March 20, 2001
MINUTES OF THE REGULAR MEETING
OF
THE SAN FRANCISCO RESIDENTIAL
RENT
STABILIZATION & ARBITRATION
BOARD,
Tuesday, March 20, 2001 at 6:00 p.m.
at
25 Van Ness Avenue, Suite 70, Lower Level
I. Call to Order
President Wasserman called the meeting to order at
6:10 p.m.
II. Roll Call
Commissioners Present: Aung; Becker;
Hobson; Justman; Lightner; Marshall; Mosser; Wasserman.
Commissioners not Present: Murphy.
Staff Present: Helton; Lee; Wolf.
Commissioner Gruber appeared on the
record at 6:15 p.m.
III. Approval of the Minutes
IV. Remarks from the Public
Robert Pender of the Parkmerced Residents’ Organization
(PRO) informed the Commissioners that he and other tenants at Parkmerced had
received a copy of their landlord’s petition for rent increases based on increased
operating expenses, which will be heard on April 23rd and 25th.
Tenant Dian Hunter of 1520 Gough #605 told the Board of the stress she is
experiencing because of the noise and harassment she perceives from an upstairs
neighbor.
V. Consideration of Appeals
A. 134 Duboce #4 AT010009
The tenant’s petition alleging various decreased housing
services was denied. The tenant’s claim that the landlord had failed to make
requested repairs was granted, and the landlord was found liable to the tenant
in the amount of $37.81 for a one and one-half month period when code violations
existed on the premises. The tenant appeals, claiming that: parking was listed
as available in the advertisement for the unit; the repairs were not performed;
oral and written notice of the problems was provided to the landlord and the
landlord’s agent; the stove is inadequately ventilated; there are factual
inaccuracies in the Decision; and the Administrative Law Judge should have
considered his post-hearing claim regarding the landlord’s refusal to allow
him to obtain a roommate.
B. 1520 Gough #605 AT010010
The tenant’s petition alleging decreased housing services
due to noise from an upstairs neighbor was denied because the Administrative
Law Judge found that the tenant had failed to meet her burden of proving that
there is a problem, or that the landlord had failed to respond reasonably
to her complaints. On appeal, the tenant claims that the Administrative Law
Judge ignored her evidence that the upstairs tenant has continuously harassed
her for almost five years.
C. 1945-49-53-55 Lyon AT010012 & AL010011
The tenant’s appeal was filed 3 days late because
she calculated her due date from the date the Decision was postmarked, rather
than mailed.
The landlords’ petition for 5 of 6 units based on
increased operating expenses was granted, resulting in 7% increases in the
tenants’ base rents. It was determined, however, that the landlords’ notices
of rent increase were not legally valid and that proper notices must be re-issued.
The landlords appeal the determination that their notices of rent increase
were void, pointing out that their notices referenced the petition filed with
the Rent Board, which provided the tenants with actual notice as to the amount
of the increase they would be receiving. The tenant in one unit also appeals
the Decision, claiming that: she is being unfairly singled out because she
is the only tenant held liable for retroactive amounts owed; that recent legislation
requires that she be given 60-day notice; and that there are no evident benefits
to her from the alleged increased expenses.
MSC: To deny the landlords’ appeal. (Becker/Marshall:
3-2; Gruber, Lightner dissenting)
MSC: To deny the tenant’s appeal. (Gruber/Lightner:
3-2; Becker, Marshall dissenting)
D. 975 Sutter St. #3 AT010008
The tenants’ petition alleging decreased housing services
was granted in part and denied in part. The landlord was found liable in the
amount of $57.12 due to a broken front door which did not close and lock.
However, the tenant’s claim of a defective door buzzer was denied because
the Administrative Law Judge (ALJ) found that the tenants had failed to prove
that there was a problem, nor did they notify the landlord of the alleged
condition. On appeal, the tenants claim that their failure to enter into a
mediated settlement resulted in the ALJ’s having been prejudiced against them;
that the Findings of Fact in the Decision are contradicted by recorded testimony
at the hearing and actions of the landlord’s agents; and that the hearing
was not conducted in accordance with applicable law.
E. 740 Monterey Blvd. #111 AL010022
The landlord’s petition for certification of capital
improvement costs to 15 of 24 units was granted. The tenant’s appeal on the
grounds of financial hardship was granted and the Administrative Law Judge
found sufficient financial hardship to warrant a one-year deferral of the
passthrough, in order for the tenant’s adult daughter to obtain employment.
