By Mark Easter – Best Best & Krieger.
A nuisance residential or commercial property creates serious problems for the surrounding community and headaches for the officials who must deal with it. If left unchecked, these blighted properties become a chronic drain on the time and resources of cities and counties and can lead to deadly consequences.
Code enforcement provides administrative, criminal and civil tools to rehabilitate these problem properties and return them to productive use. When reaching for the tools in your tool box, we suggest that you start with the smaller tools and then work your way up to using bigger tools, as needed.
Typically, the first step in dealing with a nuisance property comes in the form of a notice of violation/stop work order. In some cases, this can take the form of a letter to the properly owner, or it can be an actual order, such as a red tag. Due process applies to this type of order – the property owner is advised of the violation, given corrective actions and deadlines to comply. The owner can pursue an appeals process. Be sure that the owner is given reasonable time to correct the violation(s) before fines are applied.
For some situations, an optional step is to schedule an office conference, which is essentially an informal meeting with the property owner (or property manager) and your appropriate staff. Since this is an informal meeting, attorneys don’t need to be present. Such a conference allows for important dialogue with the owner to identify the specific problems, the steps and/or hurdles to fixing them and educating the owner as to his/her responsibilities.
The next tool you could use is to hold a public nuisance hearing. Although these will differ by community, think of such hearings as in-house court procedures with either a Brown Act committee or an individual such as a city attorney staff member or a code officer serving as the hearing official. It is important to ensure that there is no bias or appearance of bias, as this is often brought up by the property owner. The owner has a right to be heard at the hearing, and this can include questioning the code officer(s) who issued the violation(s). Evidence cannot be solely hearsay – you will need actual evidence. To gather evidence, you can issue an inspection warrant, which gives your staff the right to enter the property. Without such a warrant, staff can only gather evidence in areas where a mail carrier is allowed.
Another option is an administrative citation, which is like a “fix-it” ticket that allows the owner to fix the problem without facing criminal charges. These are good for resolving minor violations such as trash clean-up and also for getting the attention of an owner. For serious situations, other remedies are better.
Permit revocation is also an available administrative tool. Depending upon the jurisdiction’s regulations, business licenses and conditional use permits may be revoked for property code violations. If you choose this avenue, be sure that the owner has been given proper due process.
Criminal and Civil Prosecution Tools
If your administrative tools don’t work, criminal prosecutions and civil remedies are also options.
One advantage to criminal prosecution is that it moves quickly, so results can be achieved faster. It can also be a more effective deterrent when a property owner is presented with the possibility of a misdemeanor conviction, jail time and/or up to three years of probation.
However, criminal prosecution doesn’t come without disadvantages. Administrative remedies are less expensive, and if a criminal case actually goes to trial, costs can skyrocket. An alternative to this is trying to resolve the prosecution early in the process.
Many cities prefer not to take their citizens to court. Additionally, in some jurisdictions, there can be a negative judicial attitude toward criminal prosecution.
The burden of proof is higher in criminal prosecution, as you must prove guilt beyond a reasonable doubt. While a guilty verdict may put the defendant in jail, it doesn’t fix the property.
With civil remedies, the defendant has no rights to a jury trial. This point may effect which option you choose – if the property owner is sympathetic, this could sway a jury. When public health and safety are immediate concerns, obtaining a temporary restraining order or a preliminary injunction in a civil action may be more expedient and appropriate. In civil cases, you are more likely to recover attorneys’ fees due to stronger statutes. (If your municipal code doesn’t have a provision to recover fees, we suggest you add it.)
Within civil remedies, you have several tools to use. Abatement warrants allow you to enter the property and make the needed remedies. To receive such a warrant, you must show that there are legal violations on the property that must be remedied and that the owner has failed or refused to remedy the violations. While this can sometimes be the fastest solution, a main drawback is that the city or county must front the cost for repairs and then try to collect the costs from the property owner.
Health and Safety Code receiverships can be an effective tool for residential and commercial properties that have extensive state and local law violations that endanger health and safety. The receiver is the court’s agent for enforcing its orders to take action to correct the conditions. Duties of the receivers include taking control of and managing the property, collecting rent and paying expenses, obtaining repair/rehab estimates, borrowing money to finance the costs and entering into the contracts, and relocating tenants. The costs are recouped by payment from the owner or sale of the property by court order, and the receiver’s costs are secured by “receiver’s certificates,” and can be a first priority lien on the property. Attorneys’ fees can also be recovered under receiverships.
Another civil tool is nuisance abatement actions. A public nuisance is defined as “one which affects at the same time an entire community or neighborhood, or any considerable number of persons, although the extent of the annoyance or damage inflicted upon individuals may be unequal.” This tool is best used for properties with extensive state and local law violations that are not connected to the building on the property, such as repeated criminal activity tied to the property or when the property is a hub for drug activity.
Nuisance abatement actions can also be criminally prosecuted. To do so, you will need extensive evidence of criminal activity on the property—evidence gathering is key. You will also need to file some ideas for remedies to address the problem, such as security gates, cameras, professional management, etc.
If a property is being used for drug use and drug dealing activity, you may be able to take action under the Uniform Controlled Substance Act. Under the Act, the property can be closed, pending trial, up to one year. This is a good tool to use when nothing else is effective.
Mark Easter is a partner in Best Best & Krieger’s Riverside office. He has significant experience in substandard housing and commercial building litigation. Mark’s practice emphasizes eminent domain and he has represented public agencies throughout California on a wide variety of public acquisitions, including projects for cities, counties, school districts, special districts, water districts, transportation agencies and housing authorities. He can be reached at firstname.lastname@example.org.