California public agencies that manage right-of-ways sometimes lease or sell parcels to private parties in order to further agency objectives or dispose of surplus land interests. 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. In these efforts, public agencies that own and manage right of ways encounter the 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. 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) 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 property managers address common English as a second language pitfalls.
California law has different contract translation requirements for business and real estate transactions, depending upon their type and nature. Under a body of laws commonly known as the California Translation Act, owners and operators of residential property must translate a lease agreement, sublease, rental contract, or other agreement into Spanish, Chinese, Tagalog, Vietnamese, or Korean, if that contract was negotiated primarily in one of those languages and the contract covers a house, an apartment, or mobile home, or other improvement normally occupied by people as a residence.Civil Code, § 1632(b). Thus, depending upon the context and the type of transaction, a residential lease or other type of residential tenancy contract could conceivably trigger a translation requirement.
But outside of the residential context, California law for the most part does not have a universal contract translation requirement for the lease or sale of non-residential lands. Instead, the baseline rule for contracts in California is that a person’s lack of expert proficiency in English alone is not an excuse to get out of contracts or to claim that a contract was never formed.
1. 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.
2. 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)
3. 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.
4. Civil Code, § 1632(b).
5. 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.”)
6. Samaniego v. Empire Today, LLC (2012) 205 Cal. App. 4th 1138, 1142.
But if there are actions suggestive of unfair or unethical practices in the formation of a contract, a court may void a written contract on the grounds of unconscionability, fraud, or other grounds under the common law.
In sum, public agencies conducting right-of-way activities in California should be mindful of language barriers and special issues in leasing and sale transactions. When dealing with counterparties with limited English proficiency, one should review the type of real estate transaction, and if meets the definition of residential property, provide written translations of residential leasing agreements if they were negotiated primarily in Spanish, Chinese, Tagalog, Vietnamese, or Korean.
Furthermore, even in non-residential leasing transactions, a good practice is to provide prospective buyers and tenants with reasonable time and space to secure their own commercial contract language translations or to hire matching language professionals to help them understand a proposed lease or sale document. In this regard, a bilingual or multilingual real estate agent may be helpful. In recent years, the real estate brokerage industry has recognized both the economic advantages and legal benefits of a multilingual workforce in real estate transactions and the fulfillment of fiduciary obligations to their clients.
Likewise, multi-lingual transactions reinforce the importance and strength of a diverse workforce in the right-of-way industry, with right-of-way agents who can communicate with multilingual buyers and tenants and their representatives. A multilingual real estate broker or right-of-way officer may resolve many communications and contracting issues.
Kalysha Murphey, SR/WA is an Acquisition & Disposition Team Manager at the Metropolitan Water District of Southern California. She has acquired right of way for several infrastructure projects from various agencies, led relocation projects, engaged in the condemnation process, and entered into lease/license agreements on agency-owned property.
Bryan Otake is a Senior Deputy General Counsel at the Metropolitan Water District of Southern California. He is a longtime infrastructure development and right-of-way lawyer with a strong background in land acquisitions, construction, permitting, and the operation of large infrastructure and commercial projects.