Fact Sheet 4 - Eviction Issues
Important Advisory: The following information pertains only to residential rental units that are subject to the San Francisco Rent Ordinance. Because of frequent changes to the eviction provisions of the Rent Ordinance, interested parties are urged to contact the Rent Board or an attorney for the most current information.
Applicability of the Rent Ordinance’s “Just Cause” Eviction Provisions
The contents of this Fact Sheet pertain only to residential rental units in the City and County of San Francisco that are subject to the San Francisco Rent Ordinance. All such units are subject to the “just cause” eviction provisions of the Ordinance as well as other related eviction requirements.
The Rent Ordinance does not regulate evictions from rental units that are totally exempt from the Ordinance – such evictions are governed entirely by state law. Exempt units include those in buildings constructed after June 13, 1979 plus a very limited number of units exempted by the Ordinance and/or Regulations or through a Rent Board petition process. (See Ordinance Section 37.2(r) and Rules and Regulations Section 1.17 for a complete list of exemptions.)
Some tenancies that are exempt from the rent increase limitations of the Ordinance are still subject to the eviction provisions of the Ordinance. Tenants in these categories can only be evicted for one of the “just cause” reasons listed in the Ordinance. This includes tenancies that are eligible for an unlimited rent increase under the Costa-Hawkins Rental Housing Act or Rules and Regulations Section 1.21 because the unit is not the tenant's principal place of residence, and tenancies where the rent is regulated by another government agency, including Section 8 vouchers, Section 8 certificates and HOPWA (Housing Opportunities for Persons With AIDS). In addition, effective April 25, 2010, any tenant who was in possession of an exempt rental unit at the time of foreclosure may not be evicted by the person or entity who took title through foreclosure except for a “just cause” reason under the Rent Ordinance and only after expiration of the tenant’s existing lease term. [Ordinance Section 37.9D(b)]
Overview of “Just Cause” Eviction Issues
In order to evict a tenant from a rental unit covered by the Rent Ordinance, a landlord must have a "just cause" reason that is the dominant motive for pursuing the eviction. The landlord also needs a "just cause" reason to remove, reduce or sever certain housing services from a tenancy, including 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 hotels.
There are 15 just cause reasons for eviction under Ordinance Section 37.9(a). The most common are:
· Non-payment of rent [Ordinance Section 37.9(a)(1)];
· Habitual late payment of rent – this means more than once or twice and the tenant has been warned that this is not acceptable to the landlord [Ordinance Section 37.9(a)(1)];
· Failure to cure a breach of a rental agreement or lease [Ordinance Section 37.9(a)(2)];
· Creation of a nuisance or substantial interference with the landlord or other tenants in the building – the nature of the nuisance must be specifically stated on the notice of termination [Ordinance Section 37.9(a)(3)];
· Owner-occupancy or, in limited circumstances, occupancy by a member of the landlord's immediate family [Ordinance Section 37.9(a)(8)];
· To demolish or permanently remove a rental unit from housing use [Ordinance Section 37.9(a)(10)];
· To perform capital improvements which will make the unit temporarily uninhabitable while the work is being done – the tenant must be allowed to reoccupy the unit once the work is completed [Ordinance Section 37.9(a)(11)];
· To perform substantial rehabilitation of a building that is at least 50 years old, provided that the estimated cost of the proposed work is at least 75% of the cost of new construction [Ordinance Section 37.9(a)(12)]; and,
· To withdraw all rental units in a building from the rental market under the Ellis Act [Ordinance Section 37.9(a)(13)].
