Category Archives: SF Legislative Update

San Francisco Legislative Update (Archives): “Just Cause” Required To Sever Housing Services

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San Francisco Ordinance 178-06 amended the Rent Ordinance to require the same “just cause” for severing housing services as is required for evictions.

The Rent Ordinance defines housing services to include quiet enjoyment of the premises, repairs, replacement, maintenance, painting, light, heat, water, elevator service, laundry facilities and privileges, janitor service, refuse removal, furnishings, telephone, parking, rights permitted the tenant by agreement, including the right to have a specific number of occupants, whether express or implied, and whether or not the agreement prohibits subletting and/or assignment, garage facilities, parking facilities, driveways, storage spaces, laundry rooms, decks, patios, or gardens on the same lot, or kitchen facilities or lobbies in single room occupancy (SRO) hotels, supplied in connection with the use or occupancy of a unit.

While some of these items seem inexorably intertwined with the rental unit itself, others – like access to a parking space – could previously have been “severed” by simply changing the terms of the tenancy to no longer include a parking space. The Board of Supervisors worried that this led to de facto evictions, where landlords gradually took away the amenities that tenants depended on, in an effort to urge them to vacate. By requiring “just cause” for severance, the City prevents these items from being removed piecemeal, where a landlord may only take away such housing services with sufficient cause (e.g., permitted work to convert garage space into an ADU unit).

The corollary of this concept is found in Rent Board Rules & Regulations §12.20, which provides that a tenant cannot generally be evicted for violating a unilaterally-imposed change to the term of their tenancy. (This was the subject of the 2015 opinion Foster v. Britton.)

You can read the full text of Ordinance 178-06 here.

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San Francisco Legislative Update (Archives): Leno Amendment Adding “Number of Occupants” to the List of “Housing Services” and Prohibiting Evictions for Subletting Where Landlord Unreasonably Withholds Consent

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The “Leno Amendment” to the Rent Ordinance (enacted through Ordinance 237-99 added to the list of “housing services” the rights permitted the tenant by agreement, including the right to have a specific number of occupants, whether express or implied, and whether or not the agreement prohibits assignment and/or subletting.

It also limited evictions for breaches of lease covenants where the landlord has unreasonably withheld consent to sublet and the tenant has only made a one-for-one replacement of occupants.

You can read the full text of Ordinance 237-99 here.

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San Francisco Legislative Update (Archives): San Francisco Expands “Mitigation Payment” to All Tenants Displaced by the Ellis Act

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San Francisco Ordinance 21-05 expanded the scope of relocation assistance “mitigation payments” to all tenants displaced by the Ellis Act, regardless of whether they were “low income”.

Ordinance 21-05 provided for an inflation adjusted payment (roughly tracking first months’ rent, last month, and security deposit), which payment was upheld as “reasonable” in the case Pieri v. City & Cty. of San Francisco (2006) 137 Cal. App. 4th 886. However, the “Pieri reasonableness” standard was called into question in the case Coyne v. City & Cty. of San Francisco (2017) 9 Cal. App. 5th 1215, which measured the propriety of mitigation payments by whether they imposed a “prohibitive price” on a landlord’s exercise of his state law right to go out of the residential rental market.

You can read the full text of Ordinance 21-05 here.

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Board of Supervisors Passes Ordinance Amending Rent Ordinance To Address “Fraudulent Owner Move-In Evictions”

The San Francisco Board of Supervisors finally passed one of two competing bids to strengthen the “Owner Move-In” provision of the Rent Ordinance. The proposed changes followed an NBC Bay Area investigation into the occupancy status of dwelling units where the landlord had initiated an OMI eviction.

The NBC Bay Area investigation attempted to determine whether these dwelling units were, in fact, occupied by owners following the termination of the previous tenancies. It reviewed each of over 300 OMI notices filed with the Rent Board in 2014. After making contact with occupants of about 100 of these units, it found tenants paying higher rent, instead of owner-occupiers, in roughly a quarter of the units.

Existing law requires that a property own who invokes the OMI provisions move into the unit within 3 months, occupy it as their full-time residence for 36 months. A property owner must do all of this in good faith, and, while it is permissible to vacate earlier (e.g., if the owner relocates and moves out sooner than expected), and resume rental use, the property owner was required to re-offer the unit (1) at the former rental rate, and (2) to the displaced former tenant, for a period of three years following the service of the notice of termination.

