Feature

Tenants Protected from Owner Move-In Evictions

by Steven C. Williams

In San Francisco, an owner may generally recover possession of a rent-controlled unit for use as his or her principal residence for at least 36 continuous months (an “owner move-in eviction”). However, when an owner attempts an owner move-in eviction, frequently the tenant will assert that he or she is a protected tenant because of a disability. If this assertion is made, the owner must determine whether or not to proceed with the eviction.

Under the San Francisco Rent Ordinance, the following tenants are protected from owner move-in evictions in multi-unit buildings:

A tenant who is 60 years of age or older and has been residing in the unit for 10 years or more;
A tenant who is disabled and has been residing in the unit for 10 years or more; or
A tenant who is catastrophically ill and has been residing in the unit for five years or more. (San Francisco Administrative Code §§ 37.9(i)(1)(A) and (B).)

Generally, a tenant’s age and the length of residency is readily ascertainable information. The determination regarding a tenant’s condition as catastrophically ill or disabled is more complex. For you as an owner, clarification of these terms is essential in order for you to ascertain whether to proceed with an owner move-in eviction.

The Rent Ordinance defines a tenant who is catastrophically ill as one who is disabled and who is suffering from a life-threatening illness as certified by his or her primary physician. Thus, the $64,000-dollar question becomes, who is a disabled tenant?

A disabled tenant is a person who is disabled or blind within the meaning of the federal Supplemental Security Income/California State Supplemental Program (SSI/SSP), and who is determined by SSI/SSP to qualify for that program or who satisfies such requirements through any other method of determination as approved by the Rent Board. The Rent Board’s method of determination is to leave it in the hands of a fact finder, generally a judge or jury, to decide whether a tenant is disabled within the meaning of SSI/SSP and qualifies for that program (see the Rent Board’s Rules and Regulations, §12.14(d)). Thus, a tenant is considered disabled only if the fact finder determines that the tenant (1) is disabled or blind within the meaning of SSI/SSP and (2) qualifies for SSI/SSP.

Disabled Within the Meaning of SSI/SSP
Though the Rent Ordinance provides certain guidelines to assist the fact finder in determining whether the tenant is disabled within the meaning of SSI/SSP, it expressly requires that the tenant must actually be disabled within the meaning of SSI/SSP to qualify as a protected tenant. According to the Federal Codes and the California Welfare and Institutions Code, a person is disabled within the meaning of SSI/SSP only if he or she has a physical or mental impairment that causes marked and severe functional limitations, which can be expected to cause death or last for at least 12 consecutive months. Moreover, that person must be unable to work, not even on a part-time basis.

As you can see, a tenant must be severely impaired to be disabled within the meaning of SSI/SSP. Tenants with minor impairments or those who are working are probably not disabled within the meaning of SSI/SSP. Even tenants who are not working and receiving State Disability Insurance (SDI) are probably not disabled within the meaning of SSI/SSP because the disability qualification standards are much lower for SDI.

Qualification for SSI/SSP
Not only must the tenant be disabled within the meaning of SSI/SSP, but the tenant must also qualify for SSI/SSP in order to be a protected tenant under the Rent Ordinance. A person cannot qualify for SSI/SSP unless he or she is aged 65 or older, blind or disabled and:

(1) does not have more income than permitted;
(2) does not have more resources than permitted; and
(3) files an application to receive such benefits.

Currently, a person’s income cannot exceed $1,752 per calendar year to qualify for SSI/SSP. This is a major factor in deciding whether a person qualifies (see 20 C.F.R. §416.1100). Nor can a person’s resources, including countable real or personal property as well as cash, exceed $2,000. Thus, if a tenant makes more than $1,752 or has more than $2,000 in cash or property, then that tenant cannot qualify for SSI/SSP and according to the express language of the Rent Ordinance cannot be a protected tenant.

Challenging the Tenant’s Claim of Protected Status
Within 30 days of service of an owner move-in eviction notice, the tenant must submit a statement, with supporting evidence, to the owner if the tenant claims to be protected. Failure to submit such a statement is deemed an admission that the tenant is not protected.

The owner may challenge the tenant’s claim by requesting a hearing at the Rent Board or proceeding with the eviction. The tenant has the burden of proving that he or she is protected.

Though an owner has a right to challenge a tenant’s claim in an eviction action, it can often be very expensive and time consuming. If an owner does so, then it is advisable to thoroughly utilize the “discovery process” to ascertain as much information relating to the tenant’s disability as possible. This may reveal that the tenant is in fact protected, thereby causing the owner to dismiss the action before further costs are incurred.

Moreover, the owner might find the courts reluctant to dispossess a disabled tenant, even if the tenant does not strictly qualify for SSI/SSP. For example, an owner recently challenged a tenant’s claim of protected status in an owner move-in eviction action. Though the tenant was probably disabled within the meaning of SSI/SSP, she admittedly did not qualify for SSI/SSP because her income and resources exceeded the amounts necessary to qualify. However, the court determined that the tenant was protected from an owner move-in eviction because she was disabled within the meaning of SSI/SSP.

In its decision, the court focused on the tenant’s disability. The court was not concerned that the tenant admittedly did not and could not qualify for SSI/SSP. This determination appears to be contrary to the express language of the Rent Ordinance and likely resulted from the court’s sympathy for the disabled tenant. Though this decision was not appealed, it would likely have been overturned if it had been.

An owner should consult with an attorney when weighing the pros and cons of an owner mover-in eviction in San Francisco, especially in those cases when a tenant responds with a disability claim.

The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Steven C. Williams is with the law firm of Wiegel & Fried, LLP. He can reached at 415-552-8230.