§ 5.54.030 JUST CAUSE FOR EVICTION - PROTECTIONS.
   (A)   Applicability. Except as provided herein, the provisions of this chapter shall apply to all properties in Fairfax that are hired, rented, or leased to a household within the meaning of Cal. Civil Code § 1940, including properties that contain any of the following: (1) dwelling units which contain a separate bathroom, kitchen, and living area in a multifamily or multipurpose dwelling; (2) dwelling units in single room occupancy residential structures; or (3) units in a structure that is being used for residential uses whether or not the residential use is a conforming use permitted under the Fairfax Town Code. This definition applies to any dwelling space that is actually used for residential purposes, including live-work spaces, whether or not the residential use is legally permitted.
   (B)   Exemptions. The following rental units shall be exempt from this section, except that all exempt units must comply with the requirement of § 5.54.030(D).
      (1)   Rental units in hotels, motels, and inns, which are rented primarily to transient guests for a period of fewer than 30 days. This exemption does not apply (a) to a tenant who has resided at the property for more than 30 continuous days; (b) to a tenant who has entered into an agreement to lease a rental unit for 30 days or more; (c) where a landlord has violated Cal. Civil Code § 1940.1 with regard to the tenant; or (d) a rental unit used exclusively as a short-term rental as defined in Fairfax Town Code § 17.008.020.
      (2)   Rental units in any hospital, convent, monastery, extended medical care facility, non-profit home for the aged, or dormitory as defined in Cal. Building Code § 202 that is solely owned and operated by an accredited institution of higher education.
      (3)   Rental units which a government unit, agency or authority fully owns, operates and manages. This exemption applies only if applicable federal or state law or administrative regulation specifically exempt such units from municipal rent stabilization.
      (4)   Any dwelling unit located in a development where the dwelling units are subject to legally binding restrictions enforceable against and/or governing such units that limit the rent to no more than an affordable rent, as such term is defined in Cal. Health & Safety Code § 50053,and as subsequently amended.
   (C)   No landlord shall take action to terminate any tenancy, including but not limited to making a demand for possession of a rental unit, threatening to terminate a tenancy verbally or in writing, serving any notice to quit or other eviction notice, bringing any action to recover possession or be granted recovery of possession of a rental unit, including by seeking the entry of an eviction judgment or by causing or permitting a writ of possession to be entered unless the landlord is able to prove the existence of one of the following grounds as stated in the termination notice on which the court action is based:
      (1)   Failure to pay rent. The tenant has failed to pay the rent to which the landlord is legally entitled under the rental agreement, this chapter, federal, state, and any other local law.
         (a)   In any action to recover possession of a rental unit filed under this division, it shall be a defense if the landlord impeded the tenant's effort to pay rent by refusing to accept rent paid on behalf of the tenant from a third party, or refusing to provide a W-9 form or other necessary documentation for the tenant to receive rental assistance from a government agency, non-profit organization, or other third party. Acceptance of rental payments made on behalf of the tenant by a third party shall not create a tenancy between the landlord and the third party as long as either the landlord or the tenant provide written notice that no new tenancy is intended.
         (b)   COVID-19 state law preemption. This chapter shall not apply to unlawful detainer action for nonpayment of rent originally due from March 1, 2021 through March 31, 2022, where prohibited by Cal. Code of Civil Procedure § 1179.05 or successor statute.
      (2)   Breach of lease. The tenant has continued, after written notice to cease, to substantially violate any of the written material terms of the rental agreement, except the requirement to surrender possession on proper notice as required by law. To constitute a breach of lease, the substantially violated term must be reasonable and legal and have been accepted in writing by the tenant as part of the rental agreement; and provided further that, where such term was accepted by the tenant or made part of the rental agreement subsequent to the initial creation of the tenancy, the landlord must have first notified the tenant in writing that they need not accept such terms or agree to the terms being made part of the rental agreement.
         (a)   Notwithstanding any lease provision to the contrary, a landlord shall not take any action to terminate a tenancy based on a tenant's sublease of the rental unit if the landlord has unreasonably withheld the right to sublease following written request by the tenant. The following requirements must be met:
            1.   The tenant continues to reside in the rental unit as their primary residence.
            2.   The sublease replaces one or more departed tenants under the rental agreement on a one-for-one basis or the sublease adds additional occupants up to the maximum amount of occupants legally allowed under § 503(b) of the Uniform Housing Code as incorporated by Cal. Health & Safety Code § 17922, except where prohibited by law.
            3.   A landlord's refusal of a subtenant must state the reason for the refusal. If the landlord fails to respond to the tenant's request to sublease in writing within 14 days of receipt of the tenant's request, the tenant's request shall be deemed approved by the landlord.
