Fact Sheet 8 - Hearings, Mediations and Appeals
The San Francisco Rent Ordinance regulates rents and evictions for certain residential rental units in San Francisco. The Rent Board is the City agency responsible for administering the Rent Ordinance. The Rent Board's primary function is to conduct hearings and mediations of tenant and landlord petitions regarding the adjustment of rents under the City's rent control laws. The Rent Board may also conduct investigatory hearings on Reports of Alleged Wrongful Eviction, although the Rent Board's authority in such matters is limited since only a Court can decide whether an eviction is legal.
All petitions must be submitted on the Rent Board's standard forms, which are available at our office or through our Fax Back system by calling 415.252.4660 or on our website at www.sfgov.org/rentboard. Some of our petition forms are translated into Spanish and Cantonese. It is essential that all forms be filled out completely and legibly. Failure to submit a completed petition or to provide requested information may result in the administrative dismissal of your petition or a delay in scheduling it for hearing or mediation.
The Rent Board conducts arbitration hearings on the following types of petitions filed by landlords:
- Capital Improvement Passthrough;
- Operating and Maintenance Expense Increase;
- Special Circumstances Increase Based on Rents for Comparable Units;
- Rent Increase Based on the Past Rent History of a Proposition I Affected Unit;
- Utility Passthrough (Note: Most of these petitions are decided on the documents without a hearing.);
- Rules and Regulations Section 1.21 Increase where there is no Tenant in Occupancy;
- Substantial Rehabilitation Certification for Exemption from the Ordinance;
- Extension of Time to Complete Capital Improvement Work;
- Determination Pursuant to Costa-Hawkins Rental Housing Act and/or Rules and Regulations Section 6.14;
- Determination of Building's Exempt Status;
- Determination of the Tenant's Current Lawful Rent;
- Determination of Tenant's Protected Status from an Owner/Relative Move-in Eviction under Ordinance Section 37.9(i); and
- Request for Approval of Supplemental Hotel Visitor Policy for SRO.
There are several types of claims that a tenant may assert against his or her landlord by filing a petition at the Rent Board. In many cases, the petition is resolved after a mediation session, although sometimes an arbitration hearing before an Administrative Law Judge is required.
The tenant may combine more than one type of claim in a Tenant Petition. The types of claims that may be included in the petition are:
- Substantial Decrease in Housing Services without a Corresponding Decrease in Rent;
- Failure to Repair and Maintain, as Required by State or Local law;
- Unlawful Rent Increase or Request for Determination of Lawful Rent;
- Improper Utility Passthrough;
- Improper Water Revenue Bond Passthrough;
- Improper General Obligation Bond Measure Passthrough;
- Failure to Discontinue a Capital Improvement Passthrough;
- Section 6.15C(3) Proportional Rent Claim by a Subtenant Against a Master Tenant;
- Unlawful Initial Rent Claim by a Subtenant; and
- Non-compliance with Uniform Hotel Visitor Policy or Approved Supplemental Visitor Policy.
The following types of claims may also be filed by tenants at the Rent Board, although they may not be scheduled for a hearing or mediation:
- Tenant Summary Petition Based on Receipt of Invalid Notice of Rent Increase; and
- Report of Alleged Wrongful Eviction
Please note that the Rent Board cannot decide matters that are not covered by the Rent Ordinance. For example, the Rent Board does not adjudicate issues that are not related to the amount of rent charged, such as harassment, discrimination and retaliation. The Rent Board also does not adjudicate issues involving security deposits. Such matters must be decided in court or another forum.
The Hearing Process
The Rent Board hearing process begins with the filing of a landlord or tenant petition. The Rent Board staff reviews the petition to make sure it is complete. Sometimes, a staff member will contact the petitioning party for clarification of the petition and/or additional documentation.
The Rent Board sends a copy of the petition to the other parties named in the petition. Generally, attachments and supporting documents are not sent to the parties. These documents are retained as evidence in the Rent Board file, which the parties may review during business hours before the hearing. The parties may also file a written request for a copy of any document in the file for a nominal charge. It is recommended that any party wishing to review a file should contact the office in advance to verify the availability of the file, since the Administrative Law Judge may be reviewing it to prepare for the hearing.
