Residential Rent and Eviction Control Resources
SF Gate reports on the sinking and tilting of SOMA’s Millennium Tower, which has settled 16 inches since its completion in 2008. Theories vary, with some saying this is due to the choice not to drill piles into the bedrock and others shifting the blame to excavation at the adjacent Transbay Transit Center.
Meanwhile, rental housing is down as well (metaphorically)
Airbnb has filed a lawsuit against San Francisco in Federal District Court, seeking to invalidate the recent expansion of enforcement tools to regulate short-term residential rental listings. Ordinance 104-16 now requires hosting platforms to verify that a residential unit is on the City registry prior to listing and to requires them to respond to requests for information from the City. Violations can lead to civil penalties of $1,000 per day, as well as certain criminal penalties.
Airbnb alleges that the new ordinance violates its rights under the Communications Decency Act, which “expressly preempts state and local laws that treat a website ‘as the publisher or speaker of any information provided by another information content provider’,” urging that, “instead of targeting speech, the City instead could simply enforce its existing short-term rental law directly against hosts who violate it”.
However, Airbnb also alleges that the new law violates its rights under the First Amendment, insisting that it is “a content-based restriction on advertising rental listings, which is speech”. Whether or not the new ordinance will survive judicial review as a constitutional economic regulation, it does seem inconsistent to advance a First Amendment argument while also disclaiming that listings are speech. And, in any event, simply verifying that a host has complied with the “Airbnb law” and obtained a listing number does not quite make the list of onerous restraints on speech. The Federal District Court also recently upheld the City’s buyout legislation, requiring a landlord to disclose certain rights to tenants concerning “buyout agreements” (offering money for the vacating of a rental unit) prior to having the discussion, against a constitutional challenge for restrictions on speech.
Supervisor (and State Senate candidate) Scott Weiner is introducing legislation to extend rent control protections of the Rent Ordinance to recipients of federal housing subsidies under HOPWA (Housing Opportunities for Persons with AIDS)
City Attorney Dennis Herrera is suing the San Francisco Academy of Art for what the City describes as “widespread, longstanding, and blatant disregard for the San Francisco Planning Code”. The complaint charges the Academy with having “cavalierly changed the use of over 22 buildings in San Francisco in violation of the Planning Code” by “acquir[ing] buildings that are zoned and permitted for use as apartments and other residential purposes, only to convert them unlawfully to student dorms, depriving San Francisco of critical housing stock, especially affordable housing”.
One possible upside of dormitory use for one of the City’s largest property owners is the exemption under the Rent Ordinance for otherwise covered rental units operated as dormitories by an “institution of higher education”.
San Francisco has passed a much publicized amendment to the owner move-in provisions of the San Francisco Rent Ordinance to provide a defense for students and educators, in an effort to mitigate disruption during the school year.
The new language broadens the protection to include educators, as well as children, making it a defense to an eviction that a notice of termination of tenancy expires during a school year.
This defense now also extends to “educators” so long as the “tenant” with a family relationship to the educator has resided in the unit for 12 months. Presumably tenant attorneys will now expand their practice to include family law for last-minute marriages.
Ordinance 55-16 extends the defense to four other bases for non-fault evictions (including for demolition/removal of a unit, conducting capital improvement/ substantial rehabilitation work). This new exception does not apply when the landlord seeks to perform seismic work, under Building Code Chapter 34B, showing that the Board of Supervisors is aware some things are more important than the San Francisco housing crisis.
Finally, Ordinance 55-16 eliminates the former “trump card” where the landlord seeking to move in also has a child who will reside in the unit. Perhaps the move into a new home would also disrupt the studies of the landlord’s kid.
Despite some reports, this does not affect Ellis Act terminations.
You can read the full text of Ordinance 55-16 here.
San Francisco now requires conditional use approval (via hearing by the Planning Commission) for the removal of both authorized and “unauthorized” (i.e., unpermitted) residential units, under Section 317 of the Planning Code.
