Category Archives: Q&A

Zacks, Freedman & Patterson, PC To Join MCLE Panel on the Ellis Act in San Francisco

Justin A. Goodman of Zacks, Freedman & Patterson, PC will join a panel of attorneys (who represent both tenants and landlords), as well as the Senior Advisor at the Office of the Mayor, to teach a continuing legal education course on the Ellis Act. The course will include preparing for withdrawal of residential property from the housing market, the transactional process leading to termination of tenancy, common defenses, and the lasting effect on the property after ‘going out of business’.

The MCLE course is presented by the Bar Association of San Francisco, and will take place on December 10, 2018 at 12:00pm in the BASF Conference Center, located at 301 Battery Street, 3rd Floor, San Francisco, California.

Moderator
Tiffany R. Norman, trn Law Associates

Speakers
Andrew Wiegel, Wiegel Law Group, PLC
Thomas E. Drohan, Staff Attorney Legal Assistance to the Elderly
Justin A. Goodman, Zacks, Freedman & Patterson, PC
Jeff Buckley, Senior Advisor for the Office of the Mayor

The Bar Association of San Francisco has been providing San Francisco legal professionals with networking and pro bono opportunities in order to better serve the community since 1872.

Its mission is to champion equal access to justice and to promote humanity, excellence, and diversity in the legal profession. It provides legal services to disadvantaged and underserved individuals in San Francisco and creates opportunities for legal service in the community, encouraging participation by its members.

It advances professional growth and education, and elevates the standards of integrity, honor, and respect in the practice of law. It also cultivates diversity and equality in the legal profession, provides a collective voice for public advocacy, and pioneers constructive change in society.

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

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

Justin discussed potential liability for a landlord “waiting too long” to rent an available apartment when he is only receiving applicants enrolled in the Section 8 program, as well as how the recent opinion CCSF v. Post (2018) changed the rules on “source of income discrimination” in San Francisco.


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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Legal Q & A: How Expensive Is an Ellis Act Eviction?

A. An Ellis Act eviction will cost a fair amount of money, time and your patience. Let’s start with the basics: the Ellis Act is a state law that requires cities to allow landlords to stop being landlords – specifically by withdrawing their property from the residential rental market. A landlord who withdraws their property can terminate tenancies. This requires an “eviction notice” and a handful of other documents, the validity of which are often measured with exacting standards. Landlords should hire qualified counsel to do this work. The first expense will therefore be your legal fees and tasks associated with preparing for a successful Ellis. These will vary with the size of your building, the quality of paperwork in the management file, and possibly the need to obtain insurance, adjust record title or even refinance with a suitable lender.
Continue reading Legal Q & A: How Expensive Is an Ellis Act Eviction?

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How Long Does an Ellis Act Eviction Take?

The short answer is that it takes 120 days to terminate a tenancy, unless the tenant is at least 62 years old or is “disabled” (as defined by the Ellis Act and housing discrimination law), in which case, it takes a year.

The longer answer:
In general, month-to-month tenancies in California can be terminated on thirty days’ notice. Residential tenancies older than a year require sixty days instead. This is still true for any non-fault-based eviction in a city with eviction control. However, in 1999, the Ellis Act was amended so that tenants receive at least 120 days notice, with the option to extend. And, if at least one tenant claims an extension, the landlord can extend the withdrawal date of every other unit to match. (In other words, the landlord can “go out of business” as to the entire building at the same time.)

Of course, this just answers the question of how much notice your tenant receives before their tenancy is terminated. In San Francisco, the Ellis Act has become more of a political issue than a legal one. (Ellis-displaced tenants receive priority affordable housing, and they have received city-funded legal defense long before the passing of Proposition F.) More often than not, tenants hold over after their tenancies are terminated, aiming to defeat the eviction lawsuit and preserve their tenancy. Sometimes they are successful.
Even when the landlord is successful, they should expect to add five months of intense litigation to their timeline to recover possession.

Preparing for an Ellis Act eviction may require a review of the history of the tenancy (including changes in occupancy), clarification of the form of record ownership, changes in insurance coverage, and even refinancing, if the lender won’t allow Ellis evictions. In other words, the best time to start this process was yesterday. The second best time is right now.

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Will a “Protected Tenant” Prevent Me from Using the Ellis Act in San Francisco?

No, it will only delay your efforts by about eight months. The concept of a “protected tenant” has nothing to do with the Ellis Act. The term comes from one of San Francisco’s other just causes for eviction – the “owner/relative move-in eviction”. Cities may regulate the substantive grounds for eviction of residential tenants, but for constitutional reasons, they must allow at least some mechanism for an owner to live in their own home (or else the tenant’s permanent physical occupation is a “taking” in violation of the Fifth Amendment).

However, San Francisco has been given significant leeway in preventing certain kinds of tenants from being the subject of owner move-in evictions (the most recent being the expanded eviction protection for “educators”, who may not be evicted during a school term). The OMI/RMI statute has evergreen protections as well. For instance, if a tenant is elderly (60+) or disabled, and has lived there for ten years, they cannot generally be the subject of an OMI/RMI. (A tenant also earns this protection if they are “catastrophically ill” and have lived there for only five.)

