Legal Corner Q & A

Residency and Eviction Requirements

by Various Authors

Q. We have a very long-term tenant who spends the majority of her time living in a jointly owned home in Marin. What evidence do we need to demonstrate to the San Francisco Rent Board that (1) our apartment unit is not her primary residence under the new principal place of residency rules and (2) to bring her rent up to market value? What means do you recommend that we use to obtain this evidence?”

A. Under Rule 1.21 of the Rent Board’s Rules & Regulations, a tenant in occupancy, specifically someone whose rent is controlled by the Rent Ordinance, is a person who “actually resides” in a rental unit with the knowledge and consent of the landlord. Rule 1.21 states that the occupancy does not require the individual to be physically present in the unit at all times or continuously, but the unit must be the tenant’s “usual place of return.” The rule states quite clearly that the Rent Board must consider the totality of the circumstances. Six such circumstances are listed for consideration, though they are not exclusive. The list includes whether the rental unit’s address appears on the motor vehicle registration, driver’s license, voter registration, or with any public agency, including taxing authorities; whether utility bills are billed to and paid by the individual at the subject premises; whether all the individual’s personal possessions are in the subject premises; whether a homeowner’s tax exemption has been filed by the individual for another property; whether the individual normally returns to the subject premises after being away for such temporary absences as work, military service, hospitalization or vacation; and credible testimony from witnesses pertaining to whether the individual occupies the subject premises as his/her principal place of residence.

In your situation, even though the tenant actually resides in Marin, she may have been careful to keep a paper trail connecting her with the San Francisco rental unit. Perhaps the most important piece of evidence for you to locate would be a homeowner’s tax exemption in her name for the Marin property. This will demonstrate that the tenant actually claims the Marin property as her home. However, this evidence may not be conclusive. Also, legal restrictions may prevent you from obtaining her driver’s license and motor vehicle registration information directly from the DMV. You should check with both the San Francisco Registrar of Voters and the Marin Registrar of Voters in order to determine where she is registered to vote. All of these little individual pieces of evidence may help. There may be others, such as whether a child is enrolled in a Marin school. If you can’t get enough evidence through your own efforts, you may want to hire a private investigator to do some digging for you, including interviews with the Marin neighbors, or even surveillance, though the latter can be very expensive. Last, you may want to file a lawsuit for Declaratory Relief, asking the court to determine the residency status of the tenant. Litigation in court gives you the advantage of compulsory discovery of the tenant’s documents and other relevant evidence that you cannot compel in a Rent Board hearing. The tenant may even throw in the towel when faced with the prospect of such litigation. At the very least you will be able to develop the necessary evidence in order for you to proceed further, either in court or at the Rent Board.

The chances of your ultimate success may very well depend on two factors. One may be attributed to your tenant’s savvy skill and craftiness in maintaining the proper paper trail to sustain the fiction that your rental unit is her principal place of residence. The other factor may be your own willingness to make the necessary investment, both in investigative costs and legal costs and fees, to stop the fiction in its tracks.
– Saul M. Ferster

Q. What is a “nuisance” eviction, and what kind of evidence do I need before serving a Notice to Quit for nuisance?

A. The term “nuisance” is defined as conduct that is offensive to other residents and is illegal and/or harmful to the rental unit. Nuisance conduct ranges from drug dealing to the destruction of property. A loud party can even be a nuisance. Both the local Rent Ordinance and state law allow a property owner to evict a tenant for nuisance. For example, the local rent law permits an eviction when the “tenant is committing or permitting to exist a nuisance in, or is causing substantial damage to, the rental unit, or is creating a substantial interference with the comfort, safety or enjoyment of the landlord or tenants in the building,” or the “tenant is using or permitting a rental unit to be used for any illegal purpose.” The question for you is what type of evidence is required before serving a termination notice for a nuisance. There is no clear-cut answer, but a landlord should usually have a paper trail (for example, letters) warning the tenant to desist from the nuisance-like conduct. The landlord should also provide sufficient proof that the tenant targeted for eviction has in fact committed the nuisance. However, some conduct such as drug dealing or substantial property damage does not warrant warning letters. In the case of drug dealing, the landlord must evict or face the wrath of the city attorney or other law enforcement agencies that will ultimately hold the landlord responsible.

