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.