Ordinance 33-16, modifying Section 317 of the Planning Code, follows (and repeals) Ordinance 23-16, requiring conditional use authorization for removal of authorized and unauthorized units in the C-3 (Downtown Commercial) District.
You can read the full text of Ordinance 23-16 here and Ordinance 33-16 here.
The San Francisco Housing Court has begun sustaining demurrers to unlawful detainer complaints that fail to allege compliance with the “dominant motive” requirement of the Section 37.9(c) of the Rent Ordinance and/or attach termination notices that do not include the Rent Board’s Form 1007, containing multi-language advice to tenants about the Rent Board.
These new requirements – imposed by the “Jane Kim Amendment” to the Rent Ordinance – have been catching some practitioners off guard (which, to some degree, may have been the point). While it is a simple enough task to amend the complaint to state that “collection of rent” (or whatever) is the landlord’s “dominant motive” (as is now required by the amended Section 37.9(c)), the missing Form 1007 is more problematic.
Section 1166 of the Code of Civil Procedure, requiring landlords to attach termination notices, does allow amendment of the complaint upon failure to attach a copy of the notice (or, unless leave to amend is futile, a complete copy of the notice). Unfortunately for landlords, Form 1007 must be attached to the notice, the service of which is a prerequisite to an unlawful detainer cause of action.
Following the recent Borsuk decision, Delta Motions To Quash no longer appear to be a viable pleading challenge to test the sufficiency of a cause of action for unlawful detainer. Nonetheless, this kind of defective pleading would seem to appear on the face of the unlawful detainer complaint, making it appropriate for demurrer. And, where a properly-served and legally sufficient notice of termination is a prerequisite for unlawful detainer standing, leave to amend is not likely to rescue the lawsuit.
With the recent Borsuk decision, a divided Second District left an open question in the appellate courts about whether a tenant could challenge the sufficiency of an unlawful detainer complaint with a motion to quash. San Francisco’s Housing Court has already begun demonstrating its approval of the rationale in Borsuk. Given how often defendants file writ petitions challenging the denial of these motions, it seems that it will only be a matter of time before the First District establishes its own rule for the now-endangered Delta Motion.
Over the years, the Board of Supervisors has amended the Rent Ordinance in various ways to prevent de facto terminations of tenancies. For instance, a “housing service”, like a patio, a parking space or use of a barbecue cannot be severed without the same “just cause” required to end a tenancy generally. The reasoning for this is obvious – a landlord cannot urge their tenants to leave by taking away the features of a tenancy that the tenant has come to rely on.
Similarly, a landlord cannot add to the lease – that is, they cannot create new, unilaterally imposed contract requirements, the violation of which constitutes a material breach of the lease and just cause for eviction. This policy is codified in Section 12.20 of the Rent Board Rules and Regulations.
In Foster v. Britton (2015) 242 Cal. App. 4th 920, a tenant filed an action for declaratory relief against her landlord, seeking a determination of the legal rights under her lease, in response to her landlord unilaterally changing the terms of her tenancy, under Cal. Civ., §827. In response, the landlord took the position that section 827 preempts Section 12.20.
Judge Quidachay of the San Francisco Housing Court ruled in favor of the tenant. In upholding his ruling, the Foster court found authority in the seminal case Birkenfeld v. City of Berkeley (1976) 17 Cal.3d 129 for the proposition that “a municipality has authority to limit the substantive grounds for eviction, but it may not interfere with the procedural protections offered by state law. Nothing in Rule 12.20 interferes with the notice procedures required by section 827, or any other procedural protections. Rather, its effect is to regulate the substantive grounds on which a landlord may evict a tenant”.
Zumper reports that San Francisco prices increased 4.5% in 2015. While this means that the most expensive housing market in the country got even more expensive, after a 13.5% increase in 2014, this may suggest that prices are approaching their limit – particularly given that prices went down in November of this year.
Zumper also notes that a few neighborhoods in San Francisco actually saw price drops this year.