Landlords should seek the advice of an attorney experienced in this area of the law before asking a tenant to move or attempting an eviction. If a landlord evicts or tries to evict a tenant unlawfully, the landlord is subject to civil and/or criminal liability. The tenant may bring a civil action for an injunction, as well as actual and treble damages, and attorney fees. [Ordinance Section 37.9(f)] The landlord could also be found guilty of a misdemeanor, with a fine of not more than $1,000 and/or imprisonment in the County jail for up to six months. [Ordinance Section 37.9(e)]
Seller’s Duty to Disclose Eviction Grounds to Prospective Buyer
Whenever a San Francisco building with two or more residential units is offered for sale, the seller must disclose to any prospective purchaser the legal grounds for terminating the tenancy of each unit to be delivered vacant at the close of escrow and whether the unit was occupied by an elderly or disabled tenant at the time the tenancy was terminated. Disclosure on a flier or other document describing the property which is made available to prospective purchasers at each open house and any tour through the property will constitute compliance with the disclosure requirements. [Ordinance Section 37.10A(i)]
Relocation Payments Required for Certain No-Fault Evictions
[Ordinance Section 37.9C]
For notices to quit served on or after August 10, 2006, landlords are required to pay relocation expenses to tenants who are being evicted for any of the following reasons: owner/relative move-in [Ordinance Section 37.9(a)(8)]; demolition or permanent removal of the rental unit from housing use [Ordinance Section 37.9(a)(10)]; temporary removal of the rental unit from housing use in order to do capital improvement work [Ordinance Section 37.9(a)(11)]; and, substantial rehabilitation [Ordinance Section 37.9(a)(12)]. (Note: Relocation payments for Ellis Act evictions under Section 37.9(a)(13) remain subject to Ordinance Section 37.9A(e)(3), and are similar but not identical to the relocation provisions of Ordinance Section 37.9C.)
In 2006, each authorized occupant, regardless of age, who had resided in the unit for at least one year, was entitled to a payment of $4,500.00, with a maximum payment of $13,500.00 per unit. In addition, each elderly (60 years or older) or disabled tenant, and each household with one or more minor children, was entitled to an additional payment of $3,000.00.
Each year commencing March 1, 2007, the amount of these relocation payments is adjusted for inflation. Information regarding current relocation payment amounts can be obtained from the Rent Board by calling 415-252-4602 or by visiting our website at www.sfrb.org. A list of relocation payment amounts is also available at our office.
The landlord is required to give all occupants in the unit written notice of relocation rights on or before the date of service of the eviction notice and shall also provide a copy of Ordinance Section 37.9C. The landlord must file a copy of this notification with the Rent Board within 10 days after service of the notice, together with a copy of the eviction notice and proof of service upon the tenant. Within 30 days of receiving a tenant’s claim for the additional relocation payment because of disability, age, or having children in the household, the landlord must inform the Rent Board in writing of the tenant’s claim and whether or not the landlord disputes the claim.
General Eviction Notice Requirements
If a landlord is seeking to evict a tenant, the eviction notice must be in writing and must contain the following, as applicable:
· A notice to vacate must state the grounds under which possession of the unit is sought. [Ordinance Section 37.9(c)]
· The notice must state that advice is available from the Residential Rent Stabilization and Arbitration Board. [Ordinance Section 37.9(c)]
· California Code of Civil Procedure Section 1161 requires that a Three Day Notice for non-payment of rent must state the amount of rent due, plus the name, telephone number and address of the person to whom the rent payment should be made. Section 1161 additionally requires that if payment is to be made personally, the notice must provide the usual days and hours when the person to whom rent shall be paid is available to receive the rent payment. Alternatively, the notice must provide an account number in a financial institution into which the rental payment may be made or state that payment may be made pursuant to a previously established electronic funds transfer procedure.
· For temporary evictions to perform capital improvements or rehabilitation work, the landlord shall advise the tenant in writing that the permit application(s) and plans are on file and available for inspection at the Central Permit Bureau of the Department of Building Inspection. In addition, copies of all necessary permits, a description of work to be done, and the approximate date when the tenant can reoccupy the unit must be given to the tenant on or before the date of service of the notice to vacate. [Ordinance Section 37.9(a)(11); Rules and Regulations Section 12.15(b)(1)]
· For owner/relative occupancy evictions, the landlord must comply with additional notice requirements as set forth below and in Rent Ordinance Sections 37.9(a)(8), 37.9(i)(4), 37.9(j)(3) and 37.9B(c).
