California public agencies that manage right of ways sometimes engage in leases and sell parcels to private parties either in furtherance of their agency objectives or to dispose of surplus land interests. In these efforts, public agencies that own and manage right of ways encounter the wonderfully diverse and multilingual fabric of the California economy. As of 2021, 27 percent of California’s overall population was foreign born and this group made up almost 35 percent of working adults aged 25 to 54. Thus, in leasing and sales transactions, public agencies often encounter tenants and buyers for whom English is a second language. This article is intended to highlight some of the legal issues raised in such transactions and to help public agency right of way managers address common English as a second language pitfalls.
The base line rule for contracts in California is that a person’s lack of expert proficiency in the English language alone is not an excuse to get out of contracts or to claim that a contract was never formed. But if there are actions suggestive of unfair or unethical practices in the formation of a contract, such as the burying of fine print arbitration language in an English language contract given to non-English speaking workers and a demand that such documents be signed immediately without an opportunity for explanation or translation, a court may void the contract on the grounds of unconscionability, fraud or other grounds under the common law. Thus, one should avoid tactics or business exchanges that might be suggestive of coercion or unfair manipulation and it is a good practice tip to provide parties with the opportunity and time to translate or get other resources to fully comprehend commercial lease or land sale documents presented by right of way entities.
California has complex statutory provisions regarding the allowable use of public agency lands for commercial or industrial uses and the disposal of land, both as surplus land and exempt surplus land. See Gov. Code § 54220, et seq.
Cesar Alesi Perez, Marisol Cuellar Mejia, and Hans Johnson, Immigrants in California, at 1 (Public Policy Institute of California, January 2023) (available at https://www.ppic.org/publication/immigrants-in-california/, last visited on July 2, 2023)
This article is intended to address English as a second language issues in land disposals—not in acquisitions and other contexts—and thus will not be addressing language requirements for condemnations and residential and commercial relocations of persons and businesses in public agency land acquisitions and other contexts.
See, e.g., Randas v. YMCA of Metropolitan Los Angeles (1993) 17 Cal. App. 4th 158, 160 (“Although plaintiff was literate in Greek but not English, she made no claim of fraud or overreaching, nor did she claim that the YMCA had reason to suspect she did not or could not read the release she had signed. Ordinarily, one who accepts or signs an instrument, which on its face is a contract, is deemed to assent to all its terms, and cannot escape liability on the ground that he or she cannot read; the party should have it read or explained to him or her.”)
Samaniego v. Empire Today, LLC (2012) 205 Cal. App. 4th 1138, 1142.
In addition, California has by a body of statutes commonly known as the California Translation Act added special contract translation and language rules for certain types of transactions and business activities. For example, the California Translation Act requires business people to create a translation of the terms and conditions of an agreement into Spanish, Chinese, Tagalog, Vietnamese, or Korean, if tradespersons or businesses negotiate that agreement in one of those languages. Property owners are also subject to the translation requirement in transactions that involve a lease, sublease, rental contract or agreement, or other term of tenancy contract or agreement, if that transaction is for a time period of longer than one month and covers a dwelling, an apartment, or mobile home, or other improvement normally occupied by people as a residence. Thus, depending upon the context and the type of transaction, a residential lease or other type of tenancy contract could conceivably trigger a translation requirement.
In sum, right of way entities in California should be mindful of language barriers and special issues in leasing and sale transactions. When required by law, a California contract should be translated or negotiated in the counterparty’s language. A bilingual or multilingual real estate agent may be helpful in this regard. In recent years, the real estate brokerage industry has recognized both the economic advantages and legal benefits of a multilingual workforce when it comes to real estate transactions and the fulfillment of fiduciary obligations to buyer and seller clients. Alternatively, the provision of fair business time and opportunity for counterparties to translate or otherwise have professionals explain to them the terms of English language documents may be helpful.
|The author Bryan Otake is a longtime infrastructure development and right of way lawyer with a strong background in the construction, permitting and operation of large infrastructure and commercial projects. He has a strong background in contracting, permitting and environmental regulation and advises both boards of directors and client executive management on matters ranging from development agreements, public-private partnerships, interagency cooperation and joint exercise of powers agreements, and vendor and service contracts.
Civil Code § 1632.
Civil Code § 1632(b).