Ordinance 3287CITY OF ALAMEDA ORDINANCE NO. 3287
New Series
AN URGENCY UNCODIFIED ORDINANCE AMENDING
UNCODIFIED ORDINANCE NO. 3275 TO PROVIDE THAT ANY
AGREEMENT BETWEEN A LANDLORD AND A TENANT
CONCERNING PAYMENT OF "DEFERRED RENT" MUST LIMIT A
LANDLORD'S REMEDY FOR A TENANT'S BREACH OF SUCH
AGREEMENT TO MONEY DAMAGES AND, AS TO THE TENANT'S
FAILURE TO PAY THE DEFERRED RENT IN THE AGREEMENT,
EXPRESSLY WAIVE A LANDLORD'S RIGHT TO FILE AN
UNLAWFUL DETAINER ACTION TO RECOVER POSSESSION OF A
TENANT'S RENTAL UNIT OR FOR ANY UNPAID RENT THAT WAS
THE SUBJECT OF THE AGREEMENT
WHEREAS, Section 3-12 of the City Charter authorizes the City Council, with a
4/5 vote, to adopt, as an urgency measure, an ordinance for the immediate
preservation of the public health or safety without following the procedures otherwise
required prior to adoption of an ordinance; and
WHEREAS, Government Code Section 36937 allows a city, including a charter
city, to adopt an urgency ordinance to take effect immediately upon its adoption for the
preservation of the public peace, health or safety upon a finding of facts constituting the
urgency thereof; and
WHEREAS, conditions of extreme peril to the health, safety and welfare of persons
have arisen in the world, the nation, the State, the County of Alameda and the City of
Alameda due to the COVID-19 pandemic; and
WHEREAS, in response to this pandemic, and in order to protect public health and
safety, the Governor of the State of California declared a State of Emergency; and
WHEREAS, in response to this pandemic, and in order to protect public health and
safety, the City Council of the City of Alameda on March 17, 2020, declared a local
emergency; and
WHEREAS, on April 7, 2020, on June 16, 2020, and on September 1, 2020, the
City Council extended the local emergency until the State's declaration of emergency is
rescinded, or sooner should it be appropriate to lift the declaration of local emergency; and
WHEREAS, due to the COVID-19 pandemic in the City of Alameda, the City
Council determined that the public health, safety and welfare were not adequately
protected from the possibility of evictions for the failure of a residential or commercial
tenant to pay rent, or for evictions following a foreclosure of a mortgage, and it was in
the interest of the City, all residential and commercial tenants, all residential and
commercial mortgagors, and of the community as a whole, that the City adopt
ordinances to protect residential and commercial tenants, and residential and
commercial mortgagors, who face eviction due to a substantial loss of income or
other adverse economic circumstances, arising out of the COVID-19 pandemic; and
WHEREAS, the Council's most recently adopted comprehensive Ordinance to
protect residential and commercial tenants, and residential and commercial mortgagors,
who face eviction due to substantial loss of income, or other adverse economic
circumstances, arising out of the COVID-19 pandemic, was Ordinance No. 3275, adopted
on April 21, 2020; and
WHEREAS, Ordinance No. 3275 provides in part that tenants have under certain
circumstances a substantive defense for not paying rent between March 1, 2020 and 30
days after the City Council rescinds the declaration of local emergency, and that the
substantive defense for any unpaid "deferred rent" that accrues between March 1, 2020
and 30 days after the Council rescinds the declaration of local emergency would be
available for 210 days; and
WHEREAS, at the time Ordinance No. 3275 was adopted, it was uncertain how
long the State or local emergency would be in effect and therefore providing tenants with
a seven-month time frame following the rescission of the declaration of local emergency
for the substantive defense to be available to tenants (in essence providing six months in
which to pay deferred rent) was a reasonable period of time; and
WHEREAS, because the State and local emergency was (and is) continuing, on
September 1, 2020, the City Council adopted an ordinance amending Ordinance No.
