Feature

60-Day Notices Now Required for Most Evictions and Other Changes to Landlord-Tenant Law

by Barbara Herzig

In August, 2002, Governor Gray Davis signed SB 1403 (Kuehl). SB 1403 affects landlord-tenant law in three ways that are important to landlords in San Francisco. First, SB1403 extends the notice period for terminating most tenancies from 30 to 60 days. Second, SB 1403 requires written notice to a tenant before entering the tenant’s unit. Third, SB1403 extends price restrictions on renting units previously withdrawn from the rental market under the Ellis Act.

Requirement for 60-Day Notice to Quit
In order to understand the application of SB 1403 to San Francisco’s Rent Ordinance, we need to take a brief look at state law as it pertains to notices. Section 1946 of the Civil Code gives a landlord the right to terminate a month-to-month tenancy after giving a tenant a 30-Day Notice to Quit. Section 1161 of the California Code of Civil Procedure allows a landlord to terminate a tenancy after giving a tenant a Three-Day Notice to Quit if a tenant fails to pay rent or fails to perform one of the terms of his or her lease.

SB 1403 increases the notice period required to terminate a tenancy under Civil Code Section 1946 from 30 to 60 days if the tenant has resided in his or her unit for one year or longer. Three-Day Notices to Pay Rent or Quit, or to Perform an Obligation of the Rental Agreement or Quit, have not been changed by SB 1403. So you can still evict a tenant for nonpayment of rent after a three-day notice.

Applying SB 1403 to San Francisco is complicated by the requirement under the San Francisco Rent Ordinance that a landlord use one of the 14 “just causes” enumerated in the Ordinance in order to evict a tenant. Most of these just causes have required a 30-day notice to quit. Beginning January 1, 2003, these just causes will require a 60-day notice. On page 18 is a chart that lists, as of January 1,2003, each of the just causes for eviction under the San Francisco Rent Ordinance and the required notice period to terminate a tenancy under that just cause.

In some cases, a landlord may choose to terminate a tenancy either by giving a three-day notice or a 60-day notice. The just causes where a landlord may be able to give either a three-day notice or a 60-day notice include the failure to perform a lawful obligation of a tenancy and causing substantial damage to a rental unit. The risk of using a three-day notice rather than a 60-day notice is that a tenant can delay the eviction process by arguing, legally, that the landlord gave the wrong notice. Whether to use a three-day or a 60-day notice is a decision you should make based on the facts of each case and with the advice of your legal counsel.

There are two situations in which a 30-day notice under CC1946 can still be used. First, if a tenant has lived in his or her unit for less than a year, a 30-day notice can be used. Second, a 30-day notice can be used by a property owner who is in escrow to sell a single-family residence or condominium. In San Francisco, however, an owner cannot evict a tenant just because he or she is selling the unit in which the tenant lives, so this exception to the 60-day notice requirement cannot be used.

In summary then, beginning January 1, 2003, be prepared to give a tenant a 60-Day Notice to Quit unless the tenant has not paid rent. In cases of nonpayment, a three-day notice is still the law. Keep in mind, though, that since evictions for anything other than nonpayment of rent are tricky in San Francisco, you should consult an attorney before starting any eviction proceeding.

Written Notice of Entry Now Required
As a general rule, beginning January 1, 2003, a resident must be provided with at least 24-hours written notice before entry is made to his or her unit. The written notice may be provided in one of the following ways: (1) personal delivery, (2) leaving a copy with a person of suitable age, or (3) leaving a copy on, near or under the usual entry door of the premises. If the written notice is mailed, it must be mailed at least six days prior to the entry.

There are three exceptions to the requirement for written notice of entry. First, written notice is not required in an emergency. Second, written notice is not required if the resident has abandoned or surrendered the premises. Third, written notice is not required if the reason for the entry is to show the unit to prospective or actual purchasers as long as the owner has notified the resident in writing within 120 days of the verbal notice that the property is for sale and that the resident may be contacted

Normally for the purpose of showing the unit, a 24-hour oral notice, either in person or by telephone, is presumed to be reasonable notice. At the time of entry, the owner or agent must leave written evidence of entry. Also, a resident can allow entry without a prior written notice if he or she wishes.

The rule that entry must be made during normal business hours, except in case of emergency or with the resident’s consent, remains in place.

“Vacancy Control” of Ellis Act Rental Units
Current law imposes a period of “vacancy control” on units withdrawn from rent or lease under the Ellis Act. If an owner re-lets an “Ellised” unit within two years of the date the property was withdrawn, the allowable rent is limited to the lawful rent in effect at the time the notice of intent to withdraw the accommodations was filed, plus annual adjustments allowable under the Rent Ordinance.

SB 1403 extends the two-year “vacancy control” period to five years and applies it to all tenancies started during the five-year period, regardless of whether or not the previous tenant voluntarily vacated the unit. In addition, SB 1403 extends the “vacancy control” provision to properties where a landlord files a notice of intent to withdraw under the Ellis Act but does not actually withdraw the unit. In that case, the five-year “vacancy control” period begins on the date the notice to withdraw has been filed.

Remember, an owner who re-rents within the two-year period from the date the property is withdrawn from the rental market is liable to the displaced tenant for actual and exemplary damages. This rule was not changed by SB 1403.

The chart found to the right is for informational purposes only and gives the general rule for notice of eviction under each just cause. In some situations, depending on the facts, your attorney may consider using a different notice period. If you are considering an eviction, make sure you completely read the relevant sections of the Rent Ordinance. The ordinance contains details of the conditions for many of the just causes, which are only briefly noted to the right.

Many thanks to my colleague Clifford Fried of Wiegel & Fried, LLP for his help with this article.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the SF Apartment Magazine. Barbara Herzig is a partner in the firm of Herzig & Berlese. She specializes in transactional work involving residential real estate in San Francisco, including condominium conversions and tenancy-in-common agreements. © Copyright 2002.