Fairfax Municipal Code Ch. 5.55 Mandatory Mediation for Rental Increases

It is the purpose and intent of this chapter to increase certainty and fairness in the residential rental market within the Town of Fairfax, in order to promote the health, safety, and general welfare of residents and businesses within the town. This chapter only governs disputes between landlords and tenants of rental dwelling units located within the Town of Fairfax.

(Ord. 892, passed 11-5-2024)

(A) The provisions of this chapter shall apply to all dwelling units in the town containing a separate bathroom, kitchen, and living area, including a single-family dwelling or unit in a multifamily or multipurpose dwelling, a unit in a condominium or cooperative housing project, or a unit in a structure that is being used for residential uses whether or not the residential use is a conforming use permitted under the town code, which is hired, rented, or leased to a household within the meaning of Cal. Civil Code § 1940. 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) Notwithstanding anything to the contrary above, the provisions of this chapter shall not apply to the following:

(1) Any dwelling unit that is owned or operated by any government agency; or

(2) Any dwelling, unit for which one of the following is true:

(a) The rent is limited to no more than affordable rent, as such term is defined in Cal. Health and Safety Code § 50053, pursuant and subject to legally binding restrictions enforceable against and/or governing such units; or

(b) The rent is directly subsidized by a government agency such that the tenant's portion of the rent does not exceed 30% of income.

For the purpose of this chapter, the following words and phrases shall mean:

DESIGNATED SERVICE PROVIDER. A party, organization, or other governmental agency/ department (e.g., County of Marin) selected by the Town Manager to provide mediation services and other tasks necessary to implement the program and procedures contained in this chapter and any associated guidelines.

DWELLING UNIT. A structure or the part of a structure that is used as a home, residence, or sleeping place by one person who maintains a household or by two or more persons who maintain a common household as defined in Cal. Civil Code § 1940 and the town code.

GOOD FAITH PARTICIPATION. Includes the affirmative duty of the landlord to: (i) refrain from any harassment or other prohibited activity described in § 5.55.060 and to (ii) refrain from an unlawful detainer proceeding while the parties are engaged in proceedings under this chapter excepting only those actions authorized by Cal. Code of Civil Procedure §§ 1161(3) and 1161(4) or any successor provisions. GOOD FAITH PARTICIPATION also includes the affirmative duty of the tenant to abide by the terms of the lease or rental agreement and to pay all lawful rent owed.

GUIDELINES. Any written regulations forms, notices for the administration and implementation of this chapter adopted by the Town Manager, with review by the Town Attorney, and included in the guidelines.

LANDLORD. An owner, lessor, or sublessor who receives or is entitled to receive rent for the use and occupancy of any dwelling unit or portion thereof.

MEDIATION. One or more meetings in which a landlord and tenant have the opportunity to directly communicate with a mediator and each other in a face-to-face setting at a neutral location in order to resolve a rental housing dispute under ground rules designed to protect the confidentiality and neutrality of the communications.

MEDIATOR. A person who is employed by the designated service provider and who meets any criteria for conducting mediations that may be established in the guidelines.

RENT. The consideration, including any funds, labor, bonus, benefit, or gratuity, demanded or received by a landlord for or in connection with the use and occupancy of a dwelling unit and the housing services provided therewith, or for the assignment of a rental agreement for a dwelling unit.

TENANT. A person entitled by written or oral agreement, or by sufferance, to the use or occupancy of a dwelling unit.

TOWN MANAGER. The Fairfax Town Manager or his or her designee unless otherwise specified.

(Ord. 892, passed 11-5-2024)

(A) Tenant-initiated mediation. A tenant residing in a dwelling unit may file a request and receive mediation services within either 30 calendar days from the enactment of this chapter or ten calendar days of the tenant's receipt of one or more notices in accordance with Cal. Civil Code § 827 that individually or cumulatively increase rent more than 5% within any 12-month period.

(B) Landlord-requested mediation. Any landlord may file a request and receive mediation services in order to pursue a rent increase greater than 5% within any 12-month period.

(Ord. 892, passed 11-5-2024)

(A) Designated service provider. The Town Manager shall contract with or designate a designated service provider to provide mediation services. The guidelines may include a description of minimum qualifications for the designated service provider and its mediators.

(B) Mediation requests.

(1) Any tenant or landlord eligible for mediation under § 5.55.040 may request mediation services from the designated service provider.

(2) Each landlord and/or tenant requesting mediation services must complete and sign a form under penalty of perjury that demonstrates eligibility for mediation under this chapter and includes other information as may be specified in the guidelines.

(3) Separate requests for mediation services that involve one or more of the same parties may be consolidated with the consent of the landlord and the other tenant(s), but consolidation is not required and shall not affect individuals' ability to be separately represented or to bring a separate legal action.