A petition is scheduled either for an arbitration hearing or a mediation session. This section addresses only the arbitration hearing process; the mediation process is discussed below. For petitions that are assigned to arbitration, the Rent Board sends a Notice of Hearing to all parties and representatives at least 10 days before the hearing. Requests for postponement of the hearing must be submitted in writing and will be granted only when there is good cause, such as travel plans or other commitments made prior to receipt of the Notice of Hearing. Documentation of conflicting plans must be submitted with the request for postponement. Mere inconvenience or difficulty in appearing do not constitute good cause for a postponement.
Parties can - and usually do - present their case without an attorney, although parties are entitled to have an attorney or other authorized representative assist them at the hearing. The parties or their representatives are permitted to present testimony and evidence, and to cross-examine the other parties and their witnesses. The Administrative Law Judge may also ask questions of the parties and witnesses to ensure that all pertinent facts are brought out. Testimony is given under oath and the hearing is tape-recorded. At the end of the hearing, the Administrative Law Judge may hold the record open for the submission of additional evidence.
The Administrative Law Judge is not permitted to speak to anyone privately about the case or to consider evidence outside of the official record. All submissions to the Administrative Law Judge after the hearing must be provided to the other parties and be accompanied by a written proof of service of the submission on the other parties. The Rent Board has a Proof of Service form that can be used by the parties. To receive a copy of the Proof of Service form, you can fax it to yourself by calling 252-4660 or visit our website at www.sfgov.org/rentboard.
After the record is closed, the Administrative Law Judge will issue a written decision that will be mailed to all the parties and their representatives. If no appeal is filed, the decision becomes final. If an appeal is filed, portions of the decision may be stayed until the Rent Board Commission decides the appeal. The appeal process is discussed below.
In an effort to reduce the time period between the hearing date and the issuance of the Administrative Law Judge's written decision, the Rent Board offers a voluntary Minute Order program. A Minute Order is an abbreviated decision that is generally issued more quickly than a full decision, because the Administrative Law Judge is not required to write detailed findings of fact and conclusions of law. Instead, the Administrative Law Judge prepares a short written order setting forth only the ultimate rights, responsibilities and liabilities of the parties. Minute Orders are generally issued within 14 days of the hearing or record close date.
Minute Orders are not appropriate in many cases and it is entirely within the Administrative Law Judge's discretion to decide whether a Minute Order should be issued in a particular case. Some of the factors considered are: the complexity of the issues in the case; whether the evidence is clear; whether the petition is contested; and whether the parties could understand the ruling without the benefit of a full analysis. If the Administrative Law Judge concludes that a Minute Order would be appropriate in the case, the Administrative Law Judge will inform the parties at the conclusion of the hearing and ask the petitioning party if he or she would like to have a Minute Order instead of a Full Decision. The petitioning party has the right to decline a Minute Order, but does not have a right to insist on a Minute Order.
There is no direct appeal from a Minute Order, except for an appeal based on financial hardship. Otherwise, if a party wants to appeal a Minute Order, the following procedure must be followed. Within 15 calendar days of the issuance of a Minute Order, the party who wants to appeal must file a Request for Full Decision on a form provided by the Rent Board. The purpose of requesting a full decision is not to seek a change of the ruling in the Minute Order or to submit new evidence. The ruling in a full decision will be consistent with the ruling in the Minute Order, but will explain the ruling more fully, in the traditional decision format. If a timely Request for Full Decision is received at the Rent Board, a full Decision will issue within 45 calendar days from the day of receipt of the Request for Full Decision. The full decision can then be appealed within 15 days of issuance, in accordance with regular Rent Board appeal procedures. If a Request for Full Decision is not filed within the prescribed time period, the Minute Order shall become the final Order of the Board, and cannot be appealed.
The Mediation Process
The Rent Board offers mediation as an alternative to an arbitration hearing in certain types of cases. Most tenant petitions based on decreased housing services and/or the landlord's failure to repair and maintain the premises are scheduled for a mediation session instead of an arbitration hearing. It has been the Rent Board's experience that these types of cases are the most suitable for resolution through the mediation process.
