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1999-143-Adopting Revised Rental Dispute Resolution Regulations And Rescinding Resolutions 1998-48;'" RESOLUTION 1999 -143 RESOLU'T'ION OF THE TOV6II~I OF LOS GATOS ADOPTING REVISED RENTAL DISPUTE RESOLUTION REGULATIONS AND RESCINDING RESOLUTION 199:8-48, RESOLUTION OF THE TOWN COUNCIL OF THE TOV~IN OF' LOS GATOS ADOPTING REVISED RENTAL, DISPUTE RESOLUTION REGULATIONS AND RESCINDING RESOLUTION 1989-210 WHEREAS, Resolution 1998.48 Adopted Revised Rental Dispute Resolution .Regulations to assist in implementing Town Code Chapter 14.80 .Rental and Other Tenant/Landlord Disputes; and, ~VIFIEREAS, recommended changes have been made to the Rental Dispute Resolution Regulations (attached as Exhibit A) aimed at clarifying the Program and .streamlining .and simplifying the resolution process. ~"~-IEREFOItE, ~E IT RES®I.VEl)e that the Los Gatos Town Council does hereby .Adopt the revised 'Rental Dispute Resolution Regulations and rescind resolution 1998-48 to be effective upon the date of the Ordinance amending the Los Gatos Town Code Chapter 14.80, Rental and Other Tenant/Landlord Disputes (Sections 14.80.045 - 14:80.240) introduced on September 7, 1999. PASSED AND ADOPTED at a regular meeting of the Town Council of the Town of Los Gatos, California held on the 7`" day of September, 1999, by the following vote: COUNCIL, I~ENIBERS: AYES: Steven Blanton, Linda Lubeck, Joe Pirzynski, ~/Iayor Jan Hutchins. NAYS: None ..ASSENT: Randy Attaway ABSTAIN: None SIGNED.: GATOS ATTES'P: CLERK OF 'THE TO~~TJN OF ~ ~ GATOS LOS GATOS, C_~LilO•R1~1IA Csd08a:\resos\cs090799.roo 1pW N OF $ynUit !pS Gp.~pS Town of Los Gatos Rental Dispute Resolution Regulations Adopted by Resolution #1999-143 effective October 20,1999 n:csd:\RENTI~GS.WPD TABLE OF CONTENTS INTRODUCTION I. II. III IV. .RENT INCREASE LIMITS 4 A, Frequency of Rent Increases 4 B. Amount of Annual Increase 4 1. Increased Costs of Debt Service 4 2. Increased Costs of Operations and Maintenance 5 3. Service.Reductions 6 4, Economic, .Financial and other Factors 7 5. Guidelines Pertaining to All..Rent Increases other than .Base Rent Increases 8 C. Notice of Rent Increase and Petitions 8 1. Rent Increase Notices 8 2. Filing a Petition 9 3. Electing a Representative 9 4. Consolidation of Petitions 10 THE CONCILIATION PHASE 10 FIL ING DEADLINES AND HEARING REQUESTS 10 A. Mediation 10 B. Arbitration 10 HEARING PROCESS AND DECISION MAKING 10 A. Confidentiality 10 B. Hearing Procedures 10 C. Burden of Proof 11 D. Conduct of Mediations and Arbitrations 11 E. Decisions and Agreements 12 F. Failure to Appear and Rescheduling. 12 n:csd:\RENTREGS. WPD 2 V. THE MEDIATION PHASE 13 A. Introduction 13 B. Presentation by the Parties 13 C. Private Sessions 13 D. Voluntary Agreement 13 E. Closing Session 13 F. Additional Documentation 13 G. Hearing Summary 13 H. Timing and Impasse Reports 13 VI. THE ARBITRATION PHASE 14 A. Purpose of an Arbitration Hearing 14 B. Conduct of Arbitration Hearing on Referral from .Mediation or Conciliation 14 C. Conduct of Arbitration Hearings on Claims of Violation of a Voluntary Agreement 14 D. Timing and Contents of Award 15 VII. HEARI NG OFFICERS 15 A. Selection Criteria 15 B. The Program Administrator 16 C. Assignment to Cases 16 D. Disqualification .from Cases 16 E. Review of Hearing Officer's .Performance 17 VIII. MISDEMEANORS AND ENFORCEMENT ~ 17 A. The Ordinance Provides that it is a Misdemeanor 17 B. Investigation 17 C. Additional Civil Rights 17 IX. APPEAL OF ADMINISTRATIVE ACTION 17 X. DEFINITIONS 1'7 n:csd:\RENTREGS.WPD 3 LOS GATOS RENTAL DISPUTE RESOLUTION REGULATIONS INTRODUCTION Rental units in complexes of three or more units on the same parcel of land shall be covered by Chapter 14.80 of the Los Gatos Town Code :after July 1.980. If one or more of the units is owner-occupied, the remaining units shall be subject to Chapter 14.80. When rental units are annexed into the Town of Los Gatos, .rent increases prior to the annexation are not subject to review,. but do establish atwelve-month or two year period for future increases. For example, if rent is increased in July and the property is annexed in August, the rent may not be :increased until the following July. I. RENT INCREASE LIMIITS A. FREQUENCY OF RENT INCREASES 1. Rent may not ordinarily be increased more frequently than annually except: a. To pass through the annual regulatory fee at no more than 1/12th per month; b. With the written consent of all affected tenants; c. At the time of a voluntary vacancy of an apartment unit; or, d. At the time of acourt-ordered eviction for violation of a rental agreement, 2. Consequences: Hearing Officers shall consider evidence establishing that there has been more than one increase within a twelve { 12) month period. When it is found that there has been .more than .one increase, the second :and subsequent increases must be disallowed in their entirety, regardless of the amount or percentage. Rent is presumed to have been increased when a tenant moves in unless the landlord can document that it was not increased. Other increases within twelve (12) months after the tenant moved in may be disallowed. E. AMOUNT OF ANNUAL INCREASE 'The annual rent increases shall not exceed the 70 percent of the Consumer Price Index (CPI) ceiling or five .percent, whichever is greater, unless the tenants agree or the Arbitrator determines that other factors render a larger increase to be reasonable. The 'Town or its agent shall compute the average annual percent of change as set forth in Section 14.80.310 (c) of the Rental Mediation Ordinance. Increases in excess of 70 percent CPI ceiling or five percent, whichever is greater, are subject to review if the affected tenant/s file a petition with the Town's Agent. (EXEMPTION: If the last rent increase was initiated no less than two (2) years before the current increase and the current increase is 10% or less.) An increase may be subject to review because the dollar amount has been raised, or services reduced, or both. The following cost categories may be considered in the review ..process. 