A copy of all notices to vacate except Three Day Notices to Pay Rent or Quit, and a copy of any additional written documents informing the tenant of the grounds under which possession is sought, must be filed with the Rent Board within ten days following service of the notice to vacate. [Ordinance Section 37.9(c)]
There may be other state law requirements governing eviction notices that are not covered here. Landlords are advised to seek legal advice regarding the preparation of a proper eviction notice.
Notice Requirements for Evictions Based on Owner or Relative Move-In
In addition to general eviction notice requirements, there are specific requirements set forth in Ordinance Section 37.9B(c) and/or Rules and Regulations Section 12.14(b) for eviction notices for owner or relative move-in:
· The notice must be filed with the Rent Board, accompanied by a proof of service on the tenant, within ten days of service of the notice on the tenant.
· The notice must state the identity and percentage of ownership of all persons holding a full or partial percentage ownership in the property.
· The notice must also state the dates the percentages of ownership were recorded.
· The notice must list the names of the owners endeavoring to recover possession and, if applicable, the name and relationship of each relative for whom possession is being sought and a description of the current residence of the landlord or relative.
· The notice must include a description of all residential properties owned, in whole or in part, by the landlord and, if applicable, a description of all residential properties owned, in whole or in part, by the landlord’s relative for whom possession is being sought.
· A copy of Ordinance Section 37.9B must be included or attached to the notice.
· The notice must advise the tenant of required relocation expenses, as provided in Ordinance Section 37.9C.
· The notice must include the current rent for the unit and a statement that if the rental unit is offered for rent during the three-year period following service of the notice to vacate, the tenant has the right to re-rent the unit at the same rent plus any allowable increases. Displaced tenants should keep the landlord and the Rent Board apprised of their current address.
· In addition, pursuant to Ordinance Sections 37.9(i)(4) and 37.9(j)(3), the notice must include a warning that the tenant must advise the landlord in writing within 30 days if the tenant is claiming a “protected status” under Section 37.9(i) (due to age and/or disability and length of tenancy) and/or Section 37.9(j) (based on length of tenancy and occupancy of a child under the age of 18), and that the failure to do so will be deemed an admission that the tenant is not protected.
Other Requirements for Evictions Based on Owner or Relative Move-In
[Ordinance Sections 37.9(a)(8) and 37.9(i)&(j)]
An owner who seeks to recover possession of a unit for an owner or relative to move in must do so in good faith, without ulterior motive and with honest intent. The owner or relative must move into the unit within three months and occupy the unit as that person’s principal residence for at least 36 continuous months. [Ordinance Sections 37.9(a)(8)(i), (ii) & (v)] Failure of the owner or relative to move in or occupy the unit for the full 36-month period shall create a rebuttable presumption that the landlord did not act in good faith. [Ordinance Section 37.9(a)(8)(v)]
If a comparable unit owned by the landlord is vacant or becomes vacant and available before recovery of possession, then the notice must be rescinded and the landlord may not recover possession of the unit for owner or relative occupancy. If there is a vacant, non-comparable unit owned by the landlord in San Francisco, the landlord may evict the tenant for owner or relative occupancy but only if the non-comparable unit is offered to the tenant being evicted. [Ordinance Section 37.9(a)(8)(iv)]
Owners may evict for a family member including the owner’s spouse, child, parent, grandparent, grandchild, sibling, or the spouses of such relations. The term “spouse” includes domestic partners. Owners who evict for a family member to move in must already live in the building or be moving into the building at the same time as the relative. [Ordinance Section 37.9(a)(8)(ii)]