Mediation is a confidential process whereby a neutral party, known as a mediator, meets with people who are in conflict and helps them to reach a mutually satisfactory resolution. The mediator acts as a guide, facilitating communication between the parties. Unlike an administrative law judge, a mediator does not make decisions for the participants. Instead, the parties make their own decisions as to how to resolve their differences, which is usually more satisfying to people. Because participants in a mediation can fashion their own agreements, the risks and uncertainty inherent in arbitration can be avoided. Sometimes, the mediator will meet separately with the participants during the mediation session in order to help them analyze their options and evaluate the risks associated with each option.
Parties often prefer mediation over arbitration because it is more flexible. In a mediation, the parties can negotiate for results that might not be permissible in an arbitration. For example, in a Rent Board mediation, the participants can agree to a schedule for certain repairs, whereas in an arbitration, the Administrative Law Judge can only grant the tenant a rent reduction for lack of repairs, but has no authority to require the landlord to make the repairs.
Mediation often helps re-establish the relationship between the parties and provides guidance for dealing with future problems. Since mediation is more informal than arbitration, the participants are free to air their concerns even if they do not directly relate to the issues raised in the petition. Mediation, by its very nature, produces more of a win-win result than arbitration, and therefore it can be a step toward improving, rather than exacerbating, the landlord/tenant relationship.
Another advantage of mediation over arbitration is that the process is quicker because it can result in an immediate and binding agreement that is not subject to appeal. The Rent Board mediator usually prepares the agreement for the parties during the mediation session, so the parties will leave the Rent Board with a final agreement in hand. Occasionally, the parties are unable to reach agreement after participating in a mediation session. In such cases, the petition will be scheduled for a separate arbitration hearing within about 30-60 days.
Other Aspects of Mediation:
- The process is confidential - nothing is tape-recorded except for the agreement itself, unless both parties agree that the agreement should also be kept confidential.
- Mediation at the Rent Board is strictly voluntary - if all parties do not agree to mediate, an arbitration hearing will be held that day instead of a mediation session.
- One person can represent others, provided that they are authorized in writing to do so.
- Mediation agreements are written to be self-enforcing. For example, an agreement may state that if the window is not repaired within 30 days, then the rent can be reduced by $25 per month until it is repaired.
- Mediation agreements prepared at the Rent Board are enforceable in Court.
Although a mediation session can take anywhere from a few hours to a full day, the resulting agreement is immediate and final. Participants can reduce the amount of time the process takes by being prepared for the mediation session. Before the mediation session, each party should determine what s/he is willing to do and what s/he really wants from the other party. It can be something as simple as improved communication or additional storage space.
Tips to Ensure a Successful Mediation:
- Be prepared to identify your issues clearly and concisely.
- Know what outcomes you want as a resolution.
- Be flexible - other solutions may arise during the mediation that are equally desirable.
- Be willing to listen to what others have to say.
Sometimes a party does not appear at the Rent Board for a properly noticed mediation session. If the petitioning tenant does not appear, the tenant's petition will be dismissed. If the landlord does not appear but the tenant does, of if the parties do not agree to mediate, an arbitration hearing will be held that day instead of the mediation. Therefore, it is important for both parties to be prepared for arbitration as well as mediation.
Interpreters at Arbitration Hearings and Mediation Sessions
Parties attending an arbitration hearing or mediation session at the Rent Board are required to provide their own interpreter. The Rent Board staff does not provide translation services at hearings or mediations. However, if a party is unable to afford the services of an interpreter, the Rent Board will hire an interpreter upon proof of the party's financial hardship. Hardship applications for interpreter services can be obtained at the Rent Board's office at 25 Van Ness Avenue, Suite 320 and must be filed at least 72 hours before the hearing or mediation.
American sign language interpreters are also available upon 72 hours request at no cost to the party.
The Appeal Process
After the conclusion of an arbitration hearing, the Administrative Law Judge issues a written decision setting forth findings of fact and conclusions of law which affect the rights and responsibilities of the parties. If a party believes the Administrative Law Judge's decision is in error, that an abuse of discretion occurred or that a financial hardship will arise if the decision stands, the party can appeal the decision to the Rent Board Commission, which is composed of tenant, landlord and neutral representatives appointed by the Mayor. The Commissioners will consider the appeal at a regularly scheduled public meeting.
