Feature
by Lawrence M. Scancarelli & Jerod Hendrickson
Editor’s Note: This is the first part in a two-part series on protected tenants. The series will conclude in the August issue of this magazine.
To paraphrase George Orwell (and without offense to our companion species friends), in San Francisco, all tenants are protected, but some are more protected than others. The laws on tenant rights are complicated and change frequently; as practicing attorneys in real-estate law and litigation, we have found that there is a lot of confusion and misinformation. That being said, an experienced eviction attorney will know how the protected or other status of a tenant impacts a potential eviction. The San Francisco Rent Ordinance contains different definitions and requirements for protected or eligible tenant status. To better understand and analyze special-tenant status at it relates to evictions, we have divided the subject into several areas, framed as questions.
In this article, we are only covering protected tenant and eligible tenant issues under the San Francisco Rent Ordinance. In general, the eviction protections of the Rent Ordinance apply to rental units where there was a certificate of occupancy before June 13, 1979. We will not cover fair housing issues and protections under federal, state or other local laws (many of these were covered in the April issue of this magazine). There are also special protections for military service members under federal law, special rules for Section 8 tenants and rights for certain tenants during the condo-conversion process. These will not be addressed specifically in this article.
1. Does the protected/special status of the tenant preclude or impact an eviction?
Under Section 37.9(i) of the Rent Ordinance, for buildings with two or more rental units (including illegal units), an owner cannot obtain possession for an owner-move-in (OMI) or relative-move-in (RMI) eviction when a tenant is: 60 or older and has lived in the unit for at least 10 years, disabled and has lived in the unit for at least 10 years, or has a catastrophic illness and has lived in the unit for at least 5 years. However, an owner would not be precluded from doing an RMI eviction (subject to the many other requirements in OMI and RMI evictions) where there were no units in the building with nonprotected tenants (except an owner-occupied unit) if the owner’s qualified relative moving in was 60 years old or older, but not if the relative was merely disabled or had a catastrophic illness.
For an OMI eviction for a unit with a protected tenant, the owner’s age, disability or catastrophic illness would not trump the tenant’s protected status. Even if the protected status of a tenant does not prohibit an RMI eviction, in an eviction trial, an owner would still have to prove that he/she seeks possession for the relative’s occupancy in good faith, without ulterior motive and with honest intent as the relative’s principal place of residence for at least three years. The owner could have further difficulty where there is a sympathetic tenant and a San Francisco jury consisting mostly of tenants.
Legal challenges to these protected tenant rules and other requirements for OMI/RMI evictions in Proposition G (effective as of December 1998) as an unconstitutional taking was upheld by a San Francisco court in 2003 (Cwynar vs. CCSF), but applied only to the parties in that case and is not a legal precedent. The city takes the position that all of the Prop. G rules are valid and enforceable. There is no guarantee that further challenges of Prop. G by different parties would be successful.
Under the OMI/RMI eviction law, a disabled person is a person who is disabled within the meaning of the Federal Supplemental Security Income/California State Supplemental Program and who is determined by SSI/SSP to qualify for that program, or who satisfies such requirements through another method of determination approved by the San Francisco Rent Board. Note that the definition of disability for purposes of Ellis Act evictions and the Subdivision Code (Condo Conversions) is different.
2. Would eviction of a protected tenant result in delays in the eviction and obtaining possession?
For an Ellis Act eviction under Section 37.9(a)(13) and 37.9A, certain protected tenants would be able to extend the usual 120-day notice period to a year. These would be tenants 62 and older, or disabled within the meaning of California Government Code Sections 12955.3 and 12926, who lived in the unit at least one year.
3. Would the eviction of a protected or other tenant result in increased relocation payments?
Proposition H, passed by San Francisco voters in November 2006, requires increased relocation payments for all “eligible tenants,” which are defined to include any “authorized occupant of a rental unit, regardless of age” who has lived in the unit for 12 or more months. That express language appears to include minor children. Also, Prop. H extends these payments to eligible tenants living in single-family homes and condos. It is also retroactive and applies to all eviction notices served on or after August 10, 2006. These relocation payments apply to eligible tenants who have been served with an eviction notice on specified “no-fault” grounds, which include evictions for OMI and RMI; demolition or otherwise permanently removing the unit from housing use; temporary move-out for capital improvements; and substantial rehab. The increased relocation payments are about the same as the increased Ellis Act eviction payments that went into effect in early 2006. Effective March 1, 2007 (with the latest CPI adjustment), $4,568 is payable for each eligible tenant, with a cap of $13,705 per unit. In addition to that, if a tenant in the unit is elderly (60 or older), disabled (per California Government Code Section 12955.3) or there is an eligible tenant in a household with at least one child under 18, an additional $3,046 must be paid to that tenant.
For Ellis Act evictions, effective March 1, 2007, the relocation payments are $4,571.92 per tenant, with a cap of $13,715.75 per unit and an additional $3,047.94 for each elderly (62 or older) or disabled (per California Code Section 12955.3) tenant. To receive these relocation payments, a tenant does not have to live in the unit for any minimum period of time.
4. How can an owner determine tenants’ protected status?
There is a special procedure under Section 37.9(i)(4) of the Rent Ordinance to determine the protected status of a tenant for purposes of OMI and RMI evictions. It can be done at any time, and should definitely be done when the property is sold. Within 30 days of personal service by the landlord of a written request or, at the landlord’s option, an OMI/RMI notice of termination of tenancy, the tenant must submit a statement, with supporting evidence to the landlord, if the tenant claims to be a member of one of the OMI/RMI protected classes. The written request or notice must contain a warning that a tenant’s failure to submit a statement within the 30-day period shall be deemed an admission that the tenant is not protected by the OMI/RMI protections. A landlord may challenge a tenant’s claim of protected status either by requesting a Rent Board hearing (but only for an OMI/RMI eviction, not for an Ellis Act eviction or sale of the property) or in court through an eviction. At the Rent Board or eviction hearing, the tenant has the burden of proving protected status. There is no civil or criminal liability for a landlord using this procedure or for challenging a tenant’s claim of protected status.
Even with this special tenant procedure, it may be possible for a tenant to claim later that he/she became disabled or that the form only covers the more stringent definition of disability under the OMI/RMI rules. An appellate decision held that the 37.9(i) procedure is the exclusive procedure for purposes of determining protected status for OMI/RMI purposes. Also, while it may prevent the tenant from claiming protected status as of the date it was completed, it may not prevent that tenant from claiming protected status at a later date. For example, a 59-and-one-half-year-old tenant may complete the form, state correctly that he is not 60 years or older, but assert, six months later, when the new owner commences an OMI eviction, that he is now 60 and protected. Alternatively, months after receiving the notice, a tenant may become disabled or claim disability. A San Francisco Association of Realtors form for a 37.9(i)(4) notice attempts to cover that problem; the form asks the tenant whether they believe they will become a member of a protected class (60 years old or disabled) within the next 12 months. Tenant advocates could claim that their client would not be required to answer that question, as it goes beyond the express requirements of Section 37.9(i)(4) or that a tenant should not be bound in answering the question when they later unforeseeably became disabled.
Next Month: The authors will cover protected tenants as they relate to eligibilty for condo conversions and building sales.
The opinions expressed in this article are those of the authors and do not necessarily reflect the viewpoint of SFAA or SF Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Lawrence M. Scancarelli and Jerod Hendrickson can be reached at 415-398-1644. Copyright © 2007 by SF Apartment Magazine. All rights reserved.