An owner who wishes to evict a tenant for owner or relative occupancy must have at least a 25% interest in the building, if the ownership interest was recorded after February 21, 1991. If ownership was recorded on or before February 21, 1991, then the owner is only required to have a 10% minimum interest. Domestic partners can combine their interests to achieve the required 10% or 25% interest in order to occupy a unit. [Ordinance Sections 37.9(a)(8)(iii)]
The Ordinance generally permits the eviction of tenants from only one unit for the owner's use and occupancy after December 18, 1998, and designates that unit as the owner’s unit for purposes of any subsequent owner occupancy evictions. [Ordinance Section 37.9(a)(8)(vi)]
Tenants who are at least 60 years old or who meet the disability guidelines for federal Supplemental Security Income/California State Supplemental Program (SSI/SSP) and who have lived in the unit for at least 10 years, OR tenants who are catastrophically ill and who have lived in the unit for at least 5 years, have a protected status and cannot be evicted for either the owner or the owner's relative to move into a building of 2 units or more. Tenants who would otherwise have protected status may be evicted if the unit is a single-family home or is the only rental unit owned by the landlord in the building, or if the landlord’s qualified relative who will move in is 60 years of age or older and each rental unit owned by the landlord in the same building (except the unit occupied by the landlord) is occupied by a tenant with protected status. [Ordinance Section 37.9(i)(1) & (2)]
A tenant who has resided in the unit for at least one year, and has a child under the age of 18 who also resides in the unit, has protected status and may not be evicted during the school year for an owner or relative move-in eviction. However, there are two exceptions: an owner move-in eviction may proceed if there is only one unit owned by the landlord in the building; or, if there are multiple units in the building, an owner move-in eviction may proceed if the owner will move into the unit with a minor child. These exceptions do not apply to relative move-in evictions. [Ordinance Section 37.9(j)(1) & (2)]
The eviction notice for owner/relative move-in must inform the tenant of the restrictions in Ordinance Sections 37.9(i) and 37.9(j). Any tenant who claims to have a protected status must notify the owner of the tenant’s protected status within 30 days of receiving either a notice to vacate or a written request from the owner to declare the tenant’s status. [Ordinance Sections 37.9(i)(4) and 37.9(j)(3)] The tenant must also include evidence supporting the claim. Owners may challenge the tenant's claim of protected status through eviction proceedings in court or may file a request for determination of protected status with the Rent Board if the owner is seeking to recover possession of the rental unit for owner/relative move-in. In the Rent Board hearing or eviction action, the tenant has the burden of proof to show protected status. The tenant’s failure to submit a statement within the 30-day period shall be deemed an admission that the tenant does not have protected status. [Ordinance Sections 37.9(i)(4) and 37.9(j)(3)]
Within 30 days after the effective date of a written notice to vacate for owner or relative move-in, the Rent Board will record a Notice of Constraints with the County Recorder which states that the unit must first be offered to the displaced tenant and must be offered at the rent controlled amount if it is re-rented within three years after the notice to vacate was served on the tenant. [Ordinance Sections 37.9B(a) & (e)]
Each month the Rent Board will select a random sample of 10% of all notices which state owner or relative occupancy as the reason for eviction. This list will be transmitted to the District Attorney for possible investigation. [Ordinance Sections 37.6(k) and 37.9(c)] It is also a misdemeanor to refuse to rent to someone because the age of the prospective tenant would result in the person acquiring rights under the Rent Ordinance. [Ordinance Section 37.10A(b)]
Evictions Based on Breach of Lease Involving
Material Change in Original Lease Term
[Ordinance Section 37.9(a)(2); Rules and Regulations Section 12.20]
The Rent Ordinance generally allows the landlord to evict a tenant for breach of a rental agreement or lease after the landlord gives the tenant an opportunity to cure the breach and the tenant fails to do so. However, a landlord may not evict a tenant because of the tenant’s breach of a lease where the term or condition in dispute is materially different from the original lease and was unilaterally imposed by the landlord and not agreed to by the tenant.