1. INCREASED COSTS OF DEBT SERVICE for new or existing owners shall be deemed reasonable and allowed by the Arbitrator when: a. If the loan to value ratio does not exceed 70 percent of the appraised value of the property, 80 percent of the increase in debt services is allowable and may be passed through to tenants. b. If the loan to value ratio exceeds 70 percent, the annual amount of the increased n:csd:\RENTREGS.WPD 4 costs of debt service which shal'1 be found allowable and may be passed through to tenants is 80 percent of the sum calculated by multiplying the new debt service by 70 percent divided by the loan to value .ratio less the prior debt service. A computation example follows: INCREASED DEBT SERVICE EXAMPLE Facts New Debt Service per Annum 110,000 Prior Debt Service per Annum 80,000 Increased Costs of Debt Service .30,000 Aggregate Debt from which Debt Service arises 750,000 Appraised Value of the Property 1,000,000 Loan to Value Ratio (LTVR) .75 Calculation Pass Through = .8 [((New Debt Service x {, 7=LTVR]) -Prior Debt Service)] Pass Through = .8 [(110, :000 x [. 7=.75]) - 80, 000)] Pass Through = .8 [(110, U00 x .9333) - 80, 000)]. Pass Through = .8 (102,663 - 80,000) Pass Through = .8 (22,663) Pass Through = 18,130.34 (Per Annum) Individual Pass Through = (1:8,130.40 _ 12) _ # of units. or square feet 2. INCREASED COSTS OF OPERATIONS AND MAINTENANCE. -This cost method compares costs for the most recent twelve months and the prior twelve months. The landlord has the option to .present ,increased costs of operations and maintenance (O~cM), capital improvements, and rehabilitation costs; plus 70% of CPI or five percent whichever is greater of the monthly rent. a. Capital Improvements -The cost of capital improvements must be averaged on a per unit or square foot basis and amortized over a period of at least 60 months. b. Rehabilitation -The costs of rehabilitation must be averaged on a per unit or square foot basis and amortized over a period of at least 36 months, [New O&M Costs (last 12 months) -Old O&M Costs (prior 12 months)] _ 12 months Operating and Maintenance Increase (OBzM) Capital Improvements _ . 60 months =Capital Improvement Increase (CI) Rehabilitation = . 36 months =Rehabilitation Increase (RI) O & M + CI + RI =Monthly Increase Monthly Increase _ (# Units or proportion of Square Ft.) =Monthly Unit Increase (MUI) MUI + 5% or 70% CPI of units prior rent =Total Allowable Rent Increase n:csd:\RENTREGS. WPD 5 3. SERVICE REDUCTIONS - A service reduction occurs when the landlord has breached her/his obligation to furnish to the tenant the Basic Service Level and the tenant's usability of the premises is thereby measurably :reduced.' a. Basic Service Level -The landlord is required to furnish to the tenant a basic level of housing services, herein called the "Basic Service Level" and established by: i. California Civil Code Section 1941..1 and 1941.2 and other applicable codes and statutes; ii. The landlord's implied Warranty of Habitability; iii. Express or implied agreement between landlord and tenant; iv. The nature and quality of original construction of improvements, fixtures, and equipment; v. The age of the improvement, fixture, and equipment; vi. The condition of the improvements, fixture, and equipment at the beginning. of the term of tenancy; vii. The landlord's policies of operation and maintenance, repair and .replacement communicated to the tenant at the beginning of the applicable term of tenancy. b. Allegations of Service Reductions -Each allegation of a service reduction shall be made in a separate writing, signed by the tenant claiming it, and filed with the Town, its agent or the Hearing Officer during or prior to the first hearing. The burden of proof of each service reduction is on the person alleging the reduction. Each allegation of a service reduction shall state; i. The prior housing service level provided by the landlord; ii. The specific changes from the prior service. level comprising the alleged reduction in service; iii. The date the service reduction was first noticed by the tenant; iv. The date the tenant gave notice to the landlord requesting correction of the alleged service reduction, and whether the request was oral or in writing; v. When and how the .landlord responded to the tenants notice; vi. Whether the condition was improved or corrected and if so, when and how; vii. The status of the condition as of the date the allegation is signed by the tenant; and viii. The extent to which the landlord :and/or the tenant was responsible for the condition .generating the service reduction. c. Determining Value of Unreasonable Service Reductions -When it is found that a service reduction has occurred which is unreasonable under the circumstances, the monetary value to be assigned to the service reduction is to be determined. The n: csd:\RENTREGS. WPD 6 percentage reduction in usability of the rental unit and common areas caused by the service reduction, commencing with the accrual date shall consider the following factors: i. The amount oftime the occupant is exposed to the condition; ii The degree of discomfort the condition imposes; iii. The extent to which such a condition causes tenants to find the premises uninhabitable .and leave. The Hearing Officer shall apply the percentage reduction to the monthly rent, divide by 30, and multiply the resulting sum by the number of days commencing from the date to the date of restoration of the service level. d. Housing Code Violations -Violations of the Los Gatos Housing Code or of Section 1941.1 and 1941.2 of the State Civil