, if your property has been inspected by a Certified Access Specialist you may have the right to a 90 day court stay and early evaluation conference to evaluate the merits of the construction-related accessibility claim against you.
Federal Laws
Identity Theft: Fair and Accurate Credit Transactions Act
Effective November 1, 2008, The Fair and Accurate Credit Transactions Act (FACT Act) requires landlords who use consumer credit reports in their application process to develop reasonable policies and procedures with regard to Notice of Address Discrepancies from consumer reporting agencies.
A Notice of Address Discrepancy is a notice from a consumer/credit reporting agency which identifies a substantial difference between the address in a prospective resident’s credit report and that which was provided on the application. Landlords must now have reasonable policies in place detailing how to respond to a Notice of Address Discrepancy so that the landlord can verify that the consumer/credit report relates to the actual applicant in question. In addition, if a landlord reports information to a consumer/credit reporting agency, for example, as part of the collections process, the landlord must also develop reasonable policies for ensuring that an accurate address is reported. Examples of reasonable policies include contacting the consumer and verifying the addresses discrepancy directly with the applicant; or cross checking the information against third party sources. These examples are not mandatory; other methods can also be used so long as they are reasonable. And, while the FACT Act does not require the new policies be in writing, it is a good idea. A written policy will help ensure consistent compliance and can serve as evidence in the case of an enforcement action.
Virginia Graeme Baker Pool and Spa Safety Act
This federal law requires all public pools and spas, including those in apartment communities, to be equipped with the ASME/ANSI A112.19.8-2007 anti-entrapment drain covers as of December 19, 2008. These drains are relatively inexpensive to purchase and install. However, pools with a single main drain have additional requirements, which go beyond the scope of this article.
Apartment owners are strongly advised to evaluate their pool drain systems to determine if adjustments are required by the December 19, 2008 deadline. While it is unclear what agency is responsible for enforcing the new federal requirements, violations can result in substantial civil and/or criminal penalties. Therefore, if a pool or spa is not compliant with the new standards by December 19, 2008, it should shut down until it is compliant.
Chris Evans is an attorney with Kimball, Tirey & St. John LLP, and they offer a variety of legal resources to assistowners and managers in adopting new business practices. Ifyou are interested in more information, please contact our office at 800-564-6611.
Approved Pool Drain CoversThe following companies, listed alphabetically, manufacture pool and spa drain covers of various sizesand have represented to CPSC staff that their covers meet the ASME/ANSI A112.19.8-2007 standard, asrequired by the Virginia Graeme Baker Pool and Spa Safety Act, Section 1404(c)(1)(A)(i).
A&A Manufacturing Division of Shasta Industries Inc.
3750 West Indian School Road
Phoenix, AZ 85019
Tel (800) 851-8492
Fax (602) 5324896
Michael Marshall
Michael.Marshall@aamfg.com
www.UnblockableDrain.com
AquaStar Pool Products Inc.
1666 Garnet Ave #224
San Diego, CA 92109
Wade Arens
Tel (877) 768-2717 ext 2
Fax (877) 276-POOL
wade@aquastarpoolproducts.com www.aquastarpoolproducts.com
Commercial Pool & Spa Supplies Inc.
1167 East Hwy 36
Maplewood, MN 55109
Bill Soukup
Tel (877) 842-4455
Fax (651) 765-9924
billsoukup@commercialpool.com
www.commercialpoolseminars.com
Current Systems Inc.
23679 Calabasas Rd.
Calabasas CA 91302
Tel (866) 372-8886
technical@current-sysytems.com
Drain Safe/New Water Solutions
Ron Schroader
Lake Worth, FL
Tel (561) 433-2580
Ron@drainsafe.com
www.drainsafe.com
Eureka Manufacturing Co.
PO Box 1473
Bismarck, ND 58502
Cathryn Binstock
Tel (701) 223-7932
Fax (701) 258-5423
cathryn@eurekamanufacturing.com
www.eurekamanufacturing.com
Hayward Pool Products
61 White Cap Drive
North Kingstown, RI 02852
Joe DiOrio, Product Manager
Tel (401) 583-1107
Fax (401) 583-1407
jdiorio@haywardnet.com
www.haywardnet.com/safety1
Paddock Industries Inc.
555 Paddock Parkway
Rock Hill, SC 29730
Mike Schuett, Exec. Vice President
Tel (800) 849-2729
www.paddockindustries.com
Paramount Pool and Spa Systems
295 E. Corporate Place, Ste. 100
Chandler, AZ 85225
Dominic Conn, Dir. of Engineering
Tel (480) 893-7607
DCONN@1paramount.com
www.1paramount.com
San Antonio Gary Equipment Co. Inc.
438 Sandau Road
San Antonio, TX 78216-3621
Tassie Zars
Tel 210.341.5255
Fax 210.341.5154
www.GaryEquipment.com
retro@garypools.com
Waterway Plastics
2200 E. Sturgis Rd.
Oxnard, CA. 93030
Ray Mirzaei, Certified Engineer
Tel (805) 981-0262
waterway@waterwayplastics.com
www.waterwayplastics.com
World Wide Sports
LLC112 South Hanley Road
Suite 101St. Louis, MO 63015-3418
Harry Newhart
Tel (314) 863-0040
www.worldwidesportsllc.com
Approved Safety Vacuum Release Systems continued from page 32The following companies, listed alphabetically, manufacture safety vacuum release systems and haverepresented to CPSC staff that their systems meet the ASME/ANSI A112.19.17 or ASTM F2387 standards,as required by the Virginia Graeme Baker Pool and Spa Safety Act, Section 1404(c)(1)(A)(I).
A.O. Smith
EPC531 North Fourth Street
Tipp City, OH 45371
www.aosepc.com/Products/eMod/
[Note: eMod model also qualifies as anautomatic pump shut off system.]
West
Bill DeCorrevont
Tel (602) 300.4664
Hayward Pool Products
61 White Cap Drive
North Kingstown, RI 02852
Joe DiOrio, Product Manager
Tel (401) 583-1107
Fax (401)583-1407
jdiorio@haywardnet.com
www.haywardnet.com/safety1
Pentair Water Pool and Spa
1620 Hawkins Avenue
Sanford, NC 27330
Customer Service: (800) 831-7133
Customer Service Fax: (919) 566-8926
Technical Service: (800) 831-7133
Steve Barnes
Steve.Barnes@PentairWater.com
www.PentairPool.com
Stingl Products LLC
Sterling, VA
Tony Sirianni
Tel (888) 749.5433
Tel (571) 434-6010
Fax (571) 434.6013 tonysirianni@stinglproducts.com.
www.stinglproducts.com
Vac-Alert™ Industries LLC
Santa Rosa, CA 95401
Paul Pennington
Tel (800) 374-7405
Fax (707) 576-8286
paul@vac-alert.com
www.vac-alert.com
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