Newly Amended Owner Move-In Legislation Signed - 2nd Revision to OMI - 8/20/98
NEWLY AMENDED OWNER MOVE IN LEGISLATION SIGNED-
SECOND REVISION TO OMI EFFECTIVE AUGUST 16, 1998
August 20, 1998
PLEASE NOTE: BECAUSE OF THE RECENT NUMBER OF CHANGES TO THE ORDINANCE, THE POSTED VERSIONS OF THE ORDINANCE ON OUR SITE INCLUDE THE SECTION 8 AMENDMENTS WHICH CHANGES THE NUMBERING SYSTEM, PARTICULARLY IN 37.9. YOU WILL NOTE THAT SECTION "G", WHICH WAS THE OMI MORATORIUM, IS NOW SECTION "I".
The Board of Supervisors amended the original OMI legislation which became law on January 29, 1998, was subsequently found by the courts to have denied due process to owners and raised a takings issue which was not made clear in the decision.
As a result of the court invalidating the law, the Board of Supervisors made some amendments to the law that requires a tenant who receives a owner move in notice to vacate to advise the owner within 30 days that they are a protected class under the OMI law. This includes anyone 60 years or older and has lived in the unit for at least 10 years, is disabled or catastrophically ill and has lived in the unit for at least five years. Tenants failing to give the owner notice as required will waive their right to protection under the OMI law.
This recent amendment, which took effect on August 16, 1998, has some very important points for anyone giving an owner move in notice to note. Failure to include the following information in an eviction notice could jeopardize the owner"s ability to recover the unit. Those points are as follows:
- Owners must advise the tenant in the notice to vacate of Section 37.9(g) and shall specifically refer to the section
- The notice must advise the tenant that s/he has 30 days in which to invoke protection under Section 37.9(g)
- The notice shall describe the manner in which the tenant must give notice to the landlord of the tenant"s claim. This includes letting the tenant know that they must serve a statement and supporting evidence on the landlord by mail or hand delivery that the tenant is (or is not) a member of one of the protected classes. The landlord must state the mailing address the tenant should respond to in the notice so that the tenant may respond if they desire.
The amendment also protects an owner who gives a notice to someone protected under the law and seeks to challenge the tenants claim of protected status (see Section 37.9(g)5(vi). At the owners option, a challenge of such claim may be done through a hearing at the Rent Board or through commencement of eviction proceedings.
Please read below to see the text of the new amendment. If you are seeking to evict someone who may be a protected class, it would behoove you to check with an attorney before you commence any action.
[Tenant Qualification Procedures for Temporary Moratorium on Owner/Relative Move-In Evictions of Senior, Disabled, or Catastrophically Ill Tenants] amending Section 37.9(g) of the San Francisco Administrative Code TO PROVIDE PROCEDURES TO QUALIFY SENIOR, DISABLED AND CATASTROPHICALLY ILL TENANTS FOR PROTECTION FROM EVICTION DURING THE TEMPORARY MORATORIUM ON EVICTIONS FOR OWNER/RELATIVE MOVE-INS; AND making clarifying and TECHNICAL CHANGES.
Be it ordained by the People of the City and County of San Francisco:
Section 1. San Francisco Administrative Code Section 37.9 is hereby amended to read as follows:
SEC. 37.9. EVICTIONS.
[Amended by Ord. No. 295-79 effective June 22, 1979; No. 358-80 effective August 24, 1980; No. 539-80 effective December 11, 1980; No. 4-82 effective February 7, 1982; No. 268-82 effective July 10, 1982; No. 498-82 effective November 11, 1982; No. 438-83 effective October 2, 1983; No. 425-84 effective November 17, 1984; No. 193-86 effective June 29, 1986; No. 7-87 effective February 14, 1987; No. 30-91 effective February 21, 1991; No. 192-91 effective June 30, 1991; No. 405-96 effective November 21, 1996; No. 109-97-4 effective January 30, 1998; No. 239-98, effective August 16, 1998; No. 250-98, effective August 30, 1998.]
Notwithstanding Section 37.3, this section shall apply as of August 24, 1980, to all landlords and tenants of rental units as defined in Section 37.2(p).
