Topic No. 206: Temporary Eviction for Capital Improvements
A landlord may temporarily evict a tenant pursuant to Ordinance Section 37.9(a)(11) 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. 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 contest the eviction in court or file a Report of Alleged Wrongful Eviction at the Rent Board.
Displacements Exceeding Three Months
If 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 at the Rent Board before giving the eviction notice to the tenant. If, after the eviction notice 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 will be scheduled at the Rent Board 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, the location and cost of the work, and a statement of whether all of the work is necessary to meet state or local requirements concerning the safety or habitability of the building, rather than elective in nature; an estimate of the time needed to complete the work; the approximate day and month when each tenant may reoccupy; and a description of any mitigation offered by the landlord to address the hardship imposed upon the tenant, other than the required relocation expenses.
In addition to general eviction notice requirements, there are specific requirements for temporary eviction notices for capital improvements or rehabilitation work, including:
- The landlord must obtain any necessary permits for the work before giving the eviction notice to the tenant.
- The notice must include copies of all necessary permits, a description of the work to be done and a reasonable approximate date (month and year) when the tenant can reoccupy the unit.
- The notice must advise the tenant in writing that the permit application and any rehabilitation or capital improvement plans, if required by the Building Inspection Department, are on file with the Central Permit Bureau of the Building Inspection Dept., and arrangements may be made to review such applications or plans.
- The eviction notice must state the current lawful rent for the unit.
- The notice must advise the tenant of their right to receive relocation payments, including a statement describing the additional relocation expenses available for eligible tenants who are senior or disabled and for households with children. A copy of Rent Ordinance Section 37.9C must also be attached to the notice.
- 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, and that the failure to do so will be deemed an admission that the tenant is not protected.
- A copy of Rent Board Forms 1007 and 1009 must be attached to the eviction notice. Forms 1007 and 1009 are available in the Forms Center on the Rent Board’s website.
- 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.
Landlords are required to pay relocation expenses to tenants who are being temporarily evicted for capital improvement or rehabilitation work. Pursuant to Ordinance Section 37.9C, where the work is expected to displace the tenant for twenty days or more, each authorized occupant, regardless of age, who has lived in the unit for at least one year is entitled to a relocation payment of $4,500.00 (as of March 1, 2007), with a maximum payment of $13,500.00 per unit. In addition, each elderly tenant who is 60 years or older, and each disabled tenant, and each household with one or more minor children, is entitled to an additional payment of $3,000.00. Each year commencing March 1, 2007, the amount of these relocation payments, including the maximum relocation expenses per unit, is adjusted for inflation.
However, if the landlord is performing capital improvement or rehabilitation work that will temporarily displace the tenant for less than 20 days, the amount of relocation costs is governed by California Civil Code Section 1947.9 and not Ordinance Section 37.9C. As of January 1, 2013, the amount of relocation costs due per tenant household under Civil Code Section 1947.9 is $275.00 per day, in addition to any actual moving expenses if it is necessary to move the tenant’s possessions out of the unit. In the alternative, Civil Code Section 1947.9 gives a landlord the option of providing the displaced tenant with a comparable rental unit, plus payment of any moving expenses, instead of paying relocation for temporary displacements of less than 20 days.
Information regarding current relocation payment amounts are available in the Forms Center of the Rent Board’s website. A list of relocation payment amounts is also available at the Rent Board’s office.
The landlord is required to give all occupants of 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. Such notification shall include a statement describing the additional relocation expenses available for eligible tenants who are senior or disabled and for households with children. 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 payment because of age, disability, 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. However, the Rent Board does not have authority to accept or decide petitions regarding a tenant’s claim for additional relocation expenses based on age, disability or having children in the household. Such disputes must be resolved in another forum.
Half of the required relocation payment must be paid at the time the notice to vacate is served, and the second half must be paid when the unit is vacated. Any additional payments required due to a tenant’s age or disability, or due to a household with a minor child, must be paid within fifteen calendar days of the landlord's receipt of written notice from the tenant of entitlement to the additional relocation payment along with supporting evidence, and the second half must be paid when the unit is vacated.
Protected Status During the School Year for Households with Minor Children and School Employees
The landlord may not temporarily evict a tenant from the unit for the performance of capital improvement or rehabilitation work during the school year if a child under 18 or a person who works at a school in San Francisco (an “educator”) resides in the rental unit, is a tenant in the unit or has a custodial or family relationship with a tenant in the unit, and the tenant has resided in the unit for 12 months or more.
Any tenant who claims to have protected status must notify the owner of the tenant’s protected status within 30 days of receiving either an eviction notice or a written request from the owner to declare the tenant’s protected status. The tenant must also include evidence supporting the claim of 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. The landlord may contest a tenant’s claim of protected status either by filing a petition with the Rent Board or through eviction proceedings in court.
For the purpose of determining whether a tenant has a protected status, the following definitions apply:
“Custodial relationship” means, with respect to a child and a tenant, that the tenant is a legal guardian of the child, or has a court-recognized caregiver authorization affidavit for the child, or has provided full-time custodial care of the child pursuant to an agreement with the child’s legal guardian or court-recognized caregiver and has been providing that care for at least one year or half of the child’s lifetime, whichever is less.
“Educator” means any person who works at a school in San Francisco as an employee or independent contractor of the school or of the governing body that has jurisdiction over the school, including, without limitation, all teachers, classroom aides, administrators, administrative staff, counselors, social workers, psychologists, school nurses, speech pathologists, custodians, security guards, cafeteria workers, community relations specialists, child welfare and attendance liaisons, and learning support consultants.
“Family relationship” means that the person is the parent, grandparent, brother, sister, aunt, or uncle of the child or educator, or the spouse or domestic partner of such relations.
“School” means any state-licensed child care center, state-licensed family day care, and/or any public, private, or parochial institution that provides educational instruction for students in any or all of the grades from kindergarten through twelfth grade.
“School year” means the first day of instruction for the Fall Semester through the last day of instruction for the Spring Semester, as posted on the San Francisco Unified School District website for each year.
Reoccupancy By The Tenant
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.
Immediately upon completion of the improvements or rehabilitation work, the landlord must advise the displaced tenant in writing that the unit is ready for reoccupancy. The tenant has 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, must take occupancy of the unit within 45 days of receipt of the landlord’s offer. The landlord must file a copy of the offer with the Rent Board within 15 days of the offer. If the landlord fails to allow a displaced tenant to reoccupy the premises within three months or within the time period authorized by an Administrative Law Judge after a hearing 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. Upon a proper showing, 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.
In addition, if the landlord does not timely allow the tenant to reoccupy the unit, and upon completion of the work the subsequent occupant is someone other than the displaced tenant, there is a rebuttable presumption that the displaced tenant did not reoccupy the unit due to the delay and that the prior tenancy was terminated by the landlord for the purpose of Ordinance Section 37.3(f)(1). That section provides that if the tenancy is terminated by the landlord, for five years after the expiration of the eviction notice for capital improvements or rehabilitation work, the initial base rent for the subsequent tenancy cannot exceed the lawful rent in effect at the time the previous tenancy was terminated, plus any annual rent increases available under the Rent Ordinance.