Code shall be considered and may reasonably condition, disallow, or .reduce a rent increase based on severity. An .inspection report of the Los Gatos Building Official shall be deemed presumptive, but not conclusive, proof of the matters recited therein. e. bindings - In making any determination that an alleged service reduction exists or not, is reasonable or unreasonable under the circumstances, or has a particular monetary value, or that a Housing Code violation exists or not, or has a particular .monetary value, in any summary report or arbitration award, the Hearing Officer shall make and include a specific finding of the facts upon which the determination is .based. £ Consequences of a .Service Reduction Unreasonable Under the Circumstances i, If the value of the service .reduction is determined to effect the reasonableness of a pending rent increase, the value of he service .reduction shall be applied as a credit against the .rent increase unless it is a permanent reduction in service in which case it will result in a rent reduction. ii. When the proceeding does not involve determination of reasonableness of a pending rent .increase, the value of the service reduction shall be applied as a credit against the tenant's obligation to pay current rent unless it is a permanent reduction in service in which case it will result in a rent reduction. 4. ECONOMIC, bINANCIAL AND OTHER FACTORS - The Hearing Officer will consider additional relevant factors presented by either party. These factors may include the following: a. Market Value: The current market value of rental units similarly situated, which are not owned or controlled by the landlord. b. Rental History: The amount and frequency of past increases, and the occupancy rate in comparison to comparable properties in the same general area. n;csd:\RENTREGS.WPD 7 c Physical Condition: The .physical condition of the unit, including maintenance and repair during the last twelve (12) .months. d Services: Any increase or reduction in services since the last rent increase. e. ~Iacancy and Bad Debt Losses: The .degree to which vacancy and bad debt losses are not offset by retention of deposits, court judgments or increases to new tenants. f. Other Financial Information: Other financial information that the landlord is willing to provide. GUIDELINES PERTAINING TO ALL RENT INCREASES OTHER THAN BASE RENT INCREASES. a. Each of the costs must bear a reasonable relationship to the purpose for which they were incurred and the value of the real property. b. Costs are "out of .pocket" which have been incurred or obligated. c. If a rent increase is cost justified and neither service reduction nor Igousing Code violations are present, that rent increase may be deemed reasonable. d. The cost categories presented at Arbitration must be the same as at 1Vlediation. The Arbitrator has the discretion to require cost information from categories not initially presented by the landlord, if that information is necessary to resolve issues such as service reductions. e. Operations and maintenance costs are for the most recently available consecutive two twelve month periods ending no more than 60 days prior to the rent increase date. f. Undocumented projections or estimates of future costs may not be accepted for use in cost analyses. g. Debt service, capital improvements, and rehabilitation costs must be incurred in the past twelve months as evidenced by payment or contract establishing a legal obligation and evidence that the terms of the contract .are or have been met. The twelve-month period for each of these costs may be different from the period used for operation and maintenance, and .must begin earlier than the effective date of the increase, e.g., contract on 7/80, performed work 7/80-6/81, increase'8/80, work must have begun by the time the rent increase is due. h. If, however, increases in debt service or repayment of capital improvements or rehabilitation costs are, or have been deferred so as to become effective at a future date in excess of a twelve (12) month period, then those costs may be applied as they become effective. i. If costs. are equal to or greater than the petitioning tenants' rent increase, that increase is cost justified. C. NOTICE OF RENT INCREASE AND PETITIONS RENT INCREASE NOTICES - When a .landlord issues a notice of rent increase he/she n:csd:\RENTREGS. WPD 8 must provide the tenants notice of their full right to use the Rental Dispute Resolution Process. The notice must :include the address and telephone number of the Rental Dispute Resolution Program. This must be included conspicuously in the rent increase notice or done separately at the same time and manner as the rent increase notice. The recommended wording is: You have the right to use the Rental Dispute Resolution Process. To be eligible a petition must be received by the Town or its agent. within 30 days after the increase goes into effect. .For further :information contact; (Agency) (Address) {City,:State, Zip) (Phone and Fax) 2. FILING APETITION - To initiate the dispute resolution process, Tenants or Landlords must complete and file a written Petition for Conciliation with the Town's Agent. Petition forms may be obtained from the Town's Agent and must be filled in completely. a. Rent Increase Petitions -Twenty-five percent of the units affected by the rent increase must join in the petition. b. No petition maybe filed .later than 30 days after the rent increase takes effect. I-Iowever, a .petition .may be filed within six (6) months of a rent increase if the notice is not in compliance with these Regulations. c. I~eferrai of Amount of Increase Over 70 Percent CPI - `1Vhen a tenant files an eligible petition, the amount of the increase over 70 percent CPI or five percent, whichever is greater, is stayed, pending a resolution of the dispute. The tenant is obligated to pay only the old rent plus 70 percent of the Consumer Price Index or five .percent, whichever is greater, until the petition is resolved and the rent level established. 