Tenant made her bed, claims she sleeps in it
Her lawyer says the bed at Patricia Lard’s Santa Monica apartment is “her only bed in the United States,” and that Lard is an international businesswoman.
“Take the Fifth,” her landlord might argue. The Fifth Amendment’s property rights provisions have been dragged into a landlord-tenant dispute which covers everything from rent control law to the Constitution.
Lisa Borten wants to evict Lard, her tenant of nearly nine years. Borten argues it’s unconstitutional — an illegal taking of property under the Fifth Amendment — to require her to charge rent-controlled prices for a tenant who doesn’t need the break.
The case represents a twist in the new hot-button rent control issue of whether the tenant’s primary address is in Santa Monica. The law currently makes it possible for landlords to raise the rent on tenants who really live elsewhere — and thus don’t need the protection rent control provides.
“The proof is in the pudding,” said Rosario Perry, a landlord attorney familiar with the case. “If Borten can evict her on a 30-day notice, if we win this lawsuit, she cannot raise the rent to market rates... period.”
Rent control was established to make it more affordable for people to remain in their apartments. Perry agrees with a new Santa Monica rule — Regulation 3304, which since last March has allowed landlords to raise the rent on part-time tenants. Renters who actually live elsewhere shouldn’t be entitled to rent control protection, because they are keeping units off the market and thereby driving up rents for everyone, Perry maintains.
The law, passed in Santa Monica, is being challenged in court, though the judge overseeing the matter has indicated he expects it will prevail at trial.
Borten’s lawsuit is different because it argues that extending rent control to part-time tenants violates the Fifth Amendment. Perry said the government needs to have a justification in controlling rents, because it essentially removes control of property from landlords, who own it. He added no such justification exists if the unit’s being used as a second or vacation home — or even as office or storage space.
“(The law) is contradictory to common sense and actually to the stated purpose of rent control.” — — ROSARIO PERRY Landlord attorney
“It’s contradictory to common sense and actually to the stated purpose of rent control,” he said.
But Lard isn’t giving up easily. And — after nearly nine years in her apartment — is no stranger to squabbling with her landlord. Lard, who spends a bulk of her time overseas, has successfully fended off the eviction lawsuit for almost three years. Andrew Zanger, her lawyer, characterized the legal fight as an attempt to make money by Borten.
A status conference on the matter is scheduled for today. The case has already been tried once, with the judge siding with Lard. Borten appealed on the constitutionality issue and the Second District Court of Appeals agreed to send it back for another trial, which is expected to take place later this year. Since then, Borten has added a new defendant to her lawsuit — City Hall.
City Hall is being dragged into the what began as an eviction lawsuit because the rent control board unfairly protects tenants from eviction, even when they actually live elsewhere, the suit alleges. The suit seeks eviction as opposed to the usual choice of landlords — a rent increase. Lawyers for the rent control board have said they doubted the courts would find in Borten’s favor.
451,“There are a lot of different tests... to determine whether a law’s (an unconstitutional) taking (of property),” said Doris Ganga, a lawyer for the rent control board. “But the most important test (of the rent control law) is whether or not the landlord is making a fair return, is making enough money.
“But the most important test (of the rent control law) is whether or not the landlord is making a fair return, is making enough money.” — — DORIS GANGA Rent Control Board Attorney
“We certainly have a rational basis for the rent control law — on an individual situation it might not work so well, but there’s certainly a constitutional basis for it,” she added.
Lard didn’t return calls seeking comment. Zanger said she may be out of town on business, but added Lard’s Third Street apartment is her “only bed in the United States.”
“The government has made the determination that rent control is constitutional and the landlord made no restrictions on how a person is supposed to use their apartment,” Zanger said Tuesday. “If the landlord wants a permanent resident, (they should) put it in the lease.”
Rosario Perry
Originally published in the Santa Monica Daily Press print edition on February 18, 2004. Read the original PDF.