CHAPTER 32
FORECLOSURE PROPERTIES1
Article 1 Purpose and Intent
4.32.102 Findings and Purpose.
The City Council finds that foreclosed and abandoned residential properties pose a risk to the health, safety and welfare of the citizens of the City of Oakley. The detrimental effects from the lack of security and maintenance of foreclosed and abandoned properties include dangerous attractive nuisances, increased opportunity for crimes such as squatting, vandalism and burglaries, which discourage buyers from purchasing neighboring homes, lower property values, and cause blight.
(Sec. 1, Ordinance No. 08-13, adopted June 11, 2013; Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
Article 2 Definitions
4.32.202 Definitions.
For purposes of this chapter, certain words and phrases used in this chapter are defined as follows:
a. "Assignment of rents" means an instrument that transfers the beneficial interest under a deed of trust from one lender/entity to another.
b. "Beneficiary" means a lender or holder of a note secured by a deed of trust.
c. "Building" means any improved real property, or portion thereof, situated in the City, designed or permitted to be used for dwelling and/or business purposes and shall include the buildings and structures located on such improved real property. This includes any real property being offered for sale, trade, transfer, or exchange as residential, commercial or mixed-use whether or not it is legally permitted or zoned for such use.
d. "Beneficiary/trustee" means both the beneficiary and the trustee. When any act is required of the beneficiary/trustee by this chapter, both are responsible for performing such act and may be charged with a violation of this Code for failure to act. However, it is sufficient if it is accomplished by either one. If information is required to be provided, then both must provide such information.
e. "Days" means consecutive calendar days.
f. "Deed in lieu of foreclosure sale" means a recorded document that transfers ownership of a property from the trustor to the holder of a deed of trust upon consent of the beneficiary of the deed of trust.
g. "Deed of trust" means an instrument by which title to real estate is transferred to a third party trustee as security for a real estate loan. This type of instrument is often used in California instead of a mortgage. This definition applies to any and all subsequent deeds of trust, i.e., second trust deed, third trust deed, etc.
h. "Default" means the failure to fulfill a contractual obligation, monetary or conditional.
i. "Evidence of vacancy" means any condition that, on its own or combined with other conditions present, would lead a reasonable person to believe that the property is vacant. Such conditions include but are not limited to overgrown and/or dead vegetation, accumulation of newspapers, circulars, flyers and/or mail (except those required by federal, state or local law), past due utility notices and/or disconnected utilities, accumulation of trash, junk and/or debris, the absence of window coverings such as curtains, blinds and/or shutters, the absence of furnishings and/or personal items consistent with residential habitation, and statements by neighbors, passersby, delivery agents or government employees that the property is vacant.
j. "Foreclosure" means the process by which a property, placed as security for a real estate loan, is sold at auction to satisfy the debt if the trustor (borrower) defaults.
k. "Property manager" means a person or entity contracted by the legal owner to secure, maintain and/or market the subject property.
l. "Notice of default" means a recorded notice that a default has occurred under a deed of trust and that the beneficiary intends to proceed with a trustee’s sale.
m. "Out of area" means in excess of thirty (30) road/driving miles’ distance of the subject property.
n. "Owner of record" means the person having title to the property at any given point in time as shown on records recorded with the Contra Costa County Recorder’s Office.
o. "Property" means any unimproved or improved real property, or portion thereof, situated in the City and includes the buildings or structures located on the property regardless of condition. This includes any real property being offered for sale, trade, transfer, or exchange as "residential" whether or not it is legally permitted and/or zoned for such use.
p. "Secure" means such measures as may be directed by the Director of Planning/designee that assist in rendering the property inaccessible to unauthorized persons, including but not limited to the repairing of fences and walls, chaining/padlocking of gates, or the repair or boarding of any type of door, window, garage and/or other openings. Boarding shall be completed to a minimum of the current HUD securing standards at the time the boarding is completed or required.
q. "Trustee" means the person, firm or corporation holding a deed of trust on the property.
r. "Trustor" means the borrower under a deed of trust, who deeds property to a trustee as security for the payment of a debt.
s. "Vacant" means any building or structure that is unoccupied or occupied by unauthorized persons whether or not it is secured or boarded.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
Article 3 Standards for Neglected Properties
4.32.302 Recordation of Transfer of Loan/Deed of Trust/Assignment of Rents.
Within ten (10) days of the purchase and/or transfer of a loan/deed of trust secured by residential property, the new beneficiary/trustee shall record, with the Contra Costa County Recorder’s Office, an assignment of rents, or similar document, that lists the name of the corporation and/or individual, the mailing address and contact phone number of the new beneficiary/trustee responsible for receiving payments associated with the loan/deed of trust.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.304 Inspection, Registration and Fees.