3. ELECTING ~1'REPRESENTATIVE a. If three (3) or more tenants seek review, the tenants shall :designate in writing to the Town, or its agent, an individual to serve as the tenant representative for the purposes of receipt of all notices, correspondence, decisions and findings of fact required in this article. b. The representative shall be selected by majority vote. c. The writing designating the representative shall be in the form of one document containing the signatures of all petitioning tenants. d. The tenants shall designate their representative within ten { 10) days of submitting the petition. Failure to designate a tenant representative within ten { 10) days will render the petition incomplete and the petition will not be accepted for filing. e. Service ofnotice upon the designated tenant representative will constitute adequate.and n: csd:\RENTREGS. WPD 9 sufficient notice to all petitioning tenants. 4. CONSOLIDATION OF PETITIONS -Whenever possible, petitions from rental units .owned, operated, and managed as a single housing complex shall be consolidated into one case bythe program staff. II. THE CONCILIATION PHASE The filing of a petition authorizes the Town`s Agent to contact any of the parties to the dispute to conciliate the issues. The purpose of conciliation is to resolvetenant/landlorddisputw through limited intervention. Conciliation does not involve a face to face meeting but is a limited negotiation through telephone or mail contacts by a Housing Counselor to explain to each party the position of the other and to attempt resolution of the dispute. Information and clarification of tenant landlord law and the Los Gatos Ordinance may be involved. The Town's Agent is designated as the Counselor. If conciliation does not resolve the dispute, either party may request mediation or arbitration.. III. FILING DEADLINES AND HEARING REQUESTS A. MEDIATION A request for mediation may be filed with the Town or its agent 21 days after the petition for conciliation was received by the Town or its agent and :the dispute has not been resolved. Mediation must be requested within $0 days of Town's/Agent's receipt of the petition for .conciliation. B. ARBITRATION A request for arbitration must be filed with the Town or its agent within 60 days of the filing of the petition for conciliation, or, within 30 days of (1) the conclusion ofthe mediation hearing; or, (2) the discovery that the mediation agreement has been broken. IV. HEARING PROCESS AND DECISION MAKING GUIDELINES A. CONFIDENTIALITY' The identity of the parties and the factual data of the case are confidential. Any one of the parties to a hearing has the right to request to see .and to copy information supplied by the other parties. This information may also be reviewed and used by the Town for program operations, administration, audit and evaluation. While the parties and the Town .have access to this information, it is not public information. B. HEARING PROCEDURES 1. Time. Within thirty{30) days from the datearequest for mediation or arbitration is received, the town or its agent shall schedule a hearing. 2. Notice. The Town's agent shall mail written notice to all parties:(unless there are three ormore tenants, in which case, to the tenants' representative) at leasttwenty {20) calendar days before the hearing. 3. Submittal of evidence. Materials to be considered at the hearing must be logged with the Town n:csd:\RENTREGS.WPD 10 of .its agent at least twelve { 12) days in advance of the hearing who shall .make them available to all parties to the hearing (unless there are three ormore tenants, in which case, to the tenants' representative) at least seven (7) days in advance of the hearing. 4. Extension. Extensions of time for the hearing process may be mutually .agreed upon by both parties {or, if three or more tenants, by one party and the tenants' representative) with the concurrence of the arbitrator. C. BURDEN OF PROOF 1. The .landlord shall have the burden of proof for establishing the reasonableness of a rent increase. 2. The tenants .shall have the burden of proof for the existence of service reductions and Housing Code violations. 3. The burden of proof shall be satisfied by demonstrating that the fact to be proven is more probable than some other .fact. 4. The burden of proof shall be met by using only evidence which has a tendency in reason to prove or disprove a disputed fact of consequence in determining the Basic Service Level. 5. Proof shall only be received for service .reductions alleged in a .claim filed with the Town, its agent, or the Hearing Officer during or prior to the first hearing. b. Proof of a service reduction shall be .received only for that period of time the premises have been owned by the landlord against whom the claim is filed. D. CONDUCT OF MEDIATIONS AND ARBITRATIONS 1. The Hearing Officer may change the order; delete or add items to the following list in order to conduct the Hearing in a timely and orderly manner. The Hearing. Officer may adopt rules to encourage a timely and business-like hearing. 2. All parties to the petition and his/her counsel may attend the hearing and offer evidence and testimony. a. Examples of those who may attend Hearings include: owners, property managers, agents, attorneys, tenants, witnesses, paralegals, and designated representatives. The Hearing Officer may limit the ,participation of attendees other than parties to the dispute. b. Examples of those who generally may not attend Hearings include tenants not covered by the .petition, owners of other properties, members of the public. These persons may attend if all parties agree. 