Los Angeles Times Reports on Tenant Choices in Return of Ellis-Withdrawn Building to Rental Market

The Los Angeles Times reports on the decisions of tenants, displaced by the Ellis Act, to return to their former units later re-offered for rent.

While the Ellis Act is colloquially described as “going out of the rental business”, it actually sets the standards for cities to implement rules on withdrawing from the market and going back into business later. For instance, a displaced tenant may be re-offered their former unit if rented within ten years of withdrawal, and within five years, they benefit from their old rent-controlled rental rate.


Legislative Update: AB 2343 (2018): Amendment to Unlawful Detainer Statutes To Extend Breach Cure Period and Tenants’ Time To Respond to Complaint

Assemblymember Chiu’s AB 2343 is signed into law, extending three important deadlines in the unlawful detainer statutes by excluding “Saturdays, Sundays and judicial holidays”. Effective September 1, 2019, both three day notices to pay rent or quit and three day notices to cure breach or quit will no longer include these “off days” in calculating their deadlines.

Under current law, a notice served on a Wednesday would count Thursday (day 1) and Friday (day 2), however, they cannot expire on a holiday/weekend, so the “third” day would be Monday. At least with payment of rent, this rule makes sense, because a tenant may need to go to a bank to obtain funds. (Still, this calendaring has arguably led to confusion and harsh results for some.)

The amended unlawful detainer statutes will also exclude these off days when counting the response date to the unlawful detainer five-day summons.


Division Four of First District Court of Appeal Harmonizes Litigation Privilege with Tenant Anti-Retaliation Statute in Winslett v. 1811 27th Avenue, LLC

“The litigation privilege is ‘not without limit’, as the Action Apartment court took pains to point out. (Action Apartment, supra, 41 Cal.4th at p. 1242.) Because recognition of the privilege here would neuter section 1942.5 by removing eviction from the statutory remedy of retaliatory eviction, we view the clash between section 47, subdivision (b), on the one hand, and section 1942.5, subdivisions (d) and (h), on the other, as irreconcilable. To be consistent with the high court’s guidance that we give section 1942.5 a liberal construction designed to achieve the legislative purpose, we conclude that the litigation privilege must yield to it.”

In Winslett v. 1811 27th Avenue, LLC (2018), a former tenant filed a complaint against a landlord for retaliation and retaliatory eviction, under Section 1942.5 of the Civil Code, as well as violations of Oakland’s just cause for eviction ordinance. The trial court granted the landlord’s anti-SLAPP motion to strike. The tenant appealed the trial court’s ruling that the litigation privilege barred the retaliation claims and that her claims under the eviction control ordinance were based on protected activity under the anti-SLAPP statute. The Court of Appeal agreed and reversed.

Continue reading Division Four of First District Court of Appeal Harmonizes Litigation Privilege with Tenant Anti-Retaliation Statute in Winslett v. 1811 27th Avenue, LLC


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?


SF Chronicle Reports on Court of Appeal Reversal of Ellis Act Judgment for Property Owner so Jury Can Hear Evidence of Alleged “Sham Transfer” to Co-Owner

Update: Division Five has certified Coyne v. De Leo for publication.

The San Francisco Chronicle reports on a recent unpublished ruling from Division Five of the First District Court of Appeal, reversing a judgment in favor of an Ellis Act-invoking landlord, on the basis that the trial court improperly excluded evidence of a “sham transfer”.

The Ellis Act requires property owners to withdraw all “accommodations” (i.e., residential rental units) from the market and to terminate all such tenancies. A landlord may not terminate some accommodations and leave others. (This is a common sense rule that allows a landlord to “go out of business” but not to evade rent control by evicting low-paying tenants and keep the market rate ones.)

In Coyne v. De Leo, the owner (Coyne) invoked the Ellis Act on a four-unit building with a single “tenant”. Other units were occupied by family members and friends – including one friend, Maria Esclamado, who was a former tenant until Coyne made her an owner so that she could participate in the Ellis withdrawal and remain in her home.

The tenant (De Leo) wanted to introduce evidence about this “transfer of ownership” to the jury. He argued that the transfer – with seller financing, a monthly payment conspicuously similar to the former “rent” payment, and an eventual “quitclaim deed” back to Coyne when she moved – was suspicious.

The Chronicle quoted Coyne’s attorney, Justin Goodman, as saying that Esclamado “received title to the property and had all the benefits of title” while “Martin (Coyne) took all the risks”, predicting that Coyne would prevail at a retrial even with the evidence that was previously barred.


San Francisco Legislative Update (2018): San Francisco No Longer Allows Increased Debt Service and Property Tax Passthrough Rent Increases


San Francisco has passed Supervisor Fewer’s proposal to eliminate “debt servicing” passthroughs to tenant’s rental rates. In general, a landlord can only increase the rent for tenants in rent-controlled apartments by a limited amount (which, in San Francisco, is a 60% of the increase in the consumer price index, as published by the US Dept. of Labor, in the preceding year). As of this post, for instance, this “annual allowable increase” is 1.6% of the tenant’s “base rent”.

To avoid confiscatory results of price controls, however, the Rent Ordinance has allowed additional increases based on things like utilities, taxes, capital improvements and… debt servicing. However, Supervisor Fewer aimed to close a perceived loophole in this rule, where owners would load a property with debt for the specific purpose of increasing the rental rate.

Ordinance 132-18 amends Rent Ordinance Section 37.8 (“Arbitration of Rental Rate Adjustments”) to prohibit rent increases based on increased debt.


Oakland Now Regulates “Tenant Move-Out” Agreements

Oakland now regulates agreements between landlords and tenants to pay consideration to voluntarily vacate rental units (commonly known as a “buyout agreement”). Oakland joins Los Angeles, Berkeley, Santa Monica and San Francisco in enacting these regulations.

As with other jurisdictions, registration is a two-step process, where the landlord provides a pre-move out disclosure to the tenant and then executes a “negotiation disclosure” to file with the Rent Adjustment Program prior to commencing negotiations.

Tenants have a right to rescind for 25 days after execution (which may be as short as 15 days, if agreed to by the parties), and they must receive notification of the context of these negotiations and agreements, like the fact that they would receive relocation assistance payments for non-fault evictions, that rent on the open market is generally higher, and that buyout payments may be taxable.


Supervisors Peskin and Fewer Introduce Legislation Supporting CA Prop. 10 – the Repeal of the Costa-Hawkins Rental Housing Act

Supervisors Peskin and Fewer have introduced legislation for San Francisco to “support for full repeal of the Costa-Hawkins Rental Housing Act, which would enable policymakers across the State to confront the housing affordability crisis by expanding rent control, enacting and implementing vacancy control, and taking other critical steps to stabilize neighborhoods and communities across the State of California”.

Currently, local governments are permitted to set price controls for rent, with some exceptions for single family homes and condominiums, new construction, and most vacant rental units (unless a landlord has performed a “non-fault” eviction, like an Ellis Act withdrawal or owner move-in eviction). A repeal of Costa-Hawkins would remove those exceptions, allowing regulations like “vacancy control”.

The Costa-Hawkins repeal effort will appear on the November ballot as Proposition 10.


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.


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

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

Justin discussed relative-move-in evictions and the potential defense to an unlawful detainer action based on “tenant retaliation” (even where a tenant is “baiting” the retaliation).

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.


Residential Rent and Eviction Control Resources