Feature
by Barbara Herzig
The legal challenge to Proposition G, Cwynar v. City and County of San Francisco, took another step forward on August 19, when judgment was entered in favor of the plaintiffs. The judgment last April was based on Judge David A. Garcia’s order that held that three provisions of Proposition G are unconstitutional takings “as applied” to the plaintiffs in the case. The three unconstitutional provisions are: (1) One-Owner-Occupancy Per Building Provision, which limits owner-occupancy evictions to only one per building, regardless of the number ofowners;(2)Family-Occupancy Provision, which permits owners to evict for occupancy by relatives only in a building where the owner resides; and (3) Tenant Protection Restriction, which prohibits a landlord from evicting for him/ herself or a relative, a tenant who is 60 years of age or older and has lived in the unit for ten years, or one who is disabled and has lived in the unit for ten years, or one who is catastrophically ill and has lived in the unit for five years.
Constitutional law is complex, and takings cases are not favored, particularly in California. Because of this, the case was brought on the theory that the law was unconstitutional as applied to the factual situations of the various plaintiffs. This means that the decision applies in other cases with fact patterns similar to those of the plaintiffs in the Cwynar case. The facts in the Cwynar case were simple—either more than one owner wanted to move into a building or an owner who did not live in a building wanted to evict a tenant for occupancy by the owner’s relative. Therefore, for practical purposes a fair statement is that, for now, the One-Owner-Occupancy Per Building Provision and the Family-Occupancy Provision are unconstitutional takings unless the city offers the property owner just compensation, which is an unlikely event. Future application of the Cwynar decision in the case of the Tenant Protection Restriction is not as clear-cut, because none of the plaintiffs in the Cwynar case sought to evict a protected tenant.
Entry of the judgment at the trial court level is far from the end of this ongoing legal challenge. The city has a record of routinely appealing the numerous cases it has lost recently in the landlord-tenant arena, so property owners should expect that the city would file an appeal. If the case is appealed, the city will probably also file a motion to stay the judgment pending the appeal. If the stay is granted, then Judge Garcia’s decision in Cwynar cannot be used in other cases. If the city does not file an appeal, does not seek a stay, or loses a motion for a stay, then Judge Garcia’s decision is the law until there is a ruling from a higher court.
We will keep SFAA members up to date on developments in the case. In the meantime, if you want to evict a tenant for owner-occupancy or occupancy for a relative, consult an attorney. While the Cwynar decision gives property owners a basis for more owner- and relative-occupancy evictions, you should also expect that tenant attorneys and activists will put the Cwynar decision to the test whenever they see the opportunity to do so.
When the industry undertook this litigation, it did so expecting just this sort of protracted and arduous battle. The tenant activists who put the legislation on the ballot have free and virtually unlimited legal resources in the form of the San Francisco City Attorney’s office. Despite this powerful opposition, the Cwynar case has so far been a vindication of the rights of owners to occupy their own property, and is one of a very small number of successful challenges regarding takings in California in recent years. The industry could not have done this without your support. This is a critical time for you to continue your support in order to insure continued success as the case moves through the appellate process.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. Barbara Herzig is a partner in the law 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 © 2003.