Now, these provisions do not apply if the landlord only owns one unit in the building (e.g., a condominium) or where the landlord already lives in the building, and each other unit is occupied by a “protected tenant”, and the landlord wants to relative move-in their 60+ relative. (The landlord (or their listing broker) will commonly serve a special form of estoppel certificate asking about a tenant’s protected status. Failure to respond will actually prevent the tenant from raising the defense.)

The Ellis Act, on the other hand, is the only substantive ground for eviction regulated at the state level, and it provides landlords the “unfettered right” to go out of business. Tenants who are at least 62 or are disabled and who have lived in their rental units for at least a year may make a one time claim of extension of the termination date of their tenancy (from 120 days to a full year from the initial filling of paperwork).

While there are no absolute defenses to the Ellis Act, the road to going out of business remains perilous. Especially where it may take a full year to test your paperwork, there is no substitute for qualified counsel.

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

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

Justin discussed the distinctions between the landlord-tenant relationship and master tenant-subtenant relationship with respect to rent control. Justin also discussed where this distinction might be blurred, who might be considered the “original occupant” (for purposes of rent control and Costa-Hawkins) and how a landlord can best position themselves for clear-cut lines with well-defined rights going forward.


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

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

Justin discussed San Francisco’s recent “ISP anti-monopoly” ordinance (titled “Occupant’s Right To Choose a Communications Services Provider”), explaining the ISP’s obligations in complying with the law while seeking access to a building, as well as an owner’s rights and duties in allowing (or lawfully refusing) access.


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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Justin Goodman Featured in SF Apartment Magazine Legal Q&A for November 2017

Justin Goodman was featured in the Legal Q&A for the November 2017 issue of SF Apartment Magazine – the official publication of the San Francisco Apartment Association.

Justin engaged an interesting issue about a tenant violating a lease provision concerning their parking space – one that called for forfeiture of the space – in the context of San Francisco’s prohibition against severing housing services without “just cause” and in the context of case law preventing evictions other than for violations of “material” lease terms.


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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Q & A: Is My San Francisco Condominium Subject to Rent Control?

“Is My San Francisco condominium subject to rent control?”

This is an interesting question, and the answer is surprisingly complicated. First, some general principles. Cities may constitutionally impose rent control ordinances, so long as they provide fair returns to property owners. San Francisco’s Rent Stabilization and Arbitration Ordinance applies to all “rental units” – a term that includes basically all dwelling units with certificates of occupancy issued before its effective date, June 13, 1979.

However, Costa-Hawkins, effective as of January 1, 1996, exempted certain kinds of dwelling units from local price controls, including those that were “alienable separate from the title to any other dwelling unit” (namely, single-family homes and condominiums). San Francisco eventually amended the Rent Ordinance in 2000 to respect the interplay between state and local law.

In the years after Costa-Hawkins’ enactment, some property owners were claiming the benefits of condominium conversion without actually selling any of them as separately alienable units. Essentially, the owner of an apartment would get final map approval to be able to sell the individual units in a (former) apartment building, using this as a pretext to increase rents on existing tenants. In 2001, the California Legislature identified this as a “loophole” in Costa-Hawkins and passed SB 985, amending Costa-Hawkins to exempt condos only under certain circumstances.
Continue reading Q & A: Is My San Francisco Condominium Subject to Rent Control?

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Surreal Estate Q&A #4: Deregulation of Mixed-Use Property

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“I have a building with a retail space on the bottom and a single apartment on top in San Francisco. The renter has been there for years, and I haven’t increased the rent yet. These days, his rent is well below market rate. I’m wondering if I can increase his rent, and by how much. ~ Michael”

Michael,
Thank you for your question. First of all, if his initial term lease has expired, you can always increase the rent by at least the annual allowable rent increase, as published by the San Francisco Rent Board. And if you haven’t done this for a few years, you can actually “bank” past year’s allowable increases and impose them all at once. (You lose out on the equivalent of rent increase “compound interest” by waiting, but you don’t actually forfeit your allowable increase by waiting.)

That said, I think your question is directed more toward whether the dwelling unit is rent controlled. My first follow up question would be whether the building was constructed after 1979. However, the profile of this building (one commercial, one residential) sounds like it is probably not “new construction”.

So the only real issue here is Costa-Hawkins deregulates this kind of unit. The language of Section 1954.52(a)(3) deregulates a dwelling unit that “is alienable separate from the title to any other dwelling unit . . .”. The building is multi-unit, but because only one of the units is a dwelling unit, the entire building is technically “separately alienable” from other “dwelling units”.

That said, I would want to double check zoning and make sure that there was never any residential use of the downstairs space, to avoid the imputing of “residential use” to a non-residential unit, as was the case in the recent decision, Burien, LLC v. Wiley.

~JAG

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