3275 to extend to 395 days the length of the substantive defense available to tenants (in
essence providing twelve months from 30 days after the City Council rescinds the local
emergency) that a tenant has to repay deferred rent; and
WHEREAS, notwithstanding these extended time periods, repaying deferred rent
may pose a financial hardship on some tenants and landlords and tenants may choose
to enter into agreements concerning the payment of deferred rent, for example, a landlord
may accept partial payment of rent as satisfying a tenant's obligation to pay the full
amount of the rent, or a landlord and a tenant may agree that a tenant may pay deferred
rent over a longer period of time than as provided in the Ordinance; and
WHEREAS, notwithstanding such agreements, tenants have expressed concerns
that if they should default in their obligations under such agreements, they could be
subject to an unlawful detainer action under State law; and
WHEREAS, tenants therefore need protection that if they do enter into these types
of agreements that the landlords' remedy will be limited to money damages under the
agreement and landlords would be precluded from thereafter filing unlawful detainer
actions to recover the unpaid rent and regain possession of the tenant's rental unit; and
WHEREAS, the State and local emergency continues, now into its sixth month,
and there is no clear indication that either will be rescinded soon; and
WHEREAS, the Council finds the conditions that were expressed in its findings in
Ordinance Nos. 3275 and Ordinance No. 3284 (adopted on September 1, 2020) continue
to exist and incorporate them herein by reference; and
WHEREAS, in light of the numerous serious concerns set forth herein, including
but not limited to the current and immediate threat to the health, safety, and welfare of
the City's residential and commercial tenants, and the adverse impacts that would
result from evictions due to a residential or a commercial tenant's loss of
substantial income or other adverse financial circumstances arising out of the
COVID-19 pandemic, the City Council determines it is in the interest of preserving the
public health, safety and general welfare to adopt this ordinance; and
WHEREAS, the City Council finds and determines that if this Ordinance were not
adopted as an urgency ordinance, to take effect immediately upon its adoption, tenants
could enter into agreements with their landlords that would subject them to an unlawful
detainer action under State law should tenants default in their obligations under such
agreements; and
WHEREAS, for reasons set forth above, this ordinance is declared by the City
Council to be necessary for preserving the public welfare, health, or safety and to avoid
a current and direct threat to the health, safety, or welfare of the community, and the
recitals above taken together constitute the City Council's statements of the reasons
constituting such necessity; and
WHEREAS, adoption of this ordinance is exempt from review under the California
Environmental Quality Act: Section 15378 (not a project); and Section 15061(b)(3) (no
significant environmental impact); and
WHEREAS, by the staff reports, testimony, and documentary evidence presented at
the March 17, 2020, April 7, 2020, April 21, 2020, June 16, 2020, July 21, 2020 and
September 1, 2020 City Council meetings, the City Council has been provided with
additional information upon which the findings and actions set forth in this ordinance are
based.
NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF
ALAMEDA does ordain as follows:
SECTION 1. The City Council finds and determines the foregoing recitals to be
true and correct and hereby incorporates them into this ordinance.
SECTION 2. From the effective date of this ordinance, a new paragraph 8 is
added to Section 2 of Ordinance No. 3275 to read as follows:
8. If a residential landlord and a residential tenant enter into an agreement by
which the tenant agrees to pay the landlord all or some of the rent that the tenant
has not paid between March 1, 2020 and 30 days after the City's rescission of the
declaration of the local emergency due to a Substantial Loss of Income relating to
or resulting from the COVID-19 pandemic, the agreement must provide that the
landlord's sole remedy for the tenant's breach of the agreement is money
damages, to be collected as any other consumer debt, and that the landlord
expressly waives the landlord's right to file an unlawful detainer action against the
tenant for the tenant's breach of the Agreement or for any unpaid rent that is the
subject of the agreement. Any agreement entered into after the effective date of
this Ordinance that does not have these provisions is contrary to public policy and
is deemed null and void.
SECTION 3: This ordinance is enacted pursuant to the City of Alameda's general
police powers, Section 3-12 of the Charter of the City of Alameda, Article XI of the
California Constitution, and Government Code Section 36937.
SECTION 4. If any section, subsection, sentence, clause, or phrase of this
ordinance is for any reason held by a court of competent jurisdiction to be invalid,
such decision shall not affect the validity of the remaining portions of this ordinance.
The City Council declares that it would have adopted this ordinance and each section,
subsection, sentence, clause, and phrase thereof, irrespective of the fact that any one or
more section, subsection, sentence, clause, or phrase be declared invalid.
SECTION 5. All agreements described in this Ordinance after adoption of this
Ordinance shall be subject to this Ordinance. As an urgency ordinance, this Ordinance
becomes effective immediately upon its adoption at a first reading by a four-fifths vote of
the City Council.
FIR
Attest:
Lara Weisiger, City Cle k
I certify that the foregoing Ordinance was duly and regularly adopted and
passed by the City Council of the City of Alameda in a regular meeting thereof held on
the 1 st day of September 2020 by the following vote:
AYES: Councilmembers Knox White, Oddie, Vella and Mayor Ezzy
Ashcraft — 4.
NOES: Councilmember Daysog — 1.
ABSENT: None.
ABSTENTIONS: None.
IN WITNESS, WHEREOF, I have hereunto set my hand and affixed the official
seal of said City this 2nd day of September 2020.
Lara Weisiger, Cit Jerk
City of Alameda
APPROVED AS TO FORM:
Yibinien, City Attorney
City of Alameda