(a) A landlord shall not endeavor to recover possession of a rental unit unless:
(1) The tenant has failed to pay the rent to which the landlord is lawfully entitled under the oral or written agreement between the tenant and landlord or habitually pays the rent late or gives checks which are frequently returned because there are insufficient funds in the checking account; or
(2) The tenant has violated a lawful obligation or covenant of tenancy other than the obligation to surrender possession upon proper notice and failure to cure such violation after having received written notice thereof from the landlord; or
(3) The tenant is committing or permitting to exist a nuisance in, or is causing substantial damage to, the rental unit, or is creating a substantial interference with the comfort, safety or enjoyment of the landlord or other tenants in the building, and the nature of such nuisance, damage or interference is specifically stated by the landlord in the writing as required by Section 37.9(c); or
(4) The tenant is using or permitting a rental unit to be used for any illegal purpose; or
(5) The tenant, who had an oral or written agreement with the landlord which has terminated, has refused after written request or demand by the landlord to execute a written extension or renewal thereof for a further term of like duration and under such terms which are materially the same as in the previous agreement provided that such terms do not conflict with any of the provisions of this chapter; or
(6) The tenant has, after written notice to cease, refused the landlord access to the rental unit as required by state or local law; or
(7) The tenant holding at the end of the term of the oral or written agreement is a subtenant not approved by the landlord; or
(8) The landlord seeks to recover possession in good faith, without ulterior reasons and with honest intent, for the landlord"s use and occupancy as his or her principal residence, or for the use and occupancy as the principal residence of the landlord"s children, parents, grandparents, grandchildren, brother or sister, or the landlord"s spouse or the spouses of such relations, for a period of at least 12 continuous months.
(i) For purposes of this Section 37.9(a)(8) only, as to landlords who become owners of record of the rental unit on or before February 21, 1991, the term landlord shall be defined as an owner of record of at least 10% interest in the property. For purposes of this Section 37.9(a)(8) only, as to landlords who become owners of record of the rental unit after February 21, 1991, the term "landlord" shall be defined as an owner of record of at least 25 percent interest in the property.
(ii) A landlord may not recover possession under this Section 37.9(a)(8) if a comparable unit in the building is already vacant and available, or if such a unit becomes vacant and available during the period of the notice terminating tenancy. If a comparable unit does become vacant and available during said notice period, the landlord shall rescind the notice to vacate.
(iii) It shall be rebuttably presumed that the landlord has not acted in good faith if the landlord or relative for whom the tenant was evicted does not move into the rental unit and occupy said unit as that person"s principal residence for a minimum of 12 continuous months; or
(9) The landlord seeks to recover possession in good faith in order to sell the unit in accordance with a condominium conversion approved under the San Francisco subdivision ordinance and does so without ulterior reasons and with honest intent; or
(10) The landlord seeks to recover possession in good faith in order to demolish or to otherwise permanently remove the rental unit from housing use and has obtained all the necessary permits on or before the date upon which notice to vacate is given, and does so without ulterior reasons and with honest intent; provided that a landlord who seeks to demolish an unreinforced masonry building pursuant to Building Code Chapters 14 and 15 must provide the tenant with the relocation assistance specified in Section 37.9A(f) below prior to the tenant"s vacating the premises; or
(11) The landlord seeks in good faith to remove temporarily the unit from housing use in order to be able to carry out capital improvements or rehabilitation work and has obtained all the necessary permits on or before the date upon which notice to vacate is given, and does so without ulterior reasons and with honest intent. Any tenant who vacates the units under such circumstances shall have the right to reoccupy the unit at the prior rent adjusted in accordance with the provisions of this chapter. The tenant will vacate the unit only for the minimum time required to do the work. On or before the date upon which notice to vacate is given, the landlord shall 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 located at 1660 Mission Street and that arrangements for reviewing such plans can be made with the Central Permit Bureau. In addition to the above, no landlord shall endeavor to recover possession of any unit subject to a RAP loan as set forth in Section 37.2(k) of this chapter except as provided in Section 32.69 of the San Francisco Administrative Code. The tenant shall not be required to vacate pursuant to this Section 37.9(a)(11), for a period in excess of three months provided, however, that such time period may be extended by the Board or its hearing officers upon application by the landlord. The Board shall adopt rules and regulations to implement the application procedure. Any landlord who seeks to recover possession under this Section 37.9(a)(11) shall pay the tenant actual costs up to $1,000.00 for moving and relocation expenses not less than 10 days prior to recovery of possession; or
(12) The landlord seeks to recover possession in good faith in order to carry out substantial rehabilitation, as defined in Sec. 37.2(q), and has obtained all the necessary permits on or before the date upon which notice to vacate is given, and does so without ulterior reasons and with honest intent. Notwithstanding the above, no landlord shall endeavor to recover possession of any unit subject to a RAP loan as set forth in Section 37.2(k) of this chapter except as provided in Section 32.69 of the San Francisco Administrative Code; or
(13) The landlord, who does not have cause to evict under any other provision of this Section 37.9(a), wishes to withdraw from rent or lease all rental units within any detached physical structure and, in addition, in the case of any detached physical structure containing three or fewer rental units, any other rental units on the same lot, and complies in full with Section 37.9A with respect to each such unit; provided, however, that a unit classified as a residential unit under chapter 41 of this Code which is vacated under this Section 37.9(a)(13) may not be put to any use other than that of a residential hotel unit without compliance with the provisions of Section 41.9 of this Code.
