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City of San Francisco v. Post (2018) – FEHA Does Not Preempt Local Anti-Discrimination Regulations Not “Encompassed by Its Provisions”

“[T]he purpose of FEHA is precisely as broad – and as narrow – as the field of exclusivity that FEHA’s preemption clause demarcates. The statute’s purpose is ‘to provide effective remedies” for the 14 categories of “discriminatory practice[]’ that FEHA itself addresses. All agree that FEHA does not reach the discriminatory practice of a landlord refusing to rent to a participant in the Section 8 program. This means that San Francisco’s ordinance prohibiting such conduct has, by definition, a different purpose from FEHA.”

In CCSF v. Post, the San Francisco City Attorney sued property owners for listing ads for rental units that included a statement that they would not accept Section 8 vouchers, in violation of Section 3304 of the San Francisco Police Code. The City sought (and received) a preliminary injunction against the alleged business practice. The property owners appealed, arguing that the California Fair Employment and Housing Act (FEHA) already occupied the field of discrimination in this area. FEHA already prevents “source of income” discrimination, but defines it more narrowly that Section 3304, therefore they are allowed to discriminate against Section 8 vouchers while still in full compliance with FEHA.
Continue reading City of San Francisco v. Post (2018) – FEHA Does Not Preempt Local Anti-Discrimination Regulations Not “Encompassed by Its Provisions”

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Small Property Owners of San Francisco v. City and County of San Francisco (2018) – Cities May Not Impose Land Use Penalties on Property Owners Who Have Invoked the Ellis Act

“By imposing a 10-year waiting period on alterations to non-conforming units where property owners have exercised their Ellis Act rights, the ordinance penalizes property owners who leave the rental market. The ordinance does not regulate the particulars of the remodeling of a nonconforming unit, but rather prohibits any such changes for a period of 10 years after the property owner exits the rental business. By imposing such a prohibition on property owners who have left the rental market, the ordinance challenged here improperly enters the field of substantive eviction controls over such property owners.”

In SPOSFI v. CCSF (2018), the Small Property Owners of San Francisco challenged San Francisco Ordinance 286-13. Prior to that ordinance, Section 181 of the Planning Code prohibited the “enlargement, alteration or reconstruction” of nonconforming units. (These are legally constructed units in buildings that were “down-zoned” after the fact. As this is essentially a “math” problem, a property owner would designate the particular unit in the property that gets the “nonconforming” designation.)

Ordinance 286-13, however, allowed such modifications within the existing building envelop, so long as residential use was principally permitted in the zoning district and the owner had not performed a non-fault eviction at the property. In that circumstance, the owner could not make any changes for a period of ten years.
Continue reading Small Property Owners of San Francisco v. City and County of San Francisco (2018) – Cities May Not Impose Land Use Penalties on Property Owners Who Have Invoked the Ellis Act

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SB 827 – The “More Housing Near Transit” Bill Dies in Committee

The Chronicle reports that Senator Scott Wiener’s SB 827 failed to receive the majority votes required to advance out of the Senate Transportation and Housing Committee this week.

The bill would have increased density and height limits for projects within half a mile of major transit hubs. (This would have significantly impacted San Francisco, given its dense transit lines.) The Chronicle notes that, having been the subject of much debate, “Wiener amended the bill twice since introducing it in January in hopes of getting it through its first committee. He lowered the allowable height of buildings from eight stories, made the implementation date 2021 instead of 2019, and included a minimum number of affordable units that projects would have to include . . . He also agreed to stipulate that any tenant forced to move because of a project approved under SB 827 could return to the property when it was finished, at the same monthly rent. The developer would have had to cover rental assistance during construction for up to 3½ years.”

Senator Wiener expressed an interest in making changes to the bill to introduce it in the 2019 legislative year

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Oakland To Enact “Tenant Move Out Agreement Ordinance”

The City of Oakland appears ready to join the short list of California cities regulating “tenant buyout agreements” – i.e., providing consideration to tenants to voluntarily vacate their rent-controlled rental units. Cities like San Francisco, Berkeley, Santa Monica and Los Angeles view these negotiations as inherently unequal, given that a landlord can threaten to perform an owner-move-in eviction or an Ellis Act eviction if the tenant doesn’t agree to accept money to leave.

The ordinance would add Section 8.22.700 to the Oakland Municipal Code. It would require disclosures of tenants’ rights, provide for a right to rescind (within 25 days, along with requirement to file the agreement in 45 days), and impose “vacancy control” constraints (the old rental rate) if a landlord threatened an OMI or Ellis eviction within 180 days. (Otherwise, a tenant move-out, even for payment, would be considered a “voluntary vacate” allowing a market rate increase.) The ordinance also imposes penalties for non-compliance, including enhanced penalties for non-compliant buyout agreements with elderly, disabled and catastrophically ill tenants.

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AB 2364 – “All or Nothing” Ellis Act Withdrawal

Assemblymember Bloom’s AB 2364 would amend the Ellis Act to conjoin the dates of both “withdrawal from accommodations” and “re-offering units for rent” for multi-unit properties withdrawn under the Ellis Act.

