July 2003
A number of members have inquired about a recent ruling in the case of Cwynar v. CCSF, a case challenging the legality of Proposition G. While the order gives property owners a substantial victory, the order does not throw out Prop. G.
Proposition G, passed by the voters in November, 1998, was intended to prevent owners from occupying their own properties. Prop. G limited evictions for owner-occupancy to one unit per building, prohibited owners from obtaining possession of a unit for a relative unless the owner lived in the building, and prevented owners from obtaining possession of a unit if the unit was occupied by a protected tenant—a tenant who was 60 years of age or older and had occupied the unit for 10 years, a tenant who was disabled and had lived in the unit for 10 years, or a tenant who was catastrophically ill and had lived in the unit for five years. The San Francisco Apartment Association, joining with the San Francisco Association of Realtors and other organizations and individual plaintiffs in the Cwynar case, challenged Prop. G as an unconstitutional taking.
The order recently issued by San Francisco Superior Court Judge David A. Garcia finds that Prop. G is an unconstitutional taking of property “as applied” to the plaintiffs in the Cwynar case. Although it is a positive step forward in this procedurally complex case, the order in not a final decision. The city has already filed a motion for reconsideration of the decision. If Judge Garcia denies the city's motion, there are still several procedural issues that must be resolved before a judgment can be entered. And, if a final judgment is entered finding that Prop. G is an unconstitutional taking, it is likely that the city will appeal.
We will keep you up to date on the progress of this case. In the meantime, you should continue to consult an attorney before taking any action to evict a tenant (See related articles by Clifford Fried and Lawrence Scancerelli).
—Barbara Herzig
Tenants Union Seeks Elected Rent Board
A major election battle is in the works if Supervisor Daly is successful in placing a Charter Amendment on November's ballot for the election of the San Francisco Rent Board's Commissioners. The amendment surfaced after the recent Tenants Union convention identified the election of Rent Board Commissioners as a major concern for their members.
Currently appointed by the Mayor, the Tenants Union claim the current commissioners are not representative of the overall tenant population of San Francisco. (San Francisco's Rent Board is currently comprised of two landlord commissioners, two tenant commissioners and a neutral who has to be a homeowner.) Daly will need the support of five of his fellow Supervisors in order for the charter amendment to go forward. And just to make things even funnier, it also includes a “rent freeze.” For a revealing look into the schizophrenic nature of Berkeley's or Santa Monica's elected rent boards, please visit their website.
The San Francisco Rent Board recently published their annual report on the number of eviction notices filed with their department. During the period from March 2002 through February 2003, a total of 1,643 various evictions notices were filed with the Rent Board. This figure includes 93 notices given due to failure to pay rent (these are not required to be filed with the department).
The number of notices filed with the department this year represents a 22 percent decrease over the prior year's filings (2,101). The largest declines were in owner-occupancy evictions, 516, or a 29 percent decrease; nuisance declined by 10 percent to 251; and eviction notices for breach declined by nearly 40 percent to 231. The only increases were in temporary capital improvement evictions which increased from 44 to 68, or a 26 percent increase; and Ellis Act evictions, from 148 buildings to 187, for a 26 percent increase for the period.
| Reason | Count |
| Nonpayment of Rent | 93 |
| Habitual Late Payment of Rent | 75 |
| Breach of Rental Agreement | 231 |
| Committing a Nuisance | 251 |
| Illegal Use of Rental Unit | 21 |
| Failure to Renew Agreement | 0 |
| Failure to Permit Landlord Access | 10 |
| Unapproved Sub-Tenant | 10 |
| Owner or Relative Move-in | 516 |
| Demolish or Remove From Housing Use | 67 |
| Capital Improvement Work | 68 |
| Substantial Rehabilitation | 1 |
| Ellis (Withdrawal of Unit) | 187 |
| Lead Remediation | 0 |
| Roommate Eviction | 82 |
| Other or No Reason Given | 22 |
| Total Eviction Notices | 1,643 |
The number of notices were filed this year continues the decline in the number of notices filed with the department. In 2002 there were 2,101 notices filed; 2,675 notices filed in 2001; and 2,641 filed in 2000. Just-cause reasons experiencing the greatest fluctuation since last year are as follows:
| Just-Cause Reason | 2001-02 | 2002-03 | % +/– |
| Owner-Occupied | 726 | 516 | - 29% |
| Demolish/Remove Unit | 113 | 67 | - 41% |
| Capital Improvement (temp) | 44 | 68 | + 55% |
| Ellis Eviction | 148 | 187 | + 26% |
The complete report can be found online.