(14) The landlord seeks in good faith to temporarily recover possession of the unit for less than thirty (30) days solely for the purpose of effecting lead remediation or abatement work, as required by San Francisco Health Code Article 26. The relocation rights and remedies, established by San Francisco Administrative Code Chapter 72, including but not limited to, the payment of financial relocation assistance, shall apply to evictions under this Section 37.9(a)(14).
(b) A landlord who resides in the same rental unit with his or her tenant may evict said tenant without just cause as required under Section 37.9(a) above.
(c) A landlord shall not endeavor to recover possession of a rental unit unless at least one of the grounds enumerated in Sections 37.9(a) or (b) above is the landlord"s dominant motive for recovering possession and unless the landlord informs the tenant in writing on or before the date upon which notice to vacate is given of the grounds under which possession is sought and that advice regarding the notice to vacate is available from the Residential Rent Stabilization and Arbitration Board, before endeavoring to recover possession. A copy of all notices to vacate except 3-day notices to vacate or pay rent and a copy of any additional written documents informing the tenant of the grounds under which possession is sought shall be filed with the Board within 10 days following service of the notice to vacate. The District Attorney shall determine whether the units set forth on the list compiled on accordance with Section 37.6(k) are still being occupied by the tenant who succeeded the tenant upon whom the notice was served. In cases where the District Attorney determines that Section 37.9(a)(8) has been violated, the District Attorney shall take whatever action he deems appropriate under this chapter or under state law.
(d) No landlord may cause a tenant to quit involuntarily or threaten to bring any action to recover possession, or decrease any services, or increase the rent, or take any other action where the landlord"s dominant motive is retaliation for the tenant"s exercise of any rights under the law. Such retaliation shall be a defense to any action to recover possession. In an action to recover possession of a rental unit, proof of the exercise by the tenant of rights under the law within 6 months prior to the alleged act of retaliation shall create a rebuttable presumption that the landlord"s act was retaliatory.
(e) It shall be unlawful for a landlord or any other person who willfully assists the landlord to endeavor to recover possession or to evict a tenant except as provided in Sec. 37.9(a) and (b). Any person endeavoring to recover possession of a rental unit from a tenant or evicting a tenant in a manner not provided for in Sec. 37.9(a) or (b) without having a substantial basis in fact for the eviction as provided for in Sec. 37.9(a) shall be guilty of a misdemeanor and shall be subject, upon conviction, to the fines and penalties set forth in Sec. 37.10. Any waiver by a tenant of rights under this chapter shall be void as contrary to public policy.
(f) Whenever a landlord wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Sections 37.9 and/or 37.10 as enacted herein, the tenant or board may institute a civil proceeding for injunctive relief, money damages of not less than three times actual damages (including damages for mental or emotional distress), and whatever other relief the court deems appropriate. In the case of an award of damages for mental or emotional distress, said award shall only be trebled if the trier of fact finds that the landlord acted in knowing violation of or in reckless disregard of Sections 37.9 or 37.10 herein. The prevailing party shall be entitled to reasonable attorney"s fees and costs pursuant to order of the court. The remedy available under this Section 37.9(f) shall be in addition to any other existing remedies which may be available to the tenant or the Board.
(g) The provisions of this Section 37.9 shall apply to any rental unit as defined in Sections 37.2(r)(4)(A) and 37.2(r)(4)(B), including where a notice to vacate/quit any such rental unit has been served as of the effective date of this Ordinance No. 250-98, but where any such rental unit has not yet been vacated or an unlawful detainer judgment has not been issued as of the effective date of this Ordinance No. 250-98.
(h) With respect to rental units occupied by recipients of tenant-based rental assistance, the notice requirements of this section 37.9 shall be required in addition to any notice required as part of the tenant-based rental assistance program, including but not limited to the notice required under 24 CFR §982.311(e)(2)(ii).