3. Review and Response to Evidence and Testimony -Each party must have the opportunity to review all evidence and testimony introduced at the Hearing or provided to the Hearing Office, and to make a response. The Hearing Officer has the discretion to allow written .responses to be submitted. .Hearing Officers have the discretion and must consider allowing reasonable recesses to review any new information or documentation. 4. Record of Hearings -Hearing Officers will cause to have a written record of all parties, n:csd:\RENTREGS.WPD 11 attending either Mediation or Arbitration Hearings and a listing of evidence presented. Mediation sessions shall not be taped. The Arbitrator will tape .record .all sessions and turn the tape and all evidence into the Town's Agent with the Arbitration Award. Any record is available to both parties for review.. All tape recorders will be placed as designated by the Arbitrator. Tapes will be available for review for a period of twelve months at the appropriate Town office. Any and all duplication costs will be borne by the requesting party. 5. Participation of the Hearing Officer -The Hearing Officer shall, at all times in the conduct of the hearings and in otherwise performing his/her duties, .act neutrally and .impartially. The Hearing Officer shall .not solicit, invite, or encourage new complaints from the landlord or tenants. This does .not .preclude clarification of each party's rights under the ordinance. Hearing Officers are encouraged to suggest compromises to disputes raised at the hearing. 6. Relief-from Default - -The Hearing Officer may relieve any party from their failure to adequately state their claim prior to or during the first meeting upon a reasonable showing of fraud, error, or inadvertence. The Hearing Officer may grant to the opposing party additional time to respond to any claim, addition to, or revision of, a claim filed pursuant to the relief granted. E. DECISIONS AND AGREEMENTS 1. Eligible Petitions -The voluntary :agreement or arbitration award shall apply to a tenant/s who have filed an eligible petition or have been included in a :'landlord petition. 2. Effective Date -Unless otherwise set by the Hearing Officer, determinations, awards, and voluntary agreement shall be effective as of the effective date of the increase originally proposed by the landlord and shall extend for twelve (12) calendar months. F. FAILURE 'TO APPEAR AND RESCHEDULING l . No appearance by the Landlord or :his/her Representative -When the landlord or his/her representative does not appear at the Hearing, the rent increase will be determined to be unreasonable. 2. No Appearance by Tenants -When the tenants or their representative does notappear at the Hearing, the rent increase will be determined to be reasonable. 3. Voluntary Agreements - When a tenant fails to appear or be represented at a Mediation Hearing where a voluntary agreement is concluded with the remaining tenants, the petition of the tenant who failed to appear will be considered to have been withdrawn. 4. Arbitrator's Determination - When a tenant. fails to appear or be represented at a Hearing that results in a written determination, that petition of the tenant who failed to appear will be considered to have been withdrawn. 5. Rescheduling -Rescheduling of Hearings causes a delay in the resolution of the dispute and .inconveniences the parties. However, a rescheduling is sometimes appropriate. a. Request by Landlord or Tenant - A Hearing may be rescheduled by the Town or .its n:csd:\RENTREGS. WPD 12 Agent, one-time at the ,request of a landlord or a tenant for reasonable cause, when the request is made at least five (5) days before the scheduled Hearing date. b. Request by one of the Parties - A Hearing may be rescheduled by the Town or its Agent, when one of the parties was unable to attend due to reasons beyond her/his control and the request is made within 24 hours after the scheduled Hearing date. V. THE MEDIATION PHASE -The purpose of the Mediation Hearing is to give the .parties an .opportunity to resolve the dispute voluntarily. A. INTRODUCTION -TheMediator will introduce him/herself, identify all attendees, circulate asigu-in sheet, and briefly explain the hearing process. B. PRESENTATION BI''THE PARTIES -The parties will be given full opportunity to present evidence and testimony. Comments must'be clear, concise, and relevant. When one party has made its presentation the other party will be given an opportunity to make its .presentation. C. PRIVATE SESSIONS -Following the initial presentations, theMediator may athis/her discretionmeet privately (caucus) with .each side to attempt to work out a voluntary agreement. The agreement is .confidential .and shall only be shared with the specific consent of the .all participants. D. VOLUNTARY AGREEMENT - If the parties arrive at an agreement, the .Mediator will summarize the resolution on an agreement form .and witness all signatures. Voluntary agreements must specify the agreed upon rent and may include any other items the .parties .agreed upon. E. CLOSING SESSION -The Mediator will meet with both .parties to sign a voluntary agreement or to provide an opportunity to present additional evidence or testimony. F. ADDITIONAL DOCUMENTATION - If additional documentation is requested, the Mediator may recess the Hearing at his/her discretion, for no longer than ten days, for the purpose of receiving this documentation. G. HEARING SUMMARY - If a voluntary agreement is notpossible the Mediator will,prepare an impasse report. H. TIMING AND CONTENTS OF IMPASSE REPORTS - 1 . The Mediator shall submit an impasse report to the Town's agent within five days of the hearing. If the Mediator has requested additional documentation, the report is due five days after the continued hearing. 