The landlord appeals the remand decision, asserting that: the tenant’s adult
daughter, who resides in the unit, failed to document her income; the tenant’s
five other adult children should be expected to aid in the payment of the
passthrough; and at the time the tenant moved in to the unit she was close
to retirement, and the rent at that time would have been greater than the
Social Security benefit she could have expected to receive.
F. 2136 Broderick St. AT010016 thru -21
The landlord’s petition for certification of capital
improvement costs to 12 of 20 units was granted, resulting in a $15.10 monthly
passthrough to most of the tenants. The tenants in six units appeal, claiming
that: the work was performed in order to correct code violations; the work
was necessitated by the deferred maintenance of the current owner; the structural/seismic
work was not performed in a lawful manner; work done in the basement presented
health risks to the tenants; and the documentation provided by the landlord
was inadequate.
G. 2460 Folsom, Unit A AT010023
The tenant’s petition alleging an unlawful increase
in rent was dismissed due to her failure to appear at the properly noticed
hearing. On appeal, the tenant claims that she fell ill on the day of the
hearing.
MSC: To accept the appeal and remand the case
for a new hearing; scheduling shall be done at the convenience of the
landlord as much as possible, and no further appeals will be accepted
from the tenant should she again fail to appear, absent extraordinary
circumstances. (Becker/Marshall: 4-1; Gruber dissenting)
H. 1670 Clay, Apts. 6 & 7 AT010013 & -14
The landlords’ petition for certification of capital
improvement costs was granted, in part. Two tenants appeal the Decision. The
tenant in unit #6 claims that the landlords waived their right to pass through
the costs of new windows in a confidential settlement agreement between the
parties in 1999. The tenant in unit #7 alleges that a closet bend (toilet
pipe) for which she was charged, was not replaced in her unit.
I. 350 Yerba Buena Ave. AL010015
The tenant’s petition alleging an unlawful rent increase
and decreased housing services was granted in part and denied in part. The
Administrative Law Judge found that the single family dwelling was not exempt
pursuant to Costa-Hawkins because the tenants moved in as roommates of an
individual who had lived in the unit since 1984, and therefore the tenancy
commenced prior to January 1, 1996. However, an increase in rent from $700
to $1,600 per month in May of 1998 upon the departure of the original tenant
was found to be lawful. A later rent increase for an additional occupant in
the unit was determined to be null and void and the landlord was found liable
to the tenant in the amount of $3,360.00. The tenant’s claim of decreased
housing services was granted only as to a leaking shower stall and the landlord
was found liable in the amount of $64.00 for this condition. On appeal, the
landlord argues that: there is a computational error in the Decision; the
premises are exempt pursuant to Costa-Hawkins; the landlord is entitled to
the noticed increase pursuant to the banking provisions of the Ordinance;
and the tenancy was created in 1998, and therefore the owner is entitled to
establish the initial and all subsequent rental rates.
J. 1720 Bryant St. AL010024
The landlords’ petition for rent increases based on
increased operating expenses for two units was granted, resulting in 7% increases
in the tenants’ base rents. However, rent overpayments in the amount of $1,329.78
were determined to be owing to the tenants in one unit due to a rent increase
imposed due to an additional occupant in the unit. On appeal, the landlords
maintain that the version of Rules and Regulations Section 6.13 in effect
at the time the rent increase was given did not preclude a rent increase for
an additional occupant, but applied to newborn children only.
VI. Communications
In addition to correspondence concerning cases on
the calendar, the Commissioners received the following communications:
A. A letter from the tenants at the Lombard Place
Apartments regarding their landlord’s pending petition for certification
of capital improvement costs.
B. An ad posted on Ebay offering to turn over a
rent controlled apartment to a subtenant for a $4,800 payment.
C. The office workload statistics for the month
of February, 2001.
VII. Director’s Report
The Commissioners were reminded that their Statements
of Economic Interest are due on April 2nd.
VIII. New Business
The Board discussed a Memorandum from Senior Administrative
Law Judges Tim Lee and Sandra Gartzman regarding the problem of owners rescinding
Ellis notices of withdrawal prior to the recording of a Notice of Constraints
against the property. By so doing, an owner is free to re-rent the vacated
units at market rent, thereby obtaining the benefits of an Ellis eviction
without any of the burdens. In the past, it has been staff’s practice to allow
an owner to rescind an Ellis notice of withdrawal in two circumstances: 1)
after the effective date of withdrawal, only upon a showing that one or more
of the existing tenancies was continuing; and 2) prior to the effective date
of withdrawal, without any showing as to the status of the existing tenancies.