Determining whether there is sufficient cause to evict for nuisance is done on a case-by-case basis. The following is a sampling of recent cases undertaken by my office. A landlord took videotapes of a tenant urinating in the common area laundry room, and this justified an eviction. Yet, in another case, a landlord was unable to evict a tenant for drug dealing, because the common area camera did not capture the offending tenant’s face on film although it did record the drug transactions. Another owner terminated a tenancy when the tenant unilaterally tore down an interior wall to combine his living room and bedroom. In another situation, a tenancy was terminated after the occupants held a series of late-night parties that involved repeated warnings by both the management and the police to quit their offensive conduct. In another case, a tenant successfully defended an eviction when the owner sought to terminate the tenancy, because the tenant’s teenage son allegedly had gang members in the apartment. Last, another owner is seeking to evict, because the offending male tenant approaches tenants while exposing himself and then propositions them for casual sex.

Police reports provide great evidence for nuisance cases. Also, the corroboration of other residents in the building (or neighbors of adjacent properties) provides another source of evidence. You need to demonstrate to the court that the conduct is so serious that a failure to evict will cause the landlord and other building occupants to live under unacceptable and unreasonable conditions.

You must compile all of your evidence before you serve the eviction notice. A nuisance eviction notice, by statute, demands automatic termination and does not allow the tenant the right to cure. However, some attorneys in San Francisco advise landlords to state the notice in the alternative (cure or quit) for certain types of nuisance cases. Deciding which type of notice to serve depends on the offending conduct; for example, drug dealing would justify an automatic termination, whereas a loud party or piling of trash outside the doorway may call for a chance to cure. Some attorneys advise serving a cure or quit nuisance notice even when the tenant cannot cure because such notices may have better jury appeal. Remember that the more offensive the act, the better your chances are to evict. As always, consult with a qualified attorney before you serve a nuisance notice.
– David Wasserman

Q. We recently bought a two-unit building. The upper unit is vacant, and a tenant occupies the lower unit. The lower unit is in much better condition and has better amenities. What are our rights under the Rent Ordinance if we want to move into the lower unit?

A. This is a question commonly asked by property owners in San Francisco, for there are a vast number of two-and three-unit buildings in the city. Your instincts are good, since logic dictates that with a vacant unit in the building there might be legal restrictions on your ability to evict tenants from the occupied unit. The short answer to the question is that the San Francisco Rent Ordinance does not preclude you from evicting the tenant and occupying the lower unit. However, as is typically the case in matters implicating the Rent Ordinance, the answer has several conditions and qualifications.

First, you must be an owner of record with at least a 25 percent interest in the property or, if the owners are registered as Domestic Partners as defined under the San Francisco Administrative Code, your combined ownership of record must be at least 25 percent. Second, you can recover possession of the lower unit, but only if you do so in good faith, without ulterior reasons and with honest intent to occupy that unit as your principal residence for a period of at least 36 continuous months. The terms “good faith,” “without ulterior reasons” and “with honest intent” have been the subject of much litigation. Suffice it to say, your motive and conduct in evicting the lower-unit tenants will be measured against standards of reasonableness, sincerity and integrity. Further, the 36-month requirement should not be read to mean that you must actually occupy the premises for 36 continuous months once you recover possession. Rather, at the time you seek to recover possession, your intent must be to occupy the premises as your principal residence for the requisite period. However, failure to occupy for the 36-month requirement may result in an illegal eviction case being brought against you.

Third, the Rent Ordinance places restrictions on evictions in buildings where comparable units are available to a landlord seeking to occupy a unit as his or her principal residence. The Rent Ordinance provides that if a “comparable unit” owned by the landlord is already vacant and available, or becomes vacant and available before the recovery of possession of the unit, the landlord may not recover possession of the unit presently occupied by a tenant. The question becomes, of course, what constitutes a “comparable unit?” You should seek the advice of counsel before proceeding, but a useful rule of thumb is whether the units in question share the same number of bedrooms, bathrooms, substantially similar square footage and amenities such as parking. If they do not, the units are probably not comparable. In addition, remember that a unit is probably not “available” if it is in a condition that renders it untenantable under applicable law.

Fourth, if the upper unit in your building is non comparable, the Rent Ordinance requires that you offer that unit to the tenant at a rent based on the rent the tenant is currently paying, with an upward or downward adjustment allowed based on the condition, size and other amenities of the replacement unit. However, in a recent Court of Appeal decision, the court held that this provision of the Rent Ordinance is preempted by state law, which generally allows an owner of residential real property to establish the initial rental rate for a unit at the commencement of a tenancy. Thus, the current state of the law does not require you to offer the upper unit to the tenants at any particular rent. Good practice would dictate though that you offer the upper unit to the tenants at a reasonable rent, so long as they are otherwise acceptable tenants to you.
– Kenneth Vierra, Jr.

The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem.

Saul M. Ferster can be reached at (415) 863-2678. David Wasserman is with Wasserman & Taxman, (415) 567-9600. Kenneth Vierra, Jr. is with Lynch, Gilardi & Grummer, (415) 397-2800.