Legal Corner Q & A

Protected Tenants and City Codes

by Various Authors

Q. As an elderly owner (over 60 years), can I evict a “protected” tenant from one of my units in order to occupy it myself?

A. Sadly, no you cannot, unless it is a single-family home or condominium where you, as the landlord, own only one unit in the building. In these instances, the moratorium on evicting protected tenants does not apply. In multiple-unit buildings, even an elderly landlord cannot evict a protected tenant. Oddly, the tenant groups—in their infinite wisdom—drafted this legislation (Proposition G passed by the voters in 1998) that allows a landlord to evict a protected tenant for the use and occupancy of a landlord’s qualifying relative (relative move-in eviction or RMI) when the qualifying relative is 60 years or older and all units in the building are occupied by protected tenants. If you want to move in a senior-citizen relative into a two-unit building, and there is a protected tenant in the unit not occupied by the landlord, that tenancy may be terminated. However, remember that an RMI eviction requires a landlord to be living in the building or seeking to make it his/her primary residence concurrent with the RMI eviction.

Another quirk in the law is that a landlord can only do one owner move-in eviction (OMI) per building, and the subject unit becomes the designated owner’s unit for the life of the building. However, a landlord can do an unlimited number of RMIs without the assigned designation that attaches for OMIs.Remember that, subject to the exception noted above, a tenant is permanently protected from an OMI and RMI eviction in multiple-unit buildings when the tenant (a) is 60 years or older and has been residing in the unit for 10 years or more; or (b) is disabled and has been residing in the unit for 10 years or more; or (c) is catastrophically ill and has been residing in the unit for five years or more. The rent laws define, in broad and vague terms, what “disabled” and “catastrophically ill” mean.

Also, remember that a qualified relative is limited to the landlord’s grandparents, grandchildren, parents, children, brother, sister, or the landlord’s spouse or the spouses of these relatives. Both an OMI and RMI require that the landlord or relative for whom possession is sought must occupy the subject rental unit for at least 36 consecutive months. Hopefully, this law may be partially or completely stricken in the current Prop. G litigation. The SFAA’s attorney, John Mueller, is doing an excellent job working on this issue. Ironically, Oakland’s recently enacted rent ordinance mirrors Prop. G and imposes similar restrictions on landlords seeking to do OMIs and RMIs. Before doing any type of OMI or RMI, you must consult a qualified professional, as this type of eviction has extremely complex disclosure and procedural requirements. – David Wasserman

Q. The city’s recent “property tax statement” includes a section advising owners to conduct annual inspections of rental units for the purpose of “assessing” and addressing any problems with the property. I believe this action is rather unorthodox and could even be illegal. Should I listen to the city?

A. Civil Code Section 1954 limits the reasons for a landlord to enter a tenant’s premises. They are: (a) in case of emergency; (b) to make necessary or agreed upon repairs, decorations, alterations, or improvements; (c) to supply necessary or agreed upon services, or exhibit the dwelling unit to prospective or actual purchasers, mortgagees, tenants, workmen or contractors; or (d) to make an inspection at the tenant’s request prior to the tenant moving out. Except for emergencies, such inspections must occur during normal business hours unless the tenant consents to non-business hours. Under Section 1954, I believe a landlord could seek an inspection to “assess and address problems with the property” if the tenant has reported a problem, if you have a reason to suspect a problem, or if such an inspection is part of a reasonable routine of maintenance. Alternatively, the tenant may simply agree to allow the inspection for the stated purpose. If you seek an inspection of the premises, recent changes to Section 1954 require that you give 24-hour written notice to the tenant, unless it is an emergency or if the building is for sale. In cases of emergency, no notice is required. If the building is for sale and you have given a written notice of that fact within 120 days, oral notice may be given to show the tenant’s premises to prospective buyers. It’s hard to argue against regular inspections to assess the condition of your property. If, however, the tenant does not want you to inspect the premises, you must follow Section 1954 to do so. Section 1954 provides that the “landlord shall not abuse the right of access or using it to harass the tenant.” – Jeffery P. Woo

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.