(i) TEMPORARY MORATORIUM. The following additional provisions shall apply to a landlord who seeks to recover a rental unit by utilizing the grounds enumerated in Section 37.9(a)(8):
(1) As of the effective date of the Ordinance amending Chapter 37 by adding this Section 37.9(i), (Ordinance No. 482-97) and continuing through June 30, 1999, a landlord may not recover possession of a unit from a tenant under Section 37.9(a)(8) if the landlord has or receives notice, any time before recovery of possession, that any tenant in the rental unit:
(A) Is 60 years of age or older and has been residing in the unit for 10 years or more; or
(B) Is disabled within the meaning of Section 37.9(i)(1)(B)(i) and has been residing in the unit for 10 years or more, or is catastrophically ill within the meaning of Section 37.9(i)(1)(B)(ii) and has been residing in the unit for 5 years or more:
(i) A "disabled" tenant is defined for purposes of this Section 37.9(1)(B) as a person who is disabled or blind within the meaning of the federal Supplemental Security Income/California State Supplemental Program (SSI/SSP), and who is determined by SSI/SSP to qualify for that program or who satisfies such requirements through any other method of determination as approved by the Rent Board;
(ii) A "catastrophically ill" tenant is defined for purposes of this Section 37.9(1)(B) as a person who is disabled as defined by Section 37.9(1)(B)(i), and who is suffering from a life threatening illness as certified by his or her primary care physician.
(2) The foregoing provisions of Section 37.9(i)(1)(A) and (B) shall not apply where there is only one rental unit owned by the landlord in the building, or where each of the rental units owned by the landlord in the same building where the landlord resides (except the unit actually occupied by the landlord) is occupied by a tenant otherwise protected from eviction by Sections 37.9(i)(1)(A) and (B) and where the landlord"s qualified relative who will move into the unit pursuant to Section 37.9(a)(8) is 60 years of age or older.
(3) The temporary eviction moratorium established by this Section 37.9(i) includes, but is not limited to, any rental unit where a notice to vacate/quit has been served as of the date the temporary moratorium takes effect (see Section 37.9(i)(1)) but where the rental unit has not yet been vacated or an unlawful detainer judgment has not been issued.
(4) Unless otherwise limited or extended, the provisions of Section 37.9(i) shall remain in effect through June 30, 1999 only, and shall no longer be in effect on July 1, 1999, and thereafter.
(5) (i) Within 30 days following service by a landlord of either a written request by U.S. Mail and hand delivery, or, at the landlord"s option, a notice of termination of tenancy under Section 37.9(a)(8), a tenant must serve a statement, including supporting evidence, on the landlord by U.S. Mail or hand delivery that the tenant claims or does not claim to be a member of one of the classes protected by this Section. Service of the written request on the tenant shall be complete on the date on which the mailed request is postmarked and the hand delivered copy is delivered to the leased premises, whichever is later. Service of the tenant"s statement and supporting evidence on the landlord shall be complete on the date on which a mailed statement and evidence is postmarked or a hand delivered copy is delivered to the landlord at the address stated in the landlord"s request or notice.
(ii) The landlord"s written request or notice of termination of tenancy shall specifically refer to this Section 37.9.(g), shall inform the tenant that he or she has 30 days in which to invoke the protection of Section 37.9(g), and shall describe the manner in which the tenant must give notice to the landlord of the tenant"s claim.
(iii) The landlord shall file a copy of the request or notice with the Rent Board within ten days following service on the tenant.
(iv) The evidence supporting a tenant"s claim of protection under Section 37.9(g) may include, but is not limited to, a driver"s license, passport, birth certificate, SSI/SDI statement, or letter from a licensed physician.
(v) A tenant"s failure to serve a statement on the landlord within the 30-day period shall be deemed an admission that the tenant is not protected by this Section.
(vi) A landlord may challenge a tenant"s claim of protected status either by requesting a hearing with the Rent Board or, at the landlord"s option, through commencement of eviction proceedings, including service of a notice of termination of tenancy. In the Rent Board hearing or the eviction action, the tenant shall have the burden of proof to show protected status. No civil or criminal liability under Sections 37.9(e) or (f) shall be imposed upon a landlord either requesting or challenging a tenant"s claim of protected status.
Section 2. SEVERABILITY.
If any part or provision of this Ordinance, or the application thereof to any person or circumstance, is held invalid, the remainder of this Ordinance, including the application of such part or provision to other persons or circumstances, shall not be affected thereby and shall continue in full force and effect. To this end, provisions of this Ordinance are severable.