San Francisco Apartment Association
SFAA Magazine Archives

June 2004

Feature

Owner Move-In Eviction Update

by Jeffery P. Woo

In 2003, three cases were decided that impact the rights of an owner or her relative to move into her own building. This article updates “The ABCs of OMI” article that I wrote for the January 2003 issue of this magazine.

Background
In 1998, San Francisco voters passed Proposition G, which dramatically changed the requirement for Owner Move-In (OMI). As amended by Proposition G, a landlord is required to comply with and prove the following elements:

  • Intends to live at the property as her principal place of residence for at least 36 continuous months;
  • Seeks to evict with honest intent, in good faith and without ulterior motive;
  • If a comparable, vacant unit is available, or becomes available before the eviction, the landlord must take that unit;
  • If a noncomparable vacant unit is available, it must be offered to the tenant at an adjusted price.
  • Pays relocation expenses of $1,000 per adult tenant who has resided in the premises for one year (except in single-family homes or condominium units where the owner owns no more than one unit within the building);
  • One OMI per building is allowed, and when the OMI is completed, the unit in which the tenant was evicted becomes designated as the owner’s unit;
  • Bans evictions of protected tenants, except in single-family homes or condominium units where the owner owns no more than one unit within the building, or where a relative will move in and the relative is over the age of 60; and
  • Restricts the right to evict tenants for Relative Move-In (RMI) in the case where the owner already lives in the property or where the owner is simultaneously evicting another tenant on an OMI.
    In 2002, Supervisor Chris Daly’s amendments, known as the Daly Amendments, further amended (along with other points) the OMI rules as follows:
  • Requires the notice and proof of service is served on the Rent Board;
  • Requires the Rent Board to record the notice on the title to the property;
  • Provides that if an OMI notice is served on the tenant, the landlord will be subject to all of the restriction on an OMI eviction even if the landlord and tenant enter an agreement whereby the tenant waives any rights under the Rent Ordinance;
  • Requires that any oral threats of eviction are followed up in writing within five days; and
  • Provides that a tenant cannot waive his rights under the Rent Ordinance unless he is represented by an attorney, and a judge or retired judge approves the agreement.

Bullard v. S.F. Rent Board
In February 2003, the Court of Appeals ruled in Bullard v. San Francisco Rent Board that although a landlord is required to offer a tenant any vacant, noncomparable unit when that tenant is being evicted for OMI, the rent charged for that noncomparable unit should be the fair market value rent. Previously under Proposition G, the rent that a landlord could charge for the noncomparable unit was the same rent-controlled rent the tenant was paying, adjusted up or down based on the difference in condition, size and other amenities. Thus, if a tenant was paying $300 per month for a two-bedroom apartment with a garage in Pacific Heights, his rent might be adjusted downward to $200 if he were to move into the vacant one-bedroom apartment as a result of an OMI eviction (under the Rent Ordinance any disputes about the adjusted rent would be decided by the Rent Board). The Bullard court found that this rule violated the Costa-Hawkins Act, a state law that outlawed vacancy control (along with other points). This is a clear victory for landlords, but there has been one negative result—we now fight with tenants much more about whether a vacant unit is truly comparable or noncomparable.

Baba v. City & County of San Francisco
In April 2003, the San Francisco Superior Court in Baba v. City & County ruled that two portions of the Daly Amendments were unconstitutional: (1) the requirement that tenants must be represented by an attorney and that a judge or retired judge must sign off on any agreement in order for a tenant to waive his rights under the ordinance; and (2) the requirement that any oral threat of eviction must be followed up in writing by the landlord within five days. The city has appealed this ruling. Pending the appeal, the trial court has enjoined the city from enforcing these two rules.

Cwynar v. City & County of San Francisco
In April 2003, the San Francisco Superior Court, in Cywnar v. City & County of San Francisco, ruled that three parts of Proposition G were unconstitutional as applied to: (1) the one-owner move-in per building rule; (2) the restrictions against RMI unless the owner already lives in the building or is simultaneously doing an OMI; and (3) the entire scheme of protected tenant status as a bar to doing OMI or RMI.

At first glance, this ruling appeared to be a stunning victory for landlords. Even the San Francisco Chronicle reported that “a judge has weakened a voter-approved ordinance that makes it harder for property owners to evict tenants and move in.” However, the phrase “as applied” (see previous paragraph) appears to limit the holding of the ruling to the particular plaintiffs of that lawsuit. There now appears to be some consensus among landlord attorneys that the ruling is limited to the Cwynar plaintiffs only. This has been the stated position of the Rent Board and the City Attorney’s office.

Though the Cwynar decision is limited to the Cwynar plaintiffs, its reasoning is not. If an owner had no other viable alternative, she could also pursue her own Cwynar-type case against the city, seeking to enjoin it from enforcing one or all three of the Proposition G provisions struck down. Although this may appear complicated, much of the legal ground work has already been done by the Cwynar plaintiffs. The facts for every owner of San Francisco property cannot be substantially different than the following ones that applied to the Cwynar plaintiffs: (1) multiple owners want to move into a building; (2) an owner wants to move a relative into the building and live there herself; or (3) an owner wants to evict protected tenants.

Conclusion
These three recent case decisions have been a welcome respite from the onslaught of anti-landlord legislation that owners have faced over the past few years. However, an owner’s fundamental right to live in her own property remains highly regulated by the Rent Ordinance. The one thing that remains constant is that the advice of an experienced attorney remains critical to understanding your rights.

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. The information within this article is general in nature. Consult the advice of an attorney for any specific problem. Jeffery P. Woo is the principal of Woo & Associates. He can be reached at 415-705-6470 or woo@mypropertyrights.com. Copyright © 2004.