            4.   A landlord's reasonable refusal of the tenant's written request may not be based on the proposed additional occupant's lack of creditworthiness, if the occupant will not be legally obligated to pay some or all of the rent directly to the landlord. A landlord's reasonable refusal of the tenant's written request may be based on the ground that the total number of occupants in a rental unit exceeds the maximum number of occupants under § 503(b) of the Uniform Housing Code as incorporated by Cal. Health & Safety Code § 17922.
         (b)   Before endeavoring to recover possession based on the violation of a lawful obligation or covenant of tenancy regarding subletting or limits on the number of occupants in the rental unit, the landlord shall serve the tenant a written notice of the violation that provides the tenant with a minimum of 14 days' opportunity to cure the violation. The tenant may cure the violation by making a written request to add occupants referenced in § 5.54.030(C)(2)(a)2. or by using other reasonable means to cure the violation.
         (c)   Protections for families. Notwithstanding any contrary provision in this section, a landlord shall not endeavor to recover possession of a rental unit as a result of the addition to the rental unit of a tenant's child, parent, grandchild, grandparent, brother or sister, or the spouse or domestic partner (as defined in Cal. Family Code § 297) of such relatives, or as a result of the addition of the spouse or domestic partner of a tenant, so long as the number of occupants does not exceed the maximum number of occupants as determined under § 503(b) of the Uniform Housing Code as incorporated by Cal. Health & Safety Code § 17922.
      (3)   Nuisance. The tenant has continued, after the landlord has served the tenant with a written notice to cease, to commit or expressly permit a nuisance in, or cause substantial damage to, the rental unit and, after written notice, has refused to cease damaging the premises, or has refused to either make satisfactory correction or to pay the reasonable costs of repairing such damage over a reasonable period of time. The fact that a tenant has been arrested or convicted of a crime, been the victim of a crime, or contacted the police, in and of itself, is not evidence of nuisance for purposes of this division.
      (4)   Failure to give access. The tenant has continued to refuse, after the landlord has served the tenant with a written notice, to grant the landlord reasonable access to the rental unit for the purposes of showing the unit to a prospective purchaser or mortgagee or making necessary repairs or improvements required by the laws of the United States, the State of California or any subdivision thereof. To terminate a tenancy under this division, a landlord must show that written notice was provided to the tenant in compliance with Cal. Civil Code § 1954.
      (5)   Temporarily vacate in order to undertake substantial repairs. The landlord, after having obtained all necessary permits from the town, seeks in good faith to undertake substantial repairs which are necessary to bring the property into compliance with applicable codes and laws affecting the health and safety of tenants of the building or where necessary under an outstanding notice of code violations affecting the health and safety of tenants of the building, and where such repairs while the tenant resides on the premises require the tenant to temporarily vacate for at least 30 days.
         (a)   Where such repairs can be completed in a period of 60 or fewer days, and the tenant agrees in writing to vacate the premises during the period required to complete the repairs, the landlord may not recover possession pursuant to this division unless the tenant shall fail or refuse to vacate the premises in accordance with such agreement.
         (b)   Where the landlord owns any other residential rental units in the town of the same number of bedrooms or fewer, and any such unit is vacant and available at the time of service of the written notice terminating the tenancy, or at any time thereafter until the earlier of the tenant's vacating the premises or the entry of a judgment by a court of competent jurisdiction awarding possession of the premises to the landlord, the landlord shall, as a condition of obtaining possession pursuant to this division, notify the tenant in writing of the existence and address of each such vacant rental unit and offer the tenant the right, at the tenant's option, to enter into a rental agreement (to be designated as a "temporary rental agreement") for the available rental unit which the tenant may choose, at a rent not to exceed the lesser of the lawful rent which may be charged for such available rental unit or the lawful rent in effect at the time of the notice of termination of tenancy on the unit being vacated. Said rental agreement shall be for a term of the lesser of ninety days or until completion of repairs for the rental unit being vacated by tenant.
         (c)   A notice terminating tenancy under this division must include the following information:
            1.   A statement informing tenants as to their right to relocation payments under this chapter.
            2.   The statement, "When the needed repairs are completed on your unit, the landlord must offer you the opportunity to return to your unit with a rental agreement containing the same terms as your original one and with the same rent."
            3.   A description of the repairs to be completed and the approximate expected duration of the repairs.
         (d)   Where the landlord recovers possession under this division either prior to or after an unlawful detainer judgment, the tenant must be given the right of first refusal to re-occupy the unit. The landlord shall notify the tenant household at least 60 days in advance of the availability of the unit or room. Within 30 days of receipt of the notice of availability, a tenant household must notify the landlord if it wishes to reoccupy the unit or room. The landlord must hold the unit or room vacant at no cost to the tenant for 60 days from the date the tenant household's written notice of its intent to reoccupy the rental unit or room is received.