This prohibition on evictions for breach of a lease provision added after the initial agreement does not apply where the breach involves: (1) changes in the lease that are not material; (2) a material change in the lease that was required by law or to protect the health, safety or quiet enjoyment of the occupants of the building or adjoining properties; or (3) a material change in the terms of a tenancy that is authorized under the Rent Ordinance and/or the Rules and Regulations, such as an annual allowable rent increase.
Evictions Based on Breach of No Subletting Clause and/or
Breach of Occupancy Limits [Ordinance Section 37.9(a)(2)]
Although the Rent Ordinance generally allows the landlord to evict a tenant for breach of a rental agreement or lease, a tenant cannot be lawfully evicted for breach of a “no subletting” clause in the lease if the landlord has unreasonably withheld consent to a replacement roommate, provided that the tenant made a written request to the landlord to sublet, the tenant continues to reside in the unit and the sublet constitutes a one-for-one replacement of a departing roommate. If the landlord fails to respond to the tenant in writing within 14 days of receipt of the tenant's request to replace a roommate, the tenant's request shall be deemed approved by the landlord and the landlord cannot evict the tenant for breach of the “no subletting” clause. The above requirements do not apply to assignment or subletting of the entire unit and do not create the right to increase the number of occupants, unless the additional occupant is a specified family member or domestic partner. [Ordinance Section 37.9(a)(2)(A)]
A tenant cannot be lawfully evicted for breach of a no subletting clause or a provision limiting the number of occupants in the unit as a result of the addition to the unit of a tenant’s child, parent, grandchild, grandparent, brother or sister, or the spouse or domestic partner of such relatives or as a result of the addition of the spouse or domestic partner of a tenant, so long as the number of occupants does not exceed certain occupancy limits specified in the Rent Ordinance (i.e. two persons in a studio unit, three persons in a one-bedroom unit, four persons in a two-bedroom unit, six persons in a three-bedroom unit, eight persons in a four-bedroom unit) or the maximum number permitted in the unit under state law and/or local codes. The additional family member must meet the regular, reasonable application standards of the landlord, except that lack of creditworthiness shall not be a basis to refuse a tenant’s written request unless the additional family member will be legally liable to pay rent to the landlord. [Ordinance Sections 37.9(a)(2)(B)]
Temporary Eviction for Capital Improvements
[Ordinance Section 37.9(a)(11)]
A landlord may recover possession of a rental unit if the landlord seeks in good faith and without ulterior motive to temporarily remove the unit from housing use in order to carry out capital improvements or rehabilitation work. [Ordinance Section 37.9(a)(11)] Such an eviction is allowed only if the premises will be hazardous, unhealthy and/or uninhabitable while the work is in progress. If there is a dispute between the landlord and the tenant as to whether the proposed work will create a hazardous or unhealthy environment, the tenant may file a Report of Alleged Wrongful Eviction at the Rent Board. [Rules and Regulations Section 12.15(a)]
In order to evict for capital improvement work, the landlord must obtain all the necessary permits before a notice to vacate is given. [Ordinance Section 37.9(a)(11)] Copies of all necessary permits, a description of the work to be done and a reasonable approximate date when the tenant can reoccupy the unit shall be given to the tenant on or before the date the notice to vacate is served. The landlord must also advise the tenant in writing that the rehabilitation or capital improvement plans are on file with the Central Permit Bureau of the Department of Building Inspection and that arrangements for reviewing such plans can be made. [Rules and Regulations Section 12.15(b)(1)]
Any landlord who seeks to recover temporary possession of a unit in order to carry out capital improvements shall pay relocation expenses as provided in Ordinance Section 37.9C.
