Legal Corner Q & A
by Various Authors
Q. One of our units needs the kitchen and bathroom completely redone. Can we require the tenant to vacate for a short period of time while we perform the work? Do we have an obligation to pay for relocation and moving expenses?
A. The San Francisco Rent Ordinance permits a landlord to displace a tenant temporarily from a rental unit in order to carry out capital improvements or rehabilitation work on the rental unit. When determining whether to displace a tenant under these circumstances, the landlord should consider the following factors: work must render the rental unit unhealthy, unsafe and/or uninhabitable; all necessary permits to carry out the work must be obtained by the landlord before giving the tenant a notice to vacate; payment must be paid to each tenant of the rental unit for the actual cost of each tenant’s moving and relocation expenses, up to $1,000; required time for the tenant to vacate must not exceed three months, unless the time is extended by the San Francisco Rent Board upon petition by the landlord; and the tenant has the right to reoccupy the rental unit as soon as the work is completed.
In the event that the work does not require the tenant to vacate, the landlord may not have grounds to displace the tenant, but instead may have to do the work with the tenant present in the rental unit. The law permits the landlord to do this with proper notice given to the tenant. However, the landlord should be aware that the tenant might claim that the work creates a disturbance, thereby entitling the tenant to receive a rent reduction for the period of the disturbance. In such a case, the Rent Board may award a temporary rent reduction if the tenant petitions the board and can show that the disturbance substantially decreases the tenant’s housing services.
– Steven C. Williams
Q.What is the status of the Prop. G. lawsuit?
A. The Proposition G lawsuit, entitled Keli Cwynar, et al v. City and County of San Francisco, et al., (Cwynar) was the industry-funded legal challenge to 1998’s Proposition G. The proposition made permanent a number of protections from owner move-in evictions for long-term tenants who are either seniors, disabled or catastrophically ill. Prop. G also added several other restrictions on owners seeking to owner occupy property, as well as restrictions on an owner’s right to evict for occupancy by qualified family members.
The Cwynar action was initially filed on March 16, 1999, several months after the effective date of Prop. G. Initially, the San Francisco Superior Court granted the city’s legal challenge to the plaintiff’s claims, ruling that the Cwynar plaintiffs could not state a Fifth Amendment takings challenge to the Rent Ordinance. The plaintiffs appealed, and the Court of Appeal decided the appeal in a published decision entitled Cwynar v. City and County of San Francisco. The Court of Appeal ruled that the Cwynar plaintiffs’ complaint stated a proper claim for a regulatory taking of property. The Court of Appeal further ruled that the trial court had to provide the plaintiffs an opportunity to amend the complaint to state a claim for a per se physical taking.
The matter returned to the trial court and, on April 30, 2003, the San Francisco Superior Court granted summary judgment to the Cwynar plaintiffs, ruling that the owner move-in restrictions set forth in Prop. G were unconstitutional as applied to the named Cwynar plaintiffs. While certainly a victory for property rights and a victory for the specific plaintiffs in the case, the court did not rule that Prop. G was facially unconstitutional. In other words, while the court did rule that the various owner move-in restrictions would not be applied to the actual Cwynar plaintiffs, the court did not rule that the Prop. G restrictions were unconstitutional in all circumstances. The court entered judgment in favor of the plaintiffs on August 19, 2003. The City and County of San Francisco did not appeal the judgment, so the matter is now final.
While the Cwynar litigation represents an important legal advance for property owners and has provided a blueprint for future legal challenges to Prop. G.’s owner move-in restrictions, the Cwynar decision did not invalidate them in terms of any other “non-Cwynar” owners. In short, with the exception of its application to the named plaintiffs in the case, Prop. G is still legally alive and well, which explains why substantial numbers of residential rental units in the city are presently being withdrawn from rental use under the state Ellis act.
– Jak Marquez
Q. What happens when an original tenant wants to remove a subtenant from the unit?
A. Perhaps one of the cruelest ironies of San Francisco’s rent control is that one of its most pernicious provisions is inflicted upon tenants, specifically master tenants. The Rent Ordinance permits a landlord who resides in the same rental unit with his tenant, a roommate, to evict the tenant without the just cause otherwise required. This makes sense, because no one should be compelled to live with someone he/she can’t tolerate. A few years back, however, the Rent Board in its ultimate wisdom passed a regulation (6.15C) that addresses this question. It provides that a landlord who is not an owner of record of the property—in other words, a master tenant—and who resides in the same rental unit as his/her tenant, may evict that tenant without just cause only if prior to the commencement of the tenancy, the master tenant informed the subtenant in writing that the tenancy is not subject to the ordinance’s just-cause eviction provisions.
The practical effect of this regulation is that the average tenant who is uninformed on the issue and rents to a roommate may find he/she is unable to get rid of the roommate and terminate a disagreeable living situation. Imagine if you were a master tenant forced, each morning at breakfast and again each evening at dinner, to endure a hostile face leering at you from across the table and then to listen to an endless barrage of criticisms, complaints and gripes. Imagine not being able to enjoy an hour’s solace in front of the TV or with your face in a book. Sadly, neither a general unpleasantness nor a sour disposition is just cause for eviction.
I have found that many of my landlord clients want their desirable tenants to know how to get rid of a subtenant without just cause, because often the subtenant is a problem for both owner and master tenant. An eviction by the owner can be complicated, with just cause difficult to prove; whereas an eviction by the master tenant, if no just cause is required, is easy. For this reason, many landlords will often advise the master tenant to provide the necessary written notice in the form of a written tenancy agreement between master tenant and subtenant. Of course, if you have a troublesome master tenant, you might not want to educate him, because maybe, just maybe, the roommate will be the very thing to send the no-goodnik packing.
– Saul M. Ferster
The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of 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. Steven Williams is with Wiegel & Fried, LLP, (415) 552-8230, www.wiegelfried.com. Jak Marquez is with Beckman Marquez LLP, (415) 495-8500 x 12. Saul M. Ferster can be reached at (415) 863-2678. Copyright © 2005 by the San Francisco Apartment Magazine. All rights reserved.