      (6)   Owner move-in. The landlord seeks to recover possession in good faith for use and occupancy as a primary residence by the landlord or the landlord's spouse, child, parent or grandparent.
         (a)   A landlord, as used in this division, shall only include a landlord that is a natural person who has at least a 51% recorded ownership interest in the property.
         (b)   No eviction may take place for an "owner move-in" if the same landlord or enumerated relative already occupies a rental unit on the property, or if a vacancy already exists on the property. Only one specific unit per building may undergo an "owner move-in" eviction. Once a landlord has successfully recovered possession of a rental unit pursuant to this division, no other landlords may recover possession of any other rental unit at the property under the division. Any future evictions taking place at the same property under this division must be of that same rental unit. At all times, a landlord may request a reasonable accommodation if the landlord or enumerated relative is disabled and a different unit is necessary to accommodate the person's disability. A landlord who has terminated a tenancy for a rental unit under this division may not terminate a tenancy for a tenant who subsequently reoccupies a rental unit after termination of tenancy under this division or relocates to a comparable rental unit on the same property for a period of four years commencing from the date of the latest notice to vacate.
         (c)   The notice terminating tenancy shall contain the name and relationship to the landlord of the person intended to occupy the rental unit.
         (d)   The landlord or enumerated relative must intend in good faith to move into the rental unit within 90 days after the tenant vacates and to occupy the rental unit as a primary residence for at least one year .
         (e)   If the landlord or relative specified on the notice terminating tenancy fails to occupy the rental unit within 90 days after the tenant vacates, the landlord shall:
            1.   Offer the unit to the tenant who vacated it at the same rent in effect at the time the tenant vacated; and
            2.   Pay to said tenant all reasonable expenses incurred in moving to and from the unit, include lease termination fees. This division does not limit any other remedies a tenant may have under this chapter or applicable law.
            3.   If the landlord or enumerated relative fails to occupy the rental unit within 90 days after the tenant vacates or does not occupy the rental unit as a primary residence for at least one year, the landlord shall have the burden of producing evidence that the failure to occupy did not occur in bad faith.
         (f)   If the landlord or relative specified on the notice terminating tenancy fails to occupy the rental unit within 90 days and the previous tenant declines to move back into the rental unit, any new tenant moving into the rental unit will have as the original base rent the rent in effect at the time the previous tenant vacated.
         (g)   Eviction protection for elderly, disabled, or terminally ill tenants. A landlord may not evict a tenant pursuant to this division if (a) the tenant has resided in the rental unit for at least three years and is either at least 62 years of age or disabled; or (b) if the tenant is certified as being terminally ill by the tenant's treating physician. For the purposes of this division, notwithstanding the above, a landlord may evict a tenant who qualifies for the exemption if the landlord or enumerated relative who will occupy the rental unit is also disabled and no other units are available at the property.
         (h)   Within 30 days after the effective date of a written notice of termination under this division is filed with the Town Manager, the Town Manager shall record a notice of constraints with the County Recorder identifying each rental unit on the property that is the subject of § 5.54.030(C)(6) notice to vacate, stating the nature and dates of applicable restrictions under §§ 5.54.030(C)(6)(e), 5.54.030(C)(6)(f), and 5.54.030(E), and any other restrictions per applicable regulations. The Town Manager shall also send a notice to the rental unit that states the maximum rent for that unit, and shall send an updated notice to the unit 12 months, 24 months, 36 months, 48 months, and 60 months thereafter, or within 30 days of such date. If a notice of constraints is recorded but the tenant does not vacate the rental unit, the landlord may apply to the Town Manager for a rescission of the recorded notice of constraints. No further notices to the rental unit pursuant to this division are required if the constraints on the unit are rescinded.
         (i)   A landlord may not evict a tenant under this division if there is a comparable rental unit occupied by a tenant who moved onto the property more recently than the tenant from whom the landlord seeks to recover possession.
      (7)   Withdrawal from rental market. The landlord seeks in good faith to recover possession of all rental units on a parcel of land to permanently withdraw the units from the rental market or for demolition so long as the withdrawal is permitted by the Ellis Act (Cal. Gov't Code §§ 7060 et seq.). The landlord must have fulfilled all requirements of § 5.54.060 of this Code and all town regulations initiating the procedure for withdrawing rental units from rent or lease, with the intention of completing the withdrawal process and going out of the rental business or demolishing. Tenants shall be entitled to a minimum of 120-day notice or one year in the case a tenant is at least 62 years of age or disabled. Notice times may be increased by regulations if state law allows for additional time.
      (8)   Buy-out agreements. Nothing in this chapter shall expand or limit a landlord and tenant's ability to negotiate or agree to end a tenancy voluntarily in exchange for money or other consideration. All buy-out agreements under this section must be in writing, provided in English and translated into any other language at the tenant's request, and include:
         (a)   A statement that the tenant has the right not to enter into a proposed buy-out agreement;
         (b)   A statement that the tenant may consult with an attorney of their choosing before entering into a buy-out agreement;
         (c)   A space for each tenant to sign and write the date upon which the landlord provided the tenant with the agreement.