The tenant will be required to vacate the unit only for the minimum time required to do the work, which shall not exceed three months unless the time is extended by the Rent Board pursuant to a petition filed by the landlord. [Rules and Regulations Section 12.15(b)(2)] If, prior to giving the notice to vacate, the landlord knows or should know that the work will require the removal of the tenant for more than three months, the landlord must file a Petition for Extension of Time with the Rent Board before giving the notice to vacate. If, after the notice to vacate has been given or after the work has commenced, it becomes apparent that the work will take longer than three months (or longer than the time approved by the Rent Board in a prior Petition for Extension of Time), the landlord must immediately file a Petition for Extension of Time along with a statement explaining why the work will take more time. A hearing shall be promptly scheduled to determine the reasonableness of the landlord’s time estimate. The Petition for Extension of Time must be accompanied by copies of all necessary approved building permits; a written breakdown of the work to be performed and the location and cost of the work; an estimate of the time needed to complete the work; and the approximate day and month when each tenant may reoccupy. [Rules and Regulations Section 12.15(e)]
Any tenant who vacates the unit for capital improvement or rehabilitation work shall have the right to reoccupy the unit at the prior rent, plus any allowable annual increases. (The landlord can also file a petition to increase the rent for any capital improvement costs that are not reimbursed by insurance proceeds.) Immediately upon completion of the improvements, the landlord must advise the displaced tenant in writing that the unit is ready for reoccupancy. The tenant shall have 30 days from receipt of the landlord’s offer of reoccupancy to notify the landlord of acceptance or rejection of the offer and, if accepted, shall reoccupy the unit within 45 days of receipt of the landlord’s offer. If the landlord fails to allow a displaced tenant to reoccupy the premises within three months or within the time period authorized by a Rent Board decision on a landlord’s Petition for Extension of Time, the tenant may file a Tenant Petition for Arbitration based on decreased housing services at the Rent Board. The tenant may be entitled to a rent reduction equivalent to the difference in rent between the unit from which the tenant was displaced and the replacement unit. [Rules and Regulations Section 12.16]
Evictions Based on Substantial Rehabilitation
[Ordinance Section 37.9(a)(12); Rules and Regulations Section 1.18]
A landlord may recover possession of a rental unit in order to perform substantial rehabilitation of a building containing essentially uninhabitable residential rental units of 50 or more years of age which require substantial renovation in order to conform to contemporary standards for decent, safe and sanitary housing. Cosmetic improvements alone such as painting, decorating and minor repairs, or other work which can be performed safely without having the units vacated, do not qualify as substantial rehabilitation.
For purposes of eviction, improvements will not be deemed substantial unless the estimated cost of the proposed work equals or exceeds 75% of the cost of newly constructed residential buildings of the same number of units and type of construction, excluding land costs and architectural/engineering fees, based upon construction cost data reported by Marshall and Swift. Costs covered by insurance may not be counted as part of the estimated cost. For purposes of such evictions, there shall be a rebuttable presumption that the cost stated for the work in the applicable approved construction permits is the estimated cost of the proposed work, and the Marshall and Swift schedule in effect on the date the notice to vacate is served shall apply.
Any landlord who seeks to recover possession of a unit in order to perform substantial rehabilitation shall pay relocation expenses as provided in Ordinance Section 37.9C. In addition, a landlord who recovers possession of a rental unit in order to perform substantial rehabilitation must file a petition with the Rent Board for exemption based on substantial rehabilitation within the earlier of either two years following recovery of possession of the rental unit or one year following completion of the work. A landlord who fails to file a petition within such time and thereafter obtain a determination of exempt status from the Board shall be rebuttably presumed to have wrongfully recovered possession of the tenant’s rental unit in violation of the Ordinance.
Evictions Pursuant to the Ellis Act
[Ordinance Sections 37.9(a)(13) and 37.9A]
The Ellis Act is found in California Government Code Section 7060, et seq. It was enacted by the California legislature in 1986 to require municipalities to allow property owners to go out of the residential rental housing business.
Pursuant to the Ellis Act, San Francisco has enacted a procedure in the Rent Ordinance that owners must follow if they are going to evict tenants so that they can go out of the rental housing business. The following procedures are required:
Step 1: The owner must serve the tenants with notices of termination of tenancy requiring the tenants to quit the premises on the effective date of withdrawal, which is 120 days after the Notice of Intent To Withdraw Residential Units from the Rental Market is filed with the Rent Board as required in Step 2. The notice of termination must inform tenants of the right to relocation assistance, one half of which must be paid at the time of service of the notice of termination. (Relocation payment amounts are published by the Rent Board and are adjusted annually on March 1.)