Currently, the Ellis Act requires that landlords withdraw all “accommodations” at the same time. (Generally, this means that all rental units must be taken off of the rental market in the same effort, and each tenancy terminated (with some exceptions for parcels with multiple structures).) A 1999 amendment to the Ellis Act (SB 948) provided for an extension of this time period, and it split the particular “date of withdrawal” between standard tenancies and those with “elderly” or “disabled” tenants (as defined). This sometimes leads to different dates of withdrawal for different units in a property.
Continue reading AB 2364 – “All or Nothing” Ellis Act Withdrawal

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AB 2925 – State Wide “Good Cause” for Eviction

Assemblymember Bonta has introduced AB 2925, providing for “good cause” for evictions. Originally, this was stated to be a “just cause for eviction” measure. Currently, most “just causes” for eviction are implemented at the city level (with the exception of the Ellis Act). “Just cause” means that a tenant has a substantive defense to an eviction if the landlord did not serve the eviction notice/terminate the tenancy with an allowable “just cause” (like nonpayment of rent or the desire of the owner to move in).

The meaning of “good cause” is a bit more vague. The current text of the bill would add Section 1946.2 to the Civil Code, to read:

“A landlord shall not issue a notice to terminate a tenancy pursuant to Section 1946 or 1946.1 except upon good cause, as set forth with particularity in the notice. This section is in addition to, and does not supersede or preempt, any other state or local law requiring the showing of good cause prior to the termination of a tenancy.”

This would merely seem to reiterate a protection that tenants already have at the state level – a defense against retaliatory evictions. As the California Supreme Court put it: “The retaliatory eviction doctrine is founded on the premise that a landlord may normally evict a tenant for any reason or for no reason at all, but he may not evict for an improper reason”. (Barela v. Superior Court (1981) 30 Cal. 3d 244, 249.)

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San Francisco Election Update: Proposition F (2018) – “No Eviction Without Representation Act of 2018”

Referencing Gideon v. Wainwright (the landmark U.S. Supreme Court case finding a constitutional right to criminal defense counsel) and the City’s 2012 declaration as a “Right to Civil Counsel City”, Proposition F seeks to provide defense counsel to tenants in unlawful detainer cases.

According to 2014 statistics from the Budget and Legislative Analyst, 80 to 90% of tenants face evictions without representation. If passed by a simple majority in June, the “No Eviction Without Representation Act of 2018” would add Section 58.4 to the SF Admin Code, providing full representation for residential tenants in eviction lawsuits (with an exemption for owners or master tenants evicting roommates).

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Justin Goodman Featured in SF Apartment Magazine Legal Q&A for March 2018

Justin Goodman was featured in the Legal Q&A for the March 2018 issue of SF Apartment Magazine – the official publication of the San Francisco Apartment Association.

Justin explored San Francisco’s Business and Tax Regulations Code, which sets forth requirements for business registration and the City’s gross receipts tax, and which considers owners of “one residential structure consisting of fewer than four units or one residential condominium” to be a “small business enterprise”. These small property owners do not need a registration certificate and are exempt from the gross receipts tax.


SFAA is dedicated to educating, advocating for, and supporting the rental housing community so that its members operate ethically, fairly, and profitably. SFAA’s is a trade association whose main focus is to support rental owners by offering a wide variety of benefits that address all aspects of rental housing industry.

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SocketSite.com Reports on Ten Years of SF Eviction Notice Statistics: Ellis Act Is Up for 2017

SocketSite.com reports the ten-year trend of eviction notices filed with the San Francisco Rent Board. The trend for 2017 is a decrease across the board, with one exception – the Ellis Act.

SocketSite doesn’t express an opinion on the cause for the trend (at least until you get to the comment’s section). However, a recent decline in breach/nuisance evictions may be attributable to the 2015 Jane Kim Amendment (which heightened both the pleading standard and the substantive threshold for a landlord to prevail here). The recent decline in OMI/RMI evictions may be because of the uncertainty of the “educator” amendment or the more stringent enforcement of fraudulent owner move-in evictions. Ellis Act evictions may be up in recent years (compared to 2013) following a dip during the uncertainty created by the “Campos I” and “Campos II” enhanced relocation assistance payment legislation.

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SFAA v. CCSF (2018): City’s “Educator” Eviction Defense Upheld as “Substantive” Rather Than “Procedural”

Thus, under Birkenfeld, municipalities may by ordinance limit the substantive grounds for eviction by specifying that a landlord may gain possession of a rental unit only on certain limited grounds. But they may not procedurally impair the summary eviction scheme set forth in the unlawful detainer statutes. The Property Owners argue the Ordinance is procedural because it governs the timing of notices of eviction: ‘The Ordinance does not limit the allowable justifications for evicting tenants; it only delays certain evictions.’ Such questions of timing, they contend, are purely procedural. The City argues the Ordinance is substantive because timing is merely a component of the substantive defense to eviction: ‘When the household to be evicted includes a child under the age of 18 or an ‘educator’ within the terms of the Ordinance, ‘good cause’ for a landlord to undertake any of the specified types of no-fault evictions does not exist unless the eviction is to take effect during the summer months.’ As this case illustrates, the distinction between procedure and substantive law can be shadowy and difficult to draw in practice.

In SFAA v. CCSF, Division Five of the First District Court of Appeal overturned the SF Housing Court’s order mandating that the City not enforce a 2016 amendment to the Rent Ordinance (Ordinance 55-16) that created a substantive defense to certain non-fault evictions for “educators”.

Continue reading SFAA v. CCSF (2018): City’s “Educator” Eviction Defense Upheld as “Substantive” Rather Than “Procedural”

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