      (9)   Termination of temporary tenancy. The landlord seeks in good faith to recover possession of a separately alienable rental unit for their occupancy as a primary residence. This shall apply only where the landlord has previously occupied the rental unit as their primary residence and has the right to recover possession of the unit for their occupancy as a primary residence under an existing written rental agreement for a term of no more than 12 consecutive months that was executed with the current tenants. The temporary tenant must be provided, at the inception of the tenancy, with a written statement that includes the length of the tenancy and that the tenancy may be terminated at the end of the temporary tenancy period. No relocation is required under this division.
   (D)   In any action to recover possession of a rental unit pursuant to this § 5.54.030, a landlord must allege and prove that the landlord seeks to recover possession of the unit with good faith, honest intent and with no ulterior motive for the reason stated in the termination notice. If a landlord claims the rental unit is exempt from this ordinance, the landlord must allege and prove that the unit is covered by one of the exceptions enumerated in § 5.54.030(B). Such allegations must appear in the notice of termination of tenancy. Failure to make such allegations in the notice shall be a complete defense to any unlawful detainer action.
   (E)   Right of return and first right of refusal. All tenants that are displaced based on §§ 5.54.030 (C)(5) or (C)(6) or shall have the first right of refusal to return to the unit if it should ever be returned to the market by the landlord or successor landlord. The return tenancy shall include the same terms as the original tenancy and the rent shall be the rent lawfully paid by the tenant at the time the landlord gave notice of termination on a basis listed in §§ 5.54.030 (C)(5) or (C)(6) plus any lawful adjustment under § 5.55.080. All notices of termination of tenancy served under §§ 5.54.030(C)(5) or (C)(6) shall state the lawful rent in effect at the time of termination of tenancy. If the tenant declines to reoccupy the rental unit after it is returned to the rental market, the lawful base rent for the new tenancy shall be the rent lawfully paid by the tenant at the time the landlord served the termination notice, plus any lawful adjustment under this chapter or Chapter 5.55.
   (F)   School year protections for educators and students. It shall be a defense to an eviction under §§ 5.54.030(C)(5) or (C)(6) if a child under the age of 18 or any educator resides in the unit, the child or educator is a tenant in the unit or the child has a custodial or family relationship with a tenant in the unit, the tenant has resided in the unit for 12 months or more, and the expiration date of the notice of termination of tenancy falls during the school year.
   (G)   Written warning notice requirements. Any written warning notice as described in §§ 5.54.030(C)(2) through (C)(4) shall be served by the landlord on the tenant within a reasonable period prior to serving a notice to terminate tenancy and shall inform the tenant that a failure to cure may result in the initiation of eviction proceedings, of the right to request a reasonable accommodation for disability, and the contact number for the Town Manager. A reasonable period shall be presumed to be seven days. The notice shall also include sufficient details allowing a reasonable person to comply. The notice shall also include any information necessary to determine the date, time, place, witnesses present, and other circumstances concerning the reason for the notice.
   (H)   Retaliation is barred. Notwithstanding the above provisions, possession shall not be granted if it is determined that the eviction is knowingly in retaliation for the tenant reporting violations of this chapter, for exercising rights granted under this chapter or other law, or for forming or participating in a tenant organization.
   (I)   Additional notice requirements. In any notice purporting to terminate tenancy, the landlord shall state the cause for the termination, and in any action brought to recover possession of a rental unit, the landlord shall allege and prove compliance with this section. All notices described in §§ 5.54.030(C)(2) through (C)(4) shall be attached to any notices that purport to terminate a tenancy for which they correspond. The landlord shall file with the Town Manager a copy of any notice terminating tenancy within three days after serving the notice on the tenant.
   (J)   Failure to comply. Failure to comply with any requirement of this chapter or any implementing regulation may be asserted as an affirmative defense in an action brought by the landlord to recover possession of the unit. Additionally, any attempt to recover possession of a rental unit or recover of possession in violation of this chapter shall render the landlord liable to the tenant in a civil action for wrongful eviction for treble damages. The tenant may seek injunctive relief, equitable relief, and money damages. In any action for equitable relief, it shall be presumed that a tenant suffers irreparable harm through violation of this chapter. A tenant or landlord prevailing in an action brought under this chapter that is not an unlawful detainer action shall recover costs and reasonable attorney fees. The statute of limitations for all remedies in this section shall be three years. The remedies under this section are cumulative, and may be used in addition to any other remedies in this chapter or at law, statute, or ordinance.
(Ord. 870, passed 11-2-2022)