a. Any beneficiary/trustee who holds a deed of trust on a property located within the City shall perform an inspection of the property that is the security for the deed of trust, upon default by the trustor, prior to recording a notice of default with the Contra Costa County Recorder’s Office. If the beneficiary or trustee finds the property is vacant or shows evidence of vacancy, the property is, by this chapter, deemed unoccupied and the beneficiary/trustee shall, within ten (10) days of the inspection, register the property with the City Manager, or his/her designee, on a form provided by the City.
b. If the property is occupied but remains in default it shall be inspected by the beneficiary/trustee, or his designee, at least once monthly until the trustor or other party remedies the default or the property is found to be vacant or shows evidence of vacancy. Upon finding the property to be vacant or ascertaining evidence of vacancy, the beneficiary, trustee, or his designee, shall, within ten (10) days of that inspection, register the property with the City Manager, or his/her designee, on a form provided by the City.
c. If registration is required under either subsection (a) or (b) of this section, the registration shall be on a form provided by the City and contain the name of the beneficiary/trustee (corporation or individual), the direct street/office mailing address of the beneficiary/trustee (no P.O. boxes), a direct contact name and phone number for the beneficiary/trustee and, in case of a corporation or out-of-area beneficiary/trustee, the property manager. Registration fees will not be prorated.
d. The Oakley City Council shall by resolution establish an annual registration fee which shall accompany the registration form. The fee and registration shall be valid for the calendar year, or remaining portion of the calendar year, in which the registration was initially required. Subsequent registrations and fees are due January 1 of each year and must be received no later than January 31 of the year due.
e. The requirements of this section shall apply to properties that have been the subject of a foreclosure sale where the title was transferred to the beneficiary of a deed of trust involved in the foreclosure and to any properties transferred under a deed in lieu of foreclosure/sale.
f. Properties for which registration is required under this section shall remain subject to the annual registration requirement, security, and maintenance standards of this chapter until the property is reoccupied pursuant to an instrument requiring a term of more than ninety (90) days or the property is conveyed or transferred to another person or entity for the purpose of full-time occupancy.
g. Any person, firm or corporation that has registered a property under this chapter must report any change of information contained in the registration within ten (10) days of the change.
h. Failure to register shall result in administrative fine(s) upon the trustee/beneficiary as set forth in Section 1.5.002(d).
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.306 Maintenance Requirements.
Property subject to reporting under Section 4.32.304 shall be maintained in a manner comparable to the neighborhood standard during all times in which it is subject to such reporting. At a minimum:
a. The property shall be kept free of weeds, dry bush, dead vegetation, trash, junk, debris, building materials, any accumulation of newspapers, circulars, flyers, notices, except those required by federal, state or local law, discarded personal items including but not limited to furniture, clothing, large and small appliances, printed material or any other items that give the appearance that the property is abandoned.
b. The property shall be maintained free of graffiti, tagging or similar markings by removal or painting over with an exterior grade paint that matches the color of the exterior of the structure.
c. Visible front and side yards of the property shall be landscaped and maintained to neighborhood standards at the time registration is required.
For purposes of this subsection, landscape includes, but is not limited to, grass, ground covers, bushes, shrubs, hedges, or similar plantings, decorative rock or bark or artificial turf/sod designed especially for residential installation. Landscape does not include weeds, gravel, broken concrete, asphalt, decomposed granite, plastic sheeting, mulch, indoor-outdoor carpet or any similar material.
d. For purposes of subsection (c) of this section, maintenance includes but is not limited to regular watering, irrigation, cutting, pruning and mowing of required landscapes and removal of all trimmings.
e. Pools and spas shall be kept in working order so the water remains clear and free of pollutants and debris or shall be drained and kept dry. In either case, a neglected property with a pool and/or spa must comply with the minimum safety fencing requirements of the State of California.
f. Adherence to this section does not relieve the beneficiary/trustee, property manager, or owner of record of any obligations set forth in any covenants, conditions and restrictions and/or homeowners’ association rules and regulations which may apply to the neglected property.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.308 Security Requirements.