Step 2: The owner must file a Notice of Intent To Withdraw Residential Units from the Rental Market (“Notice of Intent”) with the Rent Board.
Step 3: Within fifteen (15) days of filing the Notice of Intent (Step 2), the owner must inform the tenants that the Notice of Intent was filed with the Rent Board, that the tenants have certain re-occupancy and relocation assistance rights, and that elderly or disabled tenants who have lived in the unit for at least one year have the right to extend the date of withdrawal from 120 days to one year.
Step 4: Within sixty (60) days of filing the Notice of Intent, elderly or disabled tenants must give written notice to the owner of their entitlement to an extension of the date of withdrawal from 120 days to one year.
Step 5: Within thirty (30) days of receipt of a tenant’s claim to an extension of the date of withdrawal, the owner must give written notice of the claim to the Rent Board.
Step 6: Within ninety (90) days of filing the Notice of Intent, the owner must give written notice to the Rent Board and the tenants as to whether or not the owner disputes a tenant’s claim to an extension. The notice must also state whether the owner is extending the date of withdrawal for other units in the building.
Step 7: Prior to the effective date of withdrawal, the owner shall record a Memorandum summarizing the Notice of Intent with the County Recorder.
Step 8: Withdrawal of the rental units is effective 120 days after the filing of the Notice of Intent, or one year after the filing of the Notice of Intent for qualified elderly or disabled tenants and any other units for which the landlord has voluntarily extended the date of withdrawal. The second half of the required relocation assistance shall be paid when the tenant vacates the unit.
Step 9: After the effective date of withdrawal, the owner can file an unlawful detainer eviction action to recover possession of a withdrawn rental unit if the tenant has not vacated the unit.
Step 10: Within thirty (30) days after the effective date of withdrawal, the Rent Board will record a Notice of Constraints with the County Recorder.
Pursuant to the Ellis Act, the Notice of Constraints imposes a 5-year period of vacancy control from the effective date of withdrawal. If the Ellis filing is rescinded, the 5-year period of vacancy control runs from the date of filing of the Notice of Intent with the Rent Board. Upon written request to the landlord, a displaced tenant has the right of first refusal if the unit is put back on the rental market within 10 years of the effective date of withdrawal. In such case, the landlord can charge only the rent-controlled rent within the first five years, but can charge market rent during the next five years.
Information regarding current relocation payment amounts can be obtained from the Rent Board by calling 415-252-4602 or by visiting our website at www.sfrb.org. A list of relocation payment amounts is also available at our office.
Violation of the provisions governing the withdrawal of units under the Ellis Act may subject the owner to liability for actual and punitive damages. Please refer to Ordinance Sections 37.9(a)(13) and 37.9A for more information.
Evictions of Roommates and Subtenants
An owner who resides in the same rental unit with his or her tenant may evict the tenant without just cause. [Ordinance Section 37.9(b)] However, if an owner rents to more than one roommate, each room may constitute a separate rental unit, and the owner may need a just cause reason under the Ordinance to evict any of the roommates.
A master tenant who resides in the same rental unit with his or her subtenant may evict the subtenant without just cause only if the tenancy began before May 25, 1998. For any such tenancy commencing on or after May 25, 1998, the master tenant may not evict a subtenant without just cause unless the master tenant disclosed in writing to the subtenant that the tenancy is not subject to the just cause eviction provisions of the Ordinance prior to the commencement of the tenancy. [Rules and Regulations Section 6.15C(1)] Master tenants must always comply with state law unlawful detainer procedures in order to lawfully evict a subtenant.