2. Contents - Thereport will include the following: a. Identification of all attendees. b. Statement of all evidence presented such as the costs, service reductions and/or Housing Code violations presented; and any relevant. economic, financial, or legal factors. n:csd:\RENTREGS. WPD 13 VI. THE ,ARBITRATION PHASE A. PURPOSE OF AN ARBITRATION HEARING - An arbitration hearing is held to make a final determination concerning rental housing disputes when a conciliated or mediated agreement .has not been achieved or has been broken. B. CONDUCT DF ARBITRATION HEARING ON REFERRAL FROM MEDIATION OR CONCILIATION - When a voluntary agreement is not reached .during conciliation and the agent :grants arbitration, or when avoluntary agreement is notreached at a mediation hearing and one of the parties or the mediator .requests arbitration the following procedures will be followed: 1. Introduction -The Arbitrator will introduce him/herself, identify the parties, circulate a sign-in sheet, request that any representatives identify themselves, .and will briefly explain the hearing process. 2. The parties will be responsible for bringing all pertinent written documents and evidence to the initial hearing. The parties will be ,given full opportunity to present evidence and testimony. When one party has made its presentation, the remaining party will be :given an opportunity to make its presentation. 3. Response to Evidence and Testimony -The parties will be given reasonable opportunities to respond to the new documentation and issues. The Arbitrator has the discretion to recess the hearing or to allow the submission of written statements. 4. Request for Additional Information -The Arbitrator may request the submission of additional documentation or other information within ten days. When this request is made, the hearing is recessed until the submission for the .administrative purpose of receiving the additional information. In the event that the requested information is not provided or is incomplete, the Arbitrator may proceed to the making ofthe award. 5. Evidence -Evidence submitted will be retained by the Arbitrator for use in making the award .and will be provided to the Town's Agent along with the tape/s and the arbitration award. The Arbitrator will be the judge of the relevancy of the evidence. Conformity to legal rules of evidence is not necessary. A list of this evidence (exhibits) will be prepared and made a part of the record. 6. Testimony -The Arbitrator will judge whether or not testimony is material and relevant. A list of the names and addresses of any witness will be kept and made a part of the record. 7. Voluntary Agreement - An arbitrator may recess. the hearing for the purpose of allowing the parties to negotiate a voluntary agreement to resolve the dispute. At the request of the parties, an Arbitrator may .also assist them in coming. to and preparing a written voluntary agreement. C. CONDUCT OF ARBITRATION HEARINGS ON CLAIMS OF VIOLATION OF A VOLUNTARY AGREEMENT -Voluntary agreement forms contain a section making violation of the agreement subject to arbitration under these regulations and Title 9 (commencing with Section 1280), Part 3 of the California Code of Civil Procedure. Hearings for this purpose are similar to n:csd:\RENTREGS.WPD 14 those described in the previous section (V.A. 1-7). The State Code sets additional procedures. Those :involved in these hearings should read this section ofthe State Code. (Other differences are caused by the nature of these hearings.) This section covers these differences. 1, >3efore appealing for Arbitration, a letter.must be sent asking that the agreement be followed. This letter should point out where it is not being followed; for example, "fix the stove" or "remove the wrecked car". 2. Appeals may be :made to the Town's Agent by either party. Appeals must be in writing and must include a copy ofthe letter described above. 3. Clarification of Issues -After the introduction, the Arbitrator will ask the ,party who filed the appeal to state the issue. For example, "John Doe signed an:agreement that he would fix the stove/remove a wrecked car by June 15. Ile hasn't done that". 4. ~Ierification -The Arbitrator will determine if the agreement has been violated. 5. Remedies - If the agreement has been violated, the Arbitrator will .issue an award which compensates for the violation. The Arbitrator may require that the agreement be kept "John Doe .has to fix the stove/move the car"), that the rent be increased or decreased, or other just and equitable remedies, 6. Processing - A copy of the appeal will be sent to both parties with a notice of the arbitration hearing. 7. Authority of Arbitrator -The decision of the Arbitrator is final and legally binding. An Arbitrator has the authority to allow or disallow any rent increase or portion thereof and anay reasonably condition his/her award in any manner necessary to meet the purposes of the Ordinance. D. TIIVIING AND CONTENTS OF AWARD 1. The arbitration award shall be issued within 10 days of the close of the hearing. The allowance of time to submit additional information or written statements is a recess of the hearing and the award is due 10 days after this deadline. 2. The arbitration award .must identify the parties and make a clear statement of: a. Whether or not the proposed increase is reasonable; b. If a portion is reasonable, the dollar amount; c. Any conditions which are placed on the .award; d. An :attached summary of cost calculation; e. Arent schedule for any rents to be paid by or refunded to each tenant based on the .award and rents paid by the tenants since the time of the rent increase. VII. )FIEARING OFFICERS A. SELECTION CRITERIA -Hearing Officers .are those individuals who, .having met the following established criteria, have executed a contract with the Town or its Agent. Officers are also those program staff designated as blearing Officers for specific purposes. Dearing Officers must meet all of the following criteria. n:csd:\RENTREGS.WPD 15 l . Have received fourteen (14) hours formal training in mediation and seven (7) hours formal training on landlord/tenant law and economics of the ,rental industry. 