During all times in which a property is subject to reporting under Section 4.32.304, the party responsible for providing such reports, including beneficiaries/trustees, shall secure properties subject to inspection and/or registration pursuant to this chapter, in a manner to prevent access by unauthorized persons, including but not limited to closing and locking of windows, all types of doors and garages, gates and any other openings that would allow access to the interior of the neglected property and/or structure(s).
If the responsible person is a corporation and/or out-of-area beneficiary/trustee/owner of record, a property manager shall be hired to perform weekly inspections to verify that the requirements of this chapter, and any other applicable laws, are being met.
The reporting party or property manager shall inspect the neglected property on a weekly basis to determine if the property is in compliance with the requirements of this chapter.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.310 Sign Posting Requirement.
Property subject to reporting under Section 4.32.304 shall be posted with the name and twenty-four (24) hour contact phone number of the property manager within ten (10) days following registration of the property with the City. The posting shall be no less than eighteen (18) inches by twenty-four (24) inches and shall be of a font that is legible from a distance of forty-five (45) feet and shall contain, along with the name and twenty-four (24) hour contact number, the words "THIS PROPERTY MANAGED BY" and "TO REPORT PROBLEMS OR CONCERNS CALL." The posting shall be placed on the interior of a window facing the street to the front of the neglected property so it is visible from the street, or secured to the exterior of the building/structure facing the street to the front of the neglected property so it is visible from the street or, if no such area exists, on a stake of sufficient size to support the posting in a location that is visible from the street to the front of the neglected property but not readily accessible to vandals. Exterior posting must be constructed of and printed with weather-resistant materials.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.312 Additional Authority.
In addition to any enforcement remedies established within this Code, the City Manager, or his/her designee, shall have the authority to require the beneficiary/trustee, owner of record, and/or property manager of any property affected by this chapter, to implement additional maintenance and/or security measures including, but not limited to, securing any/all window, door, garage or other openings, installing additional security lighting, increasing on-site inspection frequency, employment of an on-site security guard or other measures as may be reasonably required to prevent the decline of the property.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
Article 4 Enforcement
4.32.402 Violation.
Failure to meet the requirements set forth in this chapter shall result in a violation.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.404 Enforcement.
Violation of the requirements set forth in this chapter may be enforced in any combination of remedies provided by this Code or by law.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.406 Imposition of Fine.
In any proceeding under this chapter, the City may impose a civil fine of up to $1,000 per day for each day that the party responsible for compliance with the requirements of Article 3 of this chapter fails to maintain the property in violation of this chapter, commencing on the day following the expiration of the period to remedy the violation established in the notice of violation.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.408 Notice to Legal Owner of Violation, Imposition of Fine, and Public Hearing.
Whenever a Code Enforcement Officer of the City determines that a violation of the articles of this chapter has occurred, the Code Enforcement Officer shall have the authority to issue a notice to the owner of record, beneficiary/trustee, and/or property manager of violation, imposition of fine, and public hearing, referred to as "notice" in this chapter. The term "hearing" as used in this chapter shall mean a noticed public hearing conducted by the Oakley City Council.
a. The notice shall include a description of the conditions giving rise to the violation and the City’s intent to assess a civil fine of up to $1,000 per day if action to correct the violation is not commenced within a period of not less than fourteen (14) days and completed within a period of not less than thirty (30) days. This period shall be referred to as the "compliance period." Notwithstanding this provision, a compliance period of less than thirty (30) days to remedy the violation may be required before imposing a fine if it is determined that a specific condition on the property threatens public health, safety or welfare. In such event, the notice shall specifically state such determination and the lesser period for compliance. A Code Enforcement Officer may establish different compliance periods for different violations, subject to the minimums set forth in this section.
b. The notice shall include the date, time and place of a hearing at which time the owner of record, beneficiary/trustee and/or property manager shall be given an opportunity to contest any fine imposed. The hearing shall be set by the City Clerk as soon as practicable following expiration of the compliance period set forth in the notice.
c. The notice shall advise that fines will continue to accrue unless and until a Code Enforcement Officer inspects the property and issues a compliance certificate which the owner of record, beneficiary/trustee, and/or property manager must produce at the hearing. In the event there is a delay of more than twenty-four (24) hours between the request for a re-inspection and the re-inspection, the fine shall be tolled between the date of the request for re-inspection and the actual re-inspection. It is the responsibility of the owner of record, beneficiary/trustee, and/or property manager to arrange for such inspection and to obtain the compliance certificate. The notice shall include contact information for the inspection and for the compliance certificate.
d. The notice shall be sent by certified mail, return receipt requested, to the address provided in the deed or other instrument as specified in Government Code Section 27321.5(a), or, if none, to the return address on the deed or other instrument, and the notice shall be posted on the front of the property so it is visible from street view. The notice may also be mailed to the trustee/beneficiary or property manager at the address(es) provided on the registration form required under Section 4.32.304.