For purposes of an appeal consideration, the Commissioners review the Administrative Law Judge's decision, the appeal and accompanying documents, any written submissions that were timely filed by the parties before the date of the appeal consideration and any written comments submitted by the Administrative Law Judge whose decision is being challenged. The Commissioners may also review other material from the administrative record, as it deems necessary. No testimony is taken and no oral argument is permitted during the appeal consideration.
Appeals must be filed on the Rent Board appeal form within 15 days of the mailing of the decision. If the appeal is filed after this mandatory time limitation, a "good cause" reason for the late filing must be provided. The appeal should include the specific issues that the appealing party disagrees with and why s/he disagrees with the decision. The appeal should include all relevant evidence or explanations in an organized, concise and thorough manner.
The Appeal form contains instructions for filing an appeal, including the number of copies and envelopes required. To receive a copy of the Appeal form, you can fax it to yourself by calling 415.252.4660 or visit our website at www.sfgov.org/rentboard. The appeal form is also available at the Rent Board's office.
A non-appealing party may file a written response to an appeal filed by the opposing party. Responses should be filed at least one week prior to the appeal consideration date. A copy of the response must be sent to the opposing party at the same time. The appealing party may file a written reply to an opposing party's statements, which must also be served on the opposing party. Late submissions to the Commissioners of more than one page may not be reviewed.
Parties do not need to appear at the Rent Board Commission's meeting when the appeal of their decision is under consideration since no testimony or oral argument can be presented. Shortly after the appeal consideration date, the Rent Board will send the parties a Notice of Action on Appeal setting forth the Commissioners' decision on the appeal.
When the Commissioners consider an appeal, they may take any of the following actions:
- deny the appeal;
- remand the case to an Administrative Law Judge for further action;
- schedule an appeal hearing before the Commissioners; or
- order correction of numerical or clerical errors in the decision.
If a case is remanded to an Administrative Law Judge, a decision might be made on the existing record or there may be another hearing on some or all of the issues in the case. If the Commissioners decide to conduct an appeal hearing themselves, all parties will be able to present testimony, evidence and oral arguments at the hearing. The parties do not necessarily need an attorney for this proceeding, although everyone is entitled to obtain representation.
Any party aggrieved by a final action or decision of the Rent Board may seek judicial review by filing a Writ of Administrative Mandamus in the Superior Court, which must be done within 90 days of the date of mailing of the Rent Board's final decision.
Financial Hardship Appeals
In general, appeals based on financial hardship must be filed within 15 days after the decision is mailed. However, there is no time limitation for a tenant hardship appeal from a decision based on a capital improvement petition filed after February 20, 2003.
A tenant need not pay an approved rent increase while his or her hardship appeal is being processed and considered. However, if the tenant's appeal is denied, the tenant will have to pay the rent increase going back to the effective date listed in the rent increase notice.
Financial hardship appeals must include a Hardship Application form, in addition to the Appeal form. A Hardship Application form must be completely filled out for each adult in the household. To receive a copy of the Hardship Application and Appeal forms, you can fax them to yourself by calling 252-4660 or visit our website at www.sfgov.org/rentboard. You can also obtain the forms at our office.
It is not necessary to prove the amounts listed on the Hardship Application form at the time the hardship appeal is filed. However, should the Commissioners accept the appeal and remand the case for a hardship hearing, the appealing party will be required to submit documentation proving the veracity of the income, assets, resources, expenses and debts that are claimed. It is helpful if the appealing party submits his or her most recent tax return. See the Hardship Application form for additional requirements and information.
To determine tenant hardship, the Rent Board generally uses the federal government's HUD guideline that rent should comprise no more than 30-35% of gross income. If a tenant establishes that payment of a rent increase would constitute a financial hardship, the increase may be temporarily or permanently deferred, in whole or in part.
If a landlord establishes that a refund of rent overpayments to a tenant would constitute a financial hardship, the Administrative Law Judge may order a repayment plan for all or part of the refund. To determine landlord hardship, the Administrative Law Judge will consider the landlord's total financial picture, not just the income generated by the subject building. Landlords should be aware that financial hardship is grounds for appeal only - it is not grounds for a separate rent increase.