2. Have observed two mediations or hearings similar to those of this program. 3. Shall .not own or rent property covered by the ordinance. 4. May not be an employee or an officer of groups or organizations which have or are viewed by significant numbers of tenants or landlords as .having taken advocacy positions in landlord tenant matters. B. THE PROGRAM ADMINISTRATOR is designated as a Hearing Officer for the purpose of: 1. Conciliation of cases; 2. Consolidation of cases; 3. Scheduling of hearings; 4. Acceptance of documentation and written .statements; 5. Acceptance of requests for mediation or arbitration. C. ASSIGNMENTS TO CASES 1. Mediation Cases -Mediators shall be assigned by program staff equitably and fairly, with due regard for the Mediator°s availability and experience. 2. Arbitration Cases - A selection list shall be sent to both parties that will contain at least three names of Arbitrators who meet one ofthe following qualifications: a. .Appointment to the American Arbitration Association°s Panel of Arbitrators; Completion of a Juris Doctor or equivalent degree from a .School of Law with proof of a course in arbitration; or b. Completion of six mediations, observation of one arbitration, and documentation of formal arbitration training. The tenants, if three or fewer, or their representative, and the owners may eliminate one name each. D. DISQUALIFICATION FROM CASES - A Hearing Officer shall disqualify themselves from hearing a case and can be disqualified by program staff at the request of one of the parties if: 1. The Hearing Officer knows or has reason to know he/she has a financial interest affected by the determination or award. 2. The Hearing Officer is related to one of the .parties or their representatives to the third .degree. 3. The Hearing Officer has been retained or employed by one of the parties within the past two years, has given advice to one of the .parties :relative to the issues involved in the hearing. 4. It appears probable that the Hearing Officer by reason of bias or prejudice cannot provide a fair and impartial hearing. 5. The Hearing Officer is a early to the hearing. A Hearing Officer is not disqualified from hearing a case where .one or more of the parties have appeared before him/her in an earlier hearing. The parties may waive their right to the n:csd:\RENTREGS.WPD 16 disqualification of a Hearing Officer by a written statement accepting his/her service. E. REVIEW OF HEARING OFFICER'S PERFORMANCE -The program staff will periodically.review the performance of Hearing Officers and will inform the Town of the execution and termination of Hearing Officer's contracts. VIII. MISDEMEANORS AND ENFORCEMENT A. THE ORDINANCE PROVIDES THAT IT IS A MISDEMEANOR: 1. For a landlord to evict tenants in retaliation for tenants organizing or exercising rights granted by the Ordinance. . 2. Fora landlord to evict a tenant when the landlord's dominant motive is to evade the purposes of the Ordinances. 3. For a landlord to demand, accept, receive, or retain any rent in excess of the maximum rent allowed by a mediation agreement or an arbitration award. B. INVESTIGATION -Program staff will :receive and investigate complaints of alleged misdemeanor violations. When complaints are received of an alleged violation which has not yet .occurred or is in the process of occurring, it is the policy of this program to prevent it, when possible, by informational contacts with the landlord. In the event that the investigation shows that a violation has or is in the process-of occurring and that it is not possible to prevent, a request will be made to the Town Attorney for .review and prosecution. Either party can pursue civil action after the conclusion of Town Rental Mediation procedures. C. ADDITIONAL CIVIL RIGHTS -Tenants have additional civil rights not covered by this chapter. Either partycan pursue civil action after the conclusion of Town Rental Dispute Resolution Procedures. IX. APPEAL OF ADMINISTRATIVE ACTION Administrative. actions by program staff may be appealed to the Director of Community Services. Individuals also have the right to present information and .recommendations on the implementation of these regulations to the Rent Advisory Committee. X. DEFINITIONS Amiiversar;~ Twelve (12) months from the last rent increase. Award: The written decision of an Arbitrator. Base Rent Increase: S% or 70% of the CPI, whichever is greater. Capital Improvements: Improvements which materially add to the value ofthe property, appreciably prolong its useful life, or adapt it to new uses. Capital Improvements are improvements for which the useful life is likely to be five years or more. Committee:. The Los Gatos Rent Advisory Committee appointed by the Town Council. CPI -Consumer Price Index: CPI is the Consumer Price Index -All Urban Consumers for the San Francisco Oakland area. The figure is released monthly from the Bureau of Labor Statistics. n: csd:\RENTREGS. WPD 17 Cost of Debt Service: The periodic ....payment or payments due under any security or financing device which is applicable to the rental unit, or the building, or complex, or other real property of which it is a part, including any fees, commissions, or other charges incurred in obtaining such financing which are required to be amortized for a period exceeding sixty (60) months pursuant to the Internal Revenue Code and the regulations issued pursuant thereto. Cost of Operation and Maintenance: Expenses, exclusive of original costs of debt service, costs of rehabilitation, and costs of capital improvements, incurred in the