Tenants 2, Landlords 0 after First Rent Board Hearings under New Regulation

By Oliver Lukacs
Staff Writer

Oct. 3 -- In its first rulings under a new regulation, the Rent Control Board last week decided in favor of two separate tenants accused by their landlords of using their units as vacation homes.

The landlords were appealing decisions in two of the first cases filed under a regulation adopted in February that allows landlords to raise rents to market value if they can prove the tenants are not using their apartments as a primary residence.

Of the 117 cases filed since the regulation took effect, 20 have been heard by hearing examiners whose decisions are being appealed to the rent board.

One of the cases heard last Thursday -- which was administratively rejected because it failed to meet the preliminary requirements of proof needed to warrant further investigation -- helped establish the kind of proof a landlord must provide to obtain a hearing.

The other case -- which went before a hearings officer -- helped define what needs to be proven in order to jack-up the rent.

In the first case, the landlord accused a tenant of using the rent-controlled apartment on Franklin Street she rents with her husband as a full-time painting studio and a place to crash when her husband -- who lives next door -- is snoring too loudly,

“This is not the kind of case we wanted landlords to take advantage of,” said Commissioner Alan Toy.

Milton Condon, representing his 98-year-old mother Sadie Condon, who owns the apartment building, said the tenant was violating the section of the regulation stipulating that a person must carry on “basic living activity” in the apartment for it to constitute a primary residence.

“For me basic living activity is cooking, eating, sleeping and having sex and having entertainment,” which wasn’t taking place in the apartment, Condon said. “I don’t consider painting a basic living activity.”

But the board, which voted unanimously against the appeal, disagreed.

“At the end of the day it comes down to your interpretation of basic living activity,” said Commissioner Jeffrey Sklar. “They do not have to be basic to all or shared by all.”

Because the only proof on the petition filed by Condon was the assertion that painting did not meet the primary residence criteria, it was administratively rejected for failing to make a prima facia case -- the necessary preliminary requirement needed under the regulation to grant an informal hearing.

“It’s mere speculation,” said Chair Betty Mueller. “I think you can work on it and develop a prima facia. Study the law, and maybe you can’t” reach the threshold for proof.

The Board also unanimously rejected an appeal in the first case filed under the new regulation. In the case, Carol Noonan was accused by her landlord of living in a house she co-owns with her boyfriend in Pasadena while using her Santa Monica apartment of 20 years -- which she rents for $700 a month -- as a weekend vacation home.

Deciding in favor of Noonan, the hearing officer concluded after a lengthy investigation and hearing process that “while the tenant’s life is connected to two homes, she spends more time in Santa Monica, and carries on more of her basic living activity in Santa Monica,” according the staff report.

The report, compiled from testimonies at the hearing and from information gathered by an investigative officer, said that while Noonan did in fact share the title of the home with her boyfriend, her voting registration and driver’s license address listed her Santa Monica home, which showed all the signs of ongoing basic living activity.

Andrew Zanger, the attorney representing Noonan, pointed out that after visiting both homes the investigating officer found that the Pasadena home was “masculine” in the clothes and personal belongings in the house, while the Santa Monica home was clearly “feminine.”

But Rosario Perry, the landlord’s attorney, countered that Noonan signed under penalty of perjury a loan contract and a federal tax form giving a homeowner tax exemption to Noonan as a “primary resident” of the Pasadena home. Perry added that under the deed, she would become the owner of the property in the event of her boyfriend's death.

The board didn't buy Perry's arguments.

“This is a woman who visits her boyfriend, and who got a special present from him, but that in reality lives in Santa Monica,” said Commissioner Toy, referring to the house deed, which Noonan did not pay for or receive tax benefits from.

Noonan’s landlord, Les Gibbs, who went through the lengthy process because the rent hike to market value can mean hundreds, if not thousands of additional dollars in rent each month, said after the meeting he was not going to appeal the case to California superior court.