(4) If an eligible tenant has requested mediation as a result of receiving one or more notices in accordance with Cal. Civil Code § 827 that individually or cumulatively increase rent more than 5% within any 12-month period, unless the parties otherwise agree in writing, such noticed rent increase will not be effective until the mediation concludes.

(C) Two-step mediation process. The designated service provider shall assign a mediator within ten calendar days of receiving a complete request for mediation services. The assigned mediator shall offer a two-step mediation process as follows:

(1) Within two business days of receiving a mediation assignment from the designated service provider, the mediator shall provide notice of the mediation to the landlord and tenant. The mediation notice shall, at a minimum inform each party of their obligation to appear at the mediation and participate in the mediation in good faith. The mediator shall make reasonable efforts to schedule mediation sessions at times that are mutually convenient for the landlord and the tenant, which may include times that are outside of business hours. The mediation process shall commence upon notification of the landlord and tenant by the mediator.

(a) A mediator may notify the landlord and/or tenant of the mediation process via telephone, email, or any other form of communication, but at a minimum, the mediator must notify each party in writing via first-class mail, postage prepaid to each parties' address of record.

(b) Following the mediator sending such notification, both the landlord and the tenant have an affirmative obligation to participate in the mediation in good faith until the mediation concludes.

(2) The mediation process shall conclude upon the earlier of:

(a) The execution of a legally enforceable, written mediation agreement signed by all parties to the mediation service under § 5.55.050(E);

(b) The mediator's determination that no further progress is likely to result from continued mediation; or

(c) All of the parties to the mediation indicate in writing that the mediation has concluded to their satisfaction. In no event shall a mediation process last longer than 30 calendar days from when the parties are notified unless the parties agree in writing to extend the mediation term. If no legally enforceable, written mediation agreement is reached, the mediator shall prepare and distribute a nonbinding mediation statement under § 5.55.050(F). The mediator shall send the mediation statement to each party's address of record via first-class mail, postage prepaid.

(D) Mandatory participation. Every party to a mediation is affirmatively obligated to participate in such mediation in good faith until the mediator determines the mediation has concluded.

(1) Definition. For purposes of this section, GOOD FAITH PARTICIPATION includes by reference the definition described in § 5.55.030 and also means the mutual obligation of the landlord and tenant to meet on each occasion when notified of mediation proceedings, provide relevant information, exchange proposals, timely consider and respond to proposals by opposite parties, and engage in meaningful discussion on the subject of proposed rent increases and issues related to the rent increase.

(2) Failure to participate in good faith.

(a) No rent increase will be effective unless or until the landlord of the dwelling unit complies with the provisions of this chapter by participating in good faith as described in §§ 5.55.030 and 5.55.050 throughout the entirety of a mediation process.

(b) If a tenant fails to participate in good faith, the mediator at his or her discretion may determine that the tenant has withdrawn their request for mediation service and conclude the mediation process, allowing any rent increase to be implemented in accordance with the notice requirements identified in Cal. Civil Code § 827.

(3) Finding of a failure to participate in good faith.

(a) A mediator or party to the mediation process may request that the Town Manager investigate a claim of failure to participate in good faith by another party. The Town Manager shall be responsible for investigating allegations of a lack of good faith participation by any party.

(b) Any determination that a party has failed to participate in good faith in a proceeding under this chapter shall only be made after a fair hearing by a hearing officer appointed by the Town Manager and the rendition of factual findings supported by the record. All parties to such hearing must receive written notice of the hearing at least five business days prior to the hearing date. Following such a hearing, the Town Manager shall give prompt notice of the determination by first-class mail, postage prepaid, to the affected party. Additional hearing procedures, including procedures for appeals (if any), may be specified in the guidelines.

(E) Mediation agreements.

(1) Any agreement reached by the parties in mediation must:

(a) Be made in writing and signed by the parties;

(b) State the specific terms of the mediation agreement including the duration and conditions of the agreement;

(c) State the effective date of any agreed-upon rent increase and stipulate to the adequacy of notice for any rent increase in accordance with Cal. Civil Code § 827;

(d) Be legally enforceable against the parties to the agreement;

(e) Provide that the agreement may be enforced via civil action by any party; and

(f) Provide that any agent or representative signing a mediation agreement on behalf of other persons shall be responsible for promptly providing a copy of the agreement to the parties they represent.

(2) A tenant bound by a mediation agreement may not request further mediation concerning any rent increase covering the same time period included in the mediation agreement but may request mediation concerning an additional rent increase that is first noticed or occurs after the mediation agreement is signed by both parties.

(F) Mediation statements. If a mediation service does not result in a mediation agreement, then the designated mediator shall produce a nonbinding mediation statement. The guidelines shall include form mediation agreements and mediation statements that include, without limitation, the following information:

(1) The name of each party that appeared for and participated in good faith in the mediation service; and

(2) A concise summary of the dispute including the perspectives of each party that appeared for and participated in good faith in the mediation service.