operation and management of the :rental unit and the building or complex of buildings of which it is a part together with common .areas, including but not limited to: real estate taxes, business taxes and fees {including fees payable by landlords under this Chapter), insurance, sewer service charges, utilities, janitorial service, professional property management fees, increased interest costs of variable interest rate mortgages over the base interest incurred, pool maintenance, exterior building and grounds maintenance, supplies, equipment,. refuse removal, elevator service, and .security services or systems. Costs of Rehabilitation: Any rehabilitation or repair work .costs done on or in a rental unit or common area of the housing complex containing the rental unit and which work was done in order to comply with an order issued by the Los Gatos Building Department, or the Santa Clara County Fire Department,. or to repair damage resulting from fire, earthquake, or other natural disaster. Counsel: An attorney or other advisor. Dav: A calendar day. Determination: A summary report by a mediator or a written decision by an arbitrator. Fact Finding: The action of an Arbitrator in establishing that certain facts, such as costs or service reductions, exist. Hearing: A meeting of the parties in a dispute with either a Mediator or an Arbitrator to resolve the issues. Hearing Officer: A person .designated by the Town Manager or the Town's Agent who mediates or arbitrates rental disputes pursuant to the .provisions of this Chapter. Hearing Counselor: A person designated by the Town Manager or its agent who counsels parties with regard to housing disputes and conciliates, as necessary. Housing; Services: Those services provided and associated with the use or occupancy of a rental unit,. including but not limited to repairs, replacement, maintenance, painting, light, heat, water,. elevator service, laundry facilities and privileges, janitorial service, refuse removal, furnishings, telephone, parking, and any other benefits, .privileges, or facilities. Landlord: An owner, lessor, or sublessor; who receives or is entitled to receive rent for the use and occupancy of any rental unit or portion thereof, .and the agent, representative, or successor of any of the foregoing. Party: A landlord or tenant(s) who is involved in the hearing process. Petition: A petition for conciliation. Program .Staff: The staff of the Los Gatos Rent Mediation Program assigned to implement the Rental Dispute Mediation and Arbitration Ordinance. n:csd:\RENTREGS.WPD 18 Rent: The consideration, .including .any bonus, benefit or gratuity, demanded or received by a landlord for or in connection with the use or occupancy of a rental unit, or the assignment of a lease for such a unit, including housing services or subletting. Rent Increase: Any additional rent .due or paid by a tenant for a rental unit, including any reduction in housing services without a corresponding reduction in the monies demanded or paid for rent. :Rental Unit: Any building or part of a building which is used for residence and which is rented to a tenant as a dwelling place, except: • Rental units, located in a building or group of buildings on the same premises, containing only one dwelling units. • A room in an owner-occupied dwelling where under the lease provisions the tenant does not have substantially exclusive use of a kitchen. • A single house, condominium or planned development {Business and Professions Code Section 11003.0) unit. • A hotel room or similar accommodation ordinarily let for occupancy by the same tenant for periods of less than i 5 days. • A hospital room, skilled nursing facility or similar accommodation where the main factor in the rental relationship is the personal. care given to the tenant. • A dwelling owned, operated and managed by a governmentagency or which is exempted by State or Federal law from rent regulation. .Tenant: A person or persons entitled by written or oral agreement or by sufferance to occupy a rental unit to the exclusion of others. Tenancy at Sufferance: When a tenant comes into possession of a premises lawfully but holds over either after the expiration of a lease or after the expiration date of a notice to vacate. ~Iacancv: Untenanted. A rental unit is vacant when there are no tenants living there. To be vacant, the unit must be untenanted; if a roommate moves, there is no vacancy, unless the landlord and the tenants have a prior written agreement that this does create a vacancy. If a tenant moves after receiving a 30-Day Notice from the landlord, it is not voluntary. If the increase is .after the eviction of a tenant by a court for non- payment, chronically late payment, or other material violation of a written rental agreement-it is considered a voluntary vacancy. Voluntary Agreement: An agreement entered into by mediating parties defining elements of resolution dispute. Warranty of Habitability: A landlord's minimum obligations under California Code include that: • There are no leaks when it rains, and no broken doors or windows; ® The plumbing and/or gas facilities must be functional, including provisions of hot and cold water, and a working sewer or septic tank connection; • The heater must be functional and be safe; • The lights and wiring must be functional and be safe; • Floors, stairways and railings have to be in good repair; n:csd:\RENTREGS.WPD 19 • When it is rented, the unit must be clean, with no piles of trash or garbage and no rats, mice, roaches, or other pests; • The landlord must provide enough cans or bins with covers for :the garbage; • There must be one working phone jack; and, • A working smoke alarm at the time of rental. Regs adopted by resolution #1998-148 effective June 4, 1998. Revised and adopted by resolution #1999-143 effective 10/20/99. n:csd:\RENTREGS. WPD 2O