As a San Franicsco buyers and sellers, or Realtors assisting clients transferring ownership of tenant occupied property, you need to know a lot about the eviction laws of San Francisco. Many of sellers will want to have, or deliver, vacant units. And many of buyers will want an empty unit to move into. This article discusses recovering possession of tenant-occupied units with an emphasis on owner move-in (OMI) evictions. The purpose of the article is to alert you to general issues and problems. For specific situations and problems, consult with an attorney who specializes in San Francisco rent control matters.
Here are the nuts and bolts of owner move-in (OMI) evictions. Just Cause to Owner Move-in San Francisco has eviction controls. This means that an owner cannot ask a tenant to vacate unless just cause exists to evict. There are some exceptions for new construction and certain types of tenancies. San Francisco's Rent Ordinance has 15 just causes or grounds for eviction. One ground is for when a landlord wishes to use and occupy a unit as his or her principal residence, for at least 36 continuous months. A landlord can also recover possession of a unit a grandparent, grandchild, parent, brother or sister, or the landlord's spouse or the spouses of such relations, as their principal residency for at least 36 months, in the same building where the landlord resides or in a building where the landlord is simultaneously seeking possession for owner move-in purposes. The term spouse includes domestic partners.
An owner must have at least a 25% interest in the property before starting an OMI eviction. For owners who took title before February 21, 1991, a 10% interest of record will suffice. And in all cases, two individuals registered as domestic partners can combine their ownership interests to meet the required percentage. Of course, if a comparable unit is already vacant and available, a landlord cannot evict a tenant. If a comparable unit becomes vacant and available before an eviction is completed, the landlord must rescind the notice. If a non-comparable unit becomes available, the landlord must offer the unit to the tenant at a rent sent by the landlord. Timing the service of a notice to avoid moving into a comparable unit or offering a tenant a replacement unit is bad faith. It is also bad faith if the landlord or relative for whom the tenant was evicted does not move into the unit within 3 months and occupy the unit as that person's principal residence for a minimum of 36 continuous months.
Once a landlord recovers possession of a unit by evicting a tenant for OMI purposes, that unit becomes the OMI unit and no other current or future owner may evict a tenant from any other unit for OMI purposes. In other words, only one OMI unit per building. However, a landlord may petition the Rent Board to occupy another unit if a disability or other similar hardship makes another unit desirable. Tenant Rights in OMI Evictions If a landlord who evicted a tenant for OMI purposes moves out and re-rents within 36 months, the landlord may only charge a rent not greater than that which would have been the rent had the original tenant not been evicted. Some rent increases are permitted. The evicted tenant must first be offered the right to rent their old unit. In an effort help tenants determine if a landlord should be moving into some other property instead, the law requires landlords to disclose quite a bit of information about other property owned by them and the other owners and the relative for whom the eviction is being pursued. A description of all residential properties owned, anywhere in the world, must be provided to the tenant and Rent Board.
Along with a proper eviction notice, a landlord must notify the tenant being evicted of their rights under the OMI law and their right to receive relocation costs. The current amount of relocation costs is $5,101 per tenant with a maximum of $15,304 per unit. In addition, disabled tenants or tenants 60 years or older, or households with minor children, are entitled to an additional $3,401. These amounts change in March of each year depending on changes in the consumer price index. Since this artcile is not updated each year, always check for current relocation payment amounts. Protected Tenants A controversial provision of the OMI law prohibits the eviction of tenants who are 60 years or older, or disabled, and have resided in their unit for 10 or more years. Likewise, the eviction of catastrophically ill tenants who have lived in their unit for 5 or more years is prohibited. However, the enforceability of these laws are questionable and several constitutional attacks on these provisions have been sucessful.
Where a protected tenant occupies a single family home or a condo unit, a landlord may recover possession. Likewise, a landlord may recover a unit for a relative over the age of 60 where each unit in the building is occupied by a protected tenant. At any time, a landlord may request a statement from tenant as to whether they are protected from OMI evictions. The request, which must be personally served, requires the tenant to repond within 30 days. A copy of the request must be served on the Rent Board within 10 days of service on the tenant. The failure of a tenant to respond within 30 days is an admission that the tenant is not protected. A landlord can challenge a tenant's claim of protected status either at the Rent Board or in an eviction lawsuit. Evictions During School Year A recent addition to the OMI law is a provision that prohibits evictions during the school year where there is a minor living in the unit and the tenant has resided in the unit for 12 months or more.
As with protected tenants, landlords may request a statement of from a tenant as to whether they are protected from eviction due to a minor residing at the premises. Old request for information forms should be updated to ask about this new protected class of tenants. The new law doesn't apply when there is only one rental unit in the building owned by the landlord or where the owner who will move into the unit has a child under the age of 18 who will also reside in the unit. Disclosures to Tenants Before a building may be sold, a seller must disclose the to all tenants that: - tenants cannot be evicted because the property is being sold - rents cannot be increased because the property is being sold - rental agreements cannot be changed because the property is being sold - sellers have a right to show rental units during normal business hours - tenants aren't required to sign estoppel certificates unless their lease provides otherwise - advice is available at the Rent Board Thirty days after the close of escrow, a buyer must disclose to all tenants that: - tenants cannot be evicted because the property is being sold - rents cannot be increased because the property is being sold - rental agreements cannot be changed because the property is being sold - any tenants, sub-tenants or roommates who are lawful occupants will remain so - housing services cannot be changed or severed
Alternatively, a landlord is permitted to buy out a tenancy and avoid the eviction process altogether. If you decide to pursue this option, only do so under the guidance of an attorney experienced with OMI evictions and tenant buyouts.
Copyright 2010 by Clifford E. Fried. All Rights Reserved. The information provided in this article is general in nature. Consult with an attorney for any particular situation or set of facts. Clifford E. Fried has handled thousands of owner move in evictions and buyouts in San Francisco. You may reach him at 415-421-0100 or [email protected]