Only landlords are allowed to evict their tenants. Since a master tenant is considered a landlord in relation to his or her subtenant, a master tenant is able to evict a subtenant. Subtenants do not have the right to evict their master tenant or other subtenants or roommates. Similarly, roommates who are co-tenants cannot evict their fellow co-tenants.
Unlawful Detainer Actions in Court
A landlord seeking to evict a tenant from a rental unit covered by the Rent Ordinance must have a “just cause” reason for the eviction and must give the tenant a written notice to terminate the tenancy. If the tenant does not voluntarily move out at the end of the notice period, the landlord must file a lawsuit known as an Unlawful Detainer action in court in order to remove the tenant from the rental unit. A copy of the Unlawful Detainer Summons and Complaint must be served on the tenant, and the tenant has five days to file a written response in court. The court will set the case for a trial at which time the tenant can present his or her defense. If a response is not filed on time, the landlord may obtain a default judgment against the tenant, which may result in a quicker eviction. If the tenant loses at trial, the court will order the tenant to vacate the rental unit. The Sheriff may then post a Notice to Vacate and evict the tenant if the tenant does not comply with the Notice.
The landlord may not physically remove or lock out a tenant, cut off utilities such as water or power, or take the tenant's belongings in order to force a tenant to move. The landlord must use the courts in order to evict a tenant. The eviction process can take from one month to many months, depending on whether the landlord proceeds correctly and whether the tenant exercises his or her rights in a timely fashion.
It is strongly recommended that tenants and landlords seek legal assistance in any eviction action. The Rent Board does not provide legal advice or any representation in an eviction action. Any action taken by the Rent Board in response to a Report of Alleged Wrongful Eviction filed with the Board does not delay or prevent the Unlawful Detainer action. While the Rent Board cannot provide legal advice or make a referral to individual attorneys, staff can provide appropriate resources for advice and assistance.
If a landlord seeks to recover, or actually recovers, possession of a rental unit and is found in violation of the Rent Ordinance, the landlord may be subject to liability for any actual damages caused to the tenant, including mental or emotional distress, treble damages, and attorney fees. [Ordinance Section 37.9(f)] The landlord could also be found guilty of a misdemeanor, for which he/she may be punished by a fine of not more than $1,000 or by imprisonment in the County jail for a period of not more than six months, or both. [Ordinance Section 37.10A(i)]
Tenant Allegations of Wrongful Eviction – Rent Board Process
If a tenant believes an eviction or attempted eviction is in violation of the Rent Ordinance, the tenant may file a Report of Alleged Wrongful Eviction on a form available from the Rent Board. The Board will then send a notice to the landlord acknowledging receipt of the tenant’s report and summarizing the rights and responsibilities of the landlord and tenant regarding the eviction. The Board will also request a written response from the landlord to the tenant’s allegation of wrongful eviction.
It should be noted that the filing of a Report of Alleged Wrongful Eviction with the Rent Board does NOT prevent the landlord from pursuing an eviction through the courts. Tenants are strongly advised to obtain legal counsel in any eviction proceeding.
The Rent Board staff will investigate a Report of Alleged Wrongful Eviction to determine if there is evidence of any of the following:
· whether the landlord is evicting more than one tenant at approximately the same time;
· whether the eviction is in retaliation for a dispute arising from a tenant's exercise of his or her rights under the Ordinance;
· whether a dispute over the proper interpretation of the Ordinance is involved;
· whether the eviction was effected by fraud or in bad faith; or
· whether a policy issue of city-wide importance is raised.
If any of these criteria are met and there is evidence of an unlawful eviction, the matter may be scheduled for an investigatory hearing before an Administrative Law Judge. After the hearing, the Administrative Law Judge will prepare a summary of the evidence for the consideration of the Rent Board Commissioners. The Commissioners may decide to hold additional hearings, to commence legal action against the landlord, to make a referral to the District Attorney for criminal prosecution, or to take no further action.
If no evidence of an unlawful eviction is found after the investigation of a Report of Alleged Wrongful Eviction, the tenant will be so informed and the case will be closed.