The Superior Court of California, County of San Francisco, announced today that the Honorable Judge Ronald Evans Quidachay has retired, after serving nearly 40 years on the bench. Most recently, Judge Quidachay sat as the long-serving judge of San Francisco’s Housing Court (“Department 501”), initially designated as the unlawful detainer law and motion department, but eventually expanding to encompass all real property issues. After retiring on June 27, 2018, he was immediately sworn in as a “visiting judge” to resume his law and motion duties as his successor assumes the law and motion department. He is “survived by” his capable staff research attorney, Olga Grecova.
Knight argues, and the trial court agreed, that Salima became a tenant at sufferance no later than when Knight filed the unlawful detainer action against her; therefore, she had only the right of “naked possession,” i.e., the right not to be forcibly evicted without legal process. Salima argues that despite her nonpayment of rent, she retained all legal rights as a month-to-month tenant until she was dispossessed following the conclusion of the unlawful detainer action.
In Multani v. Knight, a commercial tenant (Multani) leased a commercial space from Knight, to use as a medical clinic. As she was winding down her practice, her sons contracted to sell to another physician. However, because of medical issues, Multani stopped maintaining the business. Landlord Knight served a three-day rent demand notice, filed an unlawful detainer when it went uncured, and took possession by default.
In the meantime, plumbing problems lead to water damage to the personal property/medical equipment in the clinic. After the default judgment for possession, Multani sued for conversion of the personal property/fixtures, breach of the covenant of quiet enjoyment (later re-characterized as “constructive eviction” from a commercial tenancy), interference with contract, and a handful of other claims. Knight cross-complained for the unpaid rent.
Knight filed for summary judgment, arguing that Multani, “could not prevail on any of her claims because she was unlawfully on the premises at all times after July 1, 2011, and was illegally on the premises after December 9, 2011”. This argument, adopted by the trial court, became the architecture for an aggressive published appellate opinion about when the law discharges a landlord’s obligations to a defaulting tenant.
Continue reading Multani v. Knight (2018): Second District Court of Appeal Takes Expansive Approach To Discharging Landlord’s Obligations Following Expiration of Rent Demand Notice
“Where an unlawful detainer proceeding is based on the tenant’s breach, the cause of action does not arise until the expiration of the notice period without the default being cured by the tenant. (§ 1161, subd. 2; Downing v. Cutting Packing Co. (1920) 183 Cal. 91, 95-96.) The complaint cannot be filed until the full notice period has expired, since the tenant is not guilty of unlawful detainer until the full three days — or in the instant matter, 14 days – have expired. (Nicolaysen v. Pacific Home (1944) 65 Cal.App.2d 769, 773 [‘tenancy is not terminated upon the giving of the notice but upon the expiration of the period therein specified’]”
In Hsieh v. Pederson (2018), a landlord appealed from a judgment for a tenant on the procedural basis that the entire action was untimely. A cause of action for unlawful detainer is (commonly) created by the service and expiration of an uncured notice. The tenant moved for judgment on the pleadings, and the trial court granted it on the basis that the notice – which allowed as an alternative cure that the tenant may pay personally during weekdays – could only count those weekdays as part of the “cure period”. Excluding weekends, the action was filed before the expiration of the notice; the Appellate Division of the Los Angeles Superior Court reversed.
Section 1161(2) of the Code of Civil Procedure describes a notice to pay rent or quit. (This is probably the quintessential “eviction notice”, described by statute as a “three day notice”, although for some reason unclear from the record, this case involved a “fourteen day notice”.)
A notice to pay rent or quit must state the essentials – the rent due and the name, number and address of the person who can receive the “cure”. The notice may also allow payment by personal delivery, in which case, it must also state the usual days/hours the personal delivery can be made.
The court held that, “Under the clear language of the [unlawful detainer] statute, the decision to allow personal payment of the rent, in addition to allowing payment by mail by the tenant, is up to the landlord.”
Justin discussed the history of San Francisco Rent Board’s “Rule 12.20” (which prohibits evictions based on breach of a lease term, if the landlord unilaterally added it to the lease) in the context of state law changes to residential tenant’s rights to smoke cigarette’s in their homes.
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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.
“[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 and County of San Francisco v. Post (2018) – FEHA Does Not Preempt Local Anti-Discrimination Regulations Not “Encompassed by Its Provisions”
“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. The owner could not make any changes for a period of ten years following a non-fault eviction.
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
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
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.
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