In an effort to address these alleged “fraudulent OMIs”, the Board of Supervisors has been considering competing proposals, by Supervisor Farrell and Supervisor Peskin, for the last several months. Each would to enhance the constraints on re-rental of units recovered in OMI evictions (extending the timeframe to reoffer to the displaced former tenants from three to five years). The Board of Supervisors ultimately passed Farrell’s version, which also provided for misdemeanor liability.
Continue reading Board of Supervisors Passes Ordinance Amending Rent Ordinance To Address “Fraudulent Owner Move-In Evictions”

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San Francisco Legislative Update (2017): Children Now Entitled to Ellis Act Relocation Assistance Payments Following Danger Panda Decision

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The First District Court of Appeal recently vindicated a landlord’s efforts to terminate a tenancy pursuant to the Ellis Act, where both the Trial Court and the Appellate Division found the notice of termination of tenancy invalid, as the landlord paid only the adults and not the child who occupied the unit. That case, Danger Panda v. Launiu interpreted the term “tenant” in the section of the Rent Ordinance requiring relocation payments to “tenants”, determining that this was a term of art with a specific import: “Construing section 37.2(t) according to its plain language, a tenant is a person who is entitled to occupy a residential unit (1) to the exclusion of all others and (2) pursuant to a written agreement; oral agreement; sub tenancy approved by the landlord; or sufferance.” The Court noted, however, that it was only interpreting that term, not considering whether the Board of Supervisors had the authority to confer a relocation benefit on a child.

Supervisor Ronen picked up this cue, introducing Ordinance 123-17, which requires payment to every “Eligible Tenant”, defined as “each authorized occupant of the rental unit regardless of the occupant’s age”. Danger Panda resolved the uncertainty in whether minors were entitled to Ellis Act relocation assistance payments (as they are for other non-fault evictions under the Rent Ordinance). Interestingly, Ordinance 123-17 may resolve further uncertainty about whether a landlord is required to pay persons with whom she has no privity, but who nonetheless occupy a rental unit.

Ordinance 123-17 becomes effective July 22, 2017, and the full text is available here.

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San Francisco Legislative Update (2017): Revision to SF Fire Code Imposes Significant New Fire Safety Burdens on Property Owners

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San Francisco recently revised its entire Fire Code to impose significant new requirements on residential property owners in the City. Cities in California must enforce the California Fire Code and they may enact their own codes that are at least as strict as California’s. The adoption of a completely new code is therefore actually somewhat ministerial. Of course, while these changes were not prompted by Oakland’s recent “Ghost Ship” warehouse fire, fire safety (and lawful residential use of unpermitted/unregulated property) has been under increasing public scrutiny lately.
Continue reading San Francisco Legislative Update (2017): Revision to SF Fire Code Imposes Significant New Fire Safety Burdens on Property Owners

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San Francisco Legislative Update for 2016: Enhancing Enforcement Provisions for “Airbnb Law” with New Obligations for Hosting Platforms

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San Francisco will now require hosting platforms to verify that a residential unit is on the City registry prior to listing and to require them to respond to requests for information from the City.

Ordinance 104-16 represents another effort in the City’s ongoing “project” of striking a balance that allows short term listings without allowing abusive practices that siphon long-term residential housing stock. The Board of Supervisors specifically states that the intent of the ordinance is not to punish short-term rental hosts who are trying to lawfully comply with San Francisco’s short term rental laws, but rather to bring more short term rentals into compliance. It goes on to self-consciously note that the registration process has been difficult to navigate, directing the Office of Short-Term Rentals to make recommendations on how the City can improve the process. Perhaps the law will need to be revised again in the future, but that’s some customer service in the meantime.

You can read the full text of Ordinance 104-16 here.

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San Francisco Legislative Update (2016): New Defense to Owner Move-In Evictions for Students and Educators

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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.

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SAN FRANCISCO LEGISLATIVE UPDATE (2016): Conditional Use Approval Required for Removal of Authorized and Unauthorized Units

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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.

If this description sounds an awful lot like a tenant’s use of a rental unit dictates its status as rent controlled housing, that might not be far off. (Seemingly, this would lead to the same result as in the 2014 appellate decision, Burien, LLC v. Wiley, notwithstanding a landlord’s innocence as to the illegal use.)

You can read the full text of Ordinance 23-16 here and Ordinance 33-16 here.

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