(Sec. 2, Ordinance No. 08-13, adopted June 11, 2013; Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.410 Hearing.
a. The hearing shall be set and conducted regardless of whether the hearing was requested by the owner of record, beneficiary/trustee, and/or property manager. If the owner of record, beneficiary/trustee, and/or property manager or representative of the owner of record, beneficiary/trustee, and/or property manager fails to appear for the hearing, the City Council will conduct the hearing to a conclusion and issue a decision as set forth in this chapter. Failure to appear at the hearing shall constitute a failure to exhaust administrative remedies for purposes of judicial review.
b. The City Council shall have the power to administer oaths.
c. At the hearing, the City shall present evidence in support of the notice and imposition of fine(s). The owner of record, beneficiary/trustee, and/or property manager or any individual authorized in writing to represent the owner of record, beneficiary/trustee, and/or property manager may present evidence in opposition to the notice and/or imposition of fine(s).
d. The hearing shall be conducted informally. Formal rules of evidence shall not apply, except that irrelevant and unduly repetitious evidence may be excluded in the City Council’s decision.
e. The City shall bear the burden of proof, which shall be preponderance of the evidence.
f. The City shall maintain the administrative record of the hearing.
(Sec. 2, Ordinance No. 08-13, adopted June 11, 2013; Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.412 Notice of Decision.
a. The City Attorney shall file a written decision based on the City Council’s action and direction with the City Clerk within seventy-two (72) hours of the hearing. The decision shall include a statement of the issues, findings of fact, a summary of relevant evidence and an order setting the amount of the fine. In determining the amount of the fine, the City Council shall take into consideration any timely and good faith efforts by the owner of record, beneficiary/trustee, and/or property manager to remedy the violation(s).
b. The City Clerk shall mail a notice of decision by certified mail with an attached copy of the City Council’s decision to the owner of record, beneficiary/trustee, and/or property manager at the address as set forth in Section 4.32.408(d), or a property address listed on the registration form required under Section 4.32.304, and to any other address if requested by the owner of record, beneficiary/trustee, and/or property manager.
c. The City’s notice of decision shall provide as follows:
1) Contain a statement that the decision is final and that judicial review may be sought within twenty (20) days pursuant to Government Code Section 53069.4.
2) Advise that the total of the fines charged, along with any attorney fees and collection costs, will be collected by civil remedy if not paid within forty-five (45) days of the notice of decision.
3) Notify the owner of record, beneficiary/trustee, and/or property manager that fines will continue to accumulate if the violations are not abated within five business days following the hearing and thereafter the City may abate the violation and collect such costs pursuant to Chapter 1.6.
(Sec. 2, Ordinance No. 08-13, adopted June 11, 2013; Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.414 Recovery of Fines on Property.
Any fine imposed by the City Council’s decision under this chapter shall be the personal obligation of the owner of record, beneficiary/trustee, and/or property manager and may be collected by civil remedy if not paid within forty-five (45) days of the decision. The City may also collect any attorney fees or collection costs associated with collection of the fine. It is the intent of the City Council in adopting this chapter to hold financial institutions and investors in foreclosed and/or vacant property accountable for the conditions of their property.
(Sec. 2, Ordinance No. 08-13, adopted June 11, 2013; Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.416 Cumulative Remedies.
All rights and remedies provided in this chapter are cumulative and in addition to any other rights and remedies provided by law. All procedures herein are intended to obtain the abatement of public nuisances and compliance with those provisions of the City’s Code which are declared to be public nuisances.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
4.32.418 Fines Collected by City.
Fines imposed under this chapter shall be payable to the City of Oakley and shall be directed to the City’s code enforcement budget only for nuisance abatement purposes.
(Sec. 1, Ordinance No. 12-11, adopted June 28, 2011; Sec. 1, Ordinance No. 09-10, adopted May 25, 2010)
Code reviser’s note: Ord. 09-10 adds this chapter as Chapter 4.31. This chapter has been editorially renumbered to avoid duplication.