In three recent cases, owners served Ellis eviction notices and filed notices
of intent to withdraw with the Rent Board. After the owners negotiated move-out
settlement agreements with the tenants in which the tenants waived all rights
under the Rent Ordinance and the Ellis Act, the owners requested to rescind
the Ellis notices prior to the effective date of withdrawal. Staff therefore
recommended that rescission should only be allowed upon a showing that one
or more of the existing tenancies was not terminated so that the owner did
not in fact withdraw all units from the rental market.
During the Board’s discussion of this proposal, Commissioner
Wasserman expressed concerns that the policy regarding rescission of an Ellis
notice of withdrawal had been silent, but was known to practitioners in this
area. It was the consensus of the Board, therefore, that owners in the three
pending cases should be allowed to rescind, but staff will make the public
aware that the Board is considering changing the prior policy regarding rescission.
Commissioner Becker asserted than an owner should "have to think long
and hard before Ellising", and Commissioner Marshall felt that an owner
should have to show that no tenancies were terminated due to receipt or threat
of an Ellis eviction notice. Commissioner Hobson felt that it can be counter-productive
in some circumstances not to allow an owner to rescind an Ellis filing, and
that it would be preferable to put in language to protect tenants who have
vacated their units prior to the owner’s rescission. Commissioner Lightner
suggested a letter to tenants telling them that their landlord subsequently
rescinded the notice of intent to withdraw, and informing them that they might
have a claim for wrongful eviction. The Board debated the question of how
many units should be required to remain in place in order to allow rescission,
and whether the amount of money the displaced tenant received pursuant to
settlement with the landlord should make any difference. As there was no consensus
on this question, Tim Lee was asked to draft a regulation without specifying
the number of units, to be discussed at the next meeting, and possibly put
out for Public Hearing thereafter.
IX. Old Business
A. Implementation of Prop. H, Including the Moratorium
Ordinance
The Board received a Memorandum from Senior Administrative
Law Judges Sandy Gartzman and Tim Lee outlining how staff will implement the
Moratorium on processing capital improvement petitions, to take effect April
1st. Included in the packet were copies of the Memoranda prepared
for the public, including: an Addendum to Landlord Capital Improvement Petitions
(for new filings); Memorandum to Tenants Regarding Landlord Petition for Certification
of Non-Seismic Capital Improvement Costs (for new filings); a Memorandum to
Landlords and Tenants Regarding Pending Capital Improvement and Combined Capital
Improvement/Operating and Maintenance Petitions for Which No Decision Has
Been Issued as of April 1, 2001 (for pending petitions); a Request for Continued
Processing (before Decision); a Memorandum to Landlords and Tenants Regarding
Pending Appeals of Capital Improvement Decisions (for pending appeals); and
a Request for Continued Processing (after appeal). The Commissioners thanked
Ms. Gartzman and Mr. Lee for all their hard work.
The Board discussed two proposals introduced by Commissioner
Lightner. The first, an addition to Rules Section 6.15, would require that
a master tenant who sublets a part of the unit pay his or her proportionate
share of the rent for the unit, in an effort to "preserve affordable
housing." Commissioners Marshall and Becker indicated that, while they
did not have a problem with the thrust of the new Section, they wanted to
make sure that the cause of action accrued to the sub-tenant only, and wouldn’t
be a basis for intervention between roommates on the part of the landlord.
The Board asked that staff review and work on refining the language of the
proposed subsection, which will be discussed at the April 24th
Board meeting.
The second proposal would amend Rules Section 1.21
by adding a "principal place of residence" requirement to the definition
of "tenant", and require that the tenant "permanently occupy"
the premises. The Commissioners asked that the City Attorney provide them
with a Memorandum on whether this can be accomplished through an amendment
to the Rules and Regulations, or whether an Ordinance change would be required.
IV. Remarks from the Public (cont.)
Robert Pender introduced a copy of a speech he delivered
at a meeting of P.R.O. held on Sunday, March 18th. In his speech,
Mr. Pender encouraged his fellow residents at Parkmerced to "fight back
and participate in defending our affordable housing."
Upon being informed of the recent death of Commissioner
Murphy’s father, President Wasserman expressed condolences on behalf of the
Board.
X. Calendar Items
March 27, 2001 - NO MEETING
April 3, 2001
5 appeal considerations
Old Business:
Ellis Rescission
XI. Adjournment
President Wasserman adjourned the meeting at 8:57
p.m.