(Ord. 892, passed 11-5-2024)

(A) No landlord may do any of the following in bad faith, with ulterior motive, or without honest intent:

(1) Interrupt, fail to provide, or threaten to interrupt or fail to provide any housing service under a lease or rental agreement, including but not limited to utility services and other amenities and services agreed to by contract;

(2) Fail to perform repairs or maintenance required by contract or by state, town, or county housing, health, or safety laws;

(3) Fail to exercise due diligence to complete repairs and maintenance once undertaken, including the failure to follow industry-appropriate safety standards and protocols;

(4) Abuse or otherwise improperly use landlord's right to access the property;

(5) Remove personal property of the tenant(s) from the dwelling unit;

(6) Influence or attempt to influence the tenant(s) to vacate the unit by means of fraud, intimidation, or coercion (including but not limited to threats based on immigration status in violation of Cal. Civil Code § 1940.3;

(7) Offer payment or any other consideration, in return for the tenant(s) vacating the dwelling unit, more often than once every six months;

(8) Threaten the tenant(s) by word or gesture with physical harm;

(9) Interfere with the tenant(s) right to quiet use and enjoyment of the dwelling unit;

(10) Refuse to accept or acknowledge receipt of lawful rent from the tenant(s);

(11) Interfere with the tenant(s) right to privacy;

(12) Request information that violates the tenant(s) right to privacy;

(13) Other repeated acts or omissions of such significance as to substantially interfere with or disturb the tenant(s) comfort, repose, peace, or quiet enjoyment, and that cause, are likely to cause, or are intended to cause the tenant(s) to vacate the dwelling unit; or

(14) Retaliate against the tenant(s) for the tenant(s) exercise of rights under this chapter or state or federal law.

(B) Nothing in this § 5.55.060 prohibits the lawful eviction of a tenant in accordance with Cal. Civil Code § 1946.1 or by any other appropriate legal means.

(Ord. 892, passed 11-5-2024)

(A) Injunctive relief. Any aggrieved person may enforce the provisions of this chapter by means of a civil injunctive action. Any person who commits, or proposes to commit, an act in violation of this chapter may be enjoined therefrom by any court of competent jurisdiction. An action for injunction under this section may be brought by any aggrieved person, by county counsel, the district attorney, or by any person or entity which will fairly and adequately represent the interests of the protected class.

(B) Civil liability. Any person who violates any of the provisions of this chapter or who aids in the violation of any provisions of this chapter is liable for, and the court must award to the individual whose rights are violated, three times the amount of special and general damages. The court may award in addition thereto not less than $200 but not more than $400, together with attorney's fees, costs of action, and punitive damages. Civil actions filed pursuant to this section must be filed within one year of the events giving rise to the alleged cause of action.

(Ord. 892, passed 11-5-2024)

(A) Landlords must provide to each tenant a notice of tenant rights under this chapter that describes the mediation service and how to request service; a form for providing such notice may be issued in the guidelines.

(B) Landlords must provide to tenants the notice of tenant rights under § 5.55.080(A) in the following circumstances:

(1) Within 30 calendar days of enactment of this chapter;

(2) When entering a lease or rental agreement;

(3) When renewing a lease or rental agreement;

(4) When providing notice of a rent increase; and

(5) At such times as required by the town, which may include, but is not limited to, when this chapter is significantly amended.

(C) All notices provided under this section shall be provided in the primary language of the tenant, if reasonably feasible. If the tenant's rental agreement was negotiated in another language, the landlord is obligated to provide an accurate translation of the notification in that other language as well. In the event that the designated service provider is unable to provide translation services for the parties, the parties who do not speak or are not comfortable with English must provide their own translators. To participate in mediation proceedings, the translators will be required to take an oath that they are fluent in both English and the relevant foreign language and that they will fully and to the best of their ability translate the proceedings.

(D) Failure to comply with the notice provisions described in this chapter shall render any rental increase notice invalid and unenforceable. The failure to comply with the notice provisions will be cured only after the proper written notice of tenant's rights, along with a new rental increase notice, has been properly served on the tenant.

(Ord. 892, passed 11-5-2024)

Notwithstanding any other provision of law. except as provided in this chapter an owner of residential real property may establish the initial and all subsequent rental rates for a dwelling unit or rent unit under any circumstance permitted under state law, including but not limited to Cal. Civil Code §§ 1946.12-1946.13 and §§ 1954.50-1954.535. The town shall not enforce any limits on rent more restrictive than those set forth in state law and this chapter. Nothing in this section shall be construed to exempt an owner who has otherwise agreed by contract with a public entity to limit rent in exchange for any consideration from the obligations of that contract, nor shall it be construed to exempt any dwelling unit that is 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 and Safety Code § 50053 and as subsequently amended, from those restrictions. Any provision of law governing the rents that may be charged for a rental unit that was adopted after this measure was submitted for title and summary but prior to the effective date of this act, and that is inconsistent with this provision, is hereby repealed.

(Ord. 892, passed 11-5-2024)