Expanding Eviction Protections Under Oakland and San Francisco Rent Control

In November, Oakland residents will vote on a ballot measure to expand the city’s rent control ordinance to tighten restrictions on a landlord’s ability to increase rent and to expand eviction protections to many additional housing units in the city. The legislation, the Renter Protection Act of 2016, would make several important changes to current law to strengthen tenants’ rights. It would place the burden on landlords to seek permission from the Oakland Rent Board before raising rents above the amounts allowed for in the Rent Ordinance. As it stands now, landlords can increase rents above the allowable limit and it is up to the tenant to either challenge the rent increase, pay the new rent or face eviction for non-payment. This is the same way it currently works in San Francisco. Tenants in San Francisco have the burden of challenging any rent increases that are beyond the limits of the Rent Ordinance.

Another feature of the Oakland ballot measure is its expansion of eviction control to thousands of rental units which are currently exempted from the Rent Ordinance. Eviction control is just as important as rent control because it restricts a landlord’s ability to evict tenants. In areas without a rent ordinance, a landlord can evict a tenant for any reason, with very few exceptions in state law.

However, even in cities with rent ordinances, not every tenant is protected. As it stands, rental units that were built before October 1980 are exempt from eviction control protections in Oakland. The Act would expand eviction control to housing that was built before 1996, requiring landlords to have just cause to evict tenants living in those units.

Tenants across the Bay from Oakland face similar exemptions. In San Francisco, rental units built before June 13, 1979 are exempt from the San Francisco Rent Ordinance. This exemption includes not only rent control but also eviction control. As more housing is erected in the city, more tenants are renting without the protections enjoyed by their neighbors who reside in older units. This makes little sense, divides tenants in the city into two separate classes and makes housing less stable.

It’s time for the laws to change to extend eviction protections to more tenants. Extending eviction control would require landlords of “newer” buildings (those built after 1979 in San Francisco) to have as their dominant motive for eviction one of the just causes approved by the rent ordinances. They would no longer be able to evict a tenant for simply any reason.

One criticism of extending eviction protections without also extending rent control is that landlords could simply raise tenants’ rents and legally evict for non-payment when the tenants can’t pay the higher rent amount. This would mean the landlords could effectively circumvent the just cause restrictions on evictions. This isn’t simply an academic issue; it has happened before and will likely happen again.

However, dominant motive, good faith, and honest intent requirements in the rent ordinances can provide an answer and an avenue for tenants to protect their rights. The rent ordinances in both Oakland and San Francisco require that a landlord’s dominant motive for evicting be one of the just causes specifically listed in the ordinance. Plus, a landlord must act in good faith and with honest intent in order to pursue a just cause eviction. If a landlord attempts to evict for reasons other than one of the permissible just causes, the tenant can sue for wrongful eviction and receive monetary compensation from the landlord, including attorneys’ fees and three times actual damages.

Rarely is legislation perfect. But the Oakland ballot measure would take one step further in protecting tenants. But we shouldn’t stop there. Expanding eviction protections under the Oakland and San Francisco Rent Ordinances would provide tenants in newer buildings with the same just cause protections their neighbors in older buildings have enjoyed for decades. While San Franciscans will have to wait for expanded laws, Oakland voters will get a chance this November to make important change and help protect their tenant community.

New Housing for Whom: Addressing Criticisms of Rent Control Ballot Measures in the Bay Area

This November will be very important for tenants in the Bay Area. Ballot measures commencing and expanding rent control and eviction control protections will be considered by voters in the cities of San Mateo, Oakland, Alameda, Richmond, Burlingame and Mountain View. If these measures pass, they will add tenant protections to those that already exist in San Francisco, Oakland, Berkeley and East Palo Alto, and could impact over 285,000 Bay Area residents.

Because rent control ballot measures are popping up across the Bay Area this year, opponents of rent control initiatives have come out of the woodwork. One popular criticism that we are increasingly hearing from rent control opponents is that economists don’t believe rent control works. The contention is that economists don’t believe rent control would help fix the housing crisis.

But this underscores fundamental differences in how the two sides view what is important in mitigating the effects of the housing crisis. What exactly is the housing crisis, who is it affecting and how can we minimize the harm it’s causing?

In the view of rent control opponents, the housing crisis is simply about low supply. In their view, rent control protections are bad because they will add no new housing to the current stock. They see the issue in simplistic supply and demand terms, rather like economists. They see development as the only solution to astronomically rising rents. They believe more newly constructed housing is the way to defeat what they see as the housing crisis. And since rent control does not add more new housing, it is not worth doing.

However, the focus on supply as the central problem to be solved in the housing crisis ignores bigger issues that rent control critics are avoiding. Who has access to the new housing (i.e., who can afford to live there)? Who is affected by rising rents? How are communities changing because of rising rents? How do we protect people who are being negatively affected by increasingly high rents?

The answers to these questions cannot be found only by focusing on supply and new development. Simply building new housing will not protect existing communities and low-income tenants. As we’ve seen in San Francisco along upper Market Street, the Octavia corridor, Hayes Valley, China Basin and SoMa, to name a few neighborhoods, new housing developments are largely shiny, luxury structures that effectively exclude current residents of those neighborhoods and those unable to afford the high prices they demand. Additionally, many of these new housing units are not likely to be added to the rental market, but rather will be used by their owners as primary and secondary homes. Thus, increasing the supply of housing doesn’t benefit everyone.

Instead, what the critics aren’t acknowledging is that rent control helps to keep communities diverse and helps to protect housing for those who are not the top earners. It gives a level of stability because tenants can expect and plan on their rents not being raised. It also gives greater stability to neighborhoods whose characters could otherwise rapidly change. It means a neighborhood will not be comprised solely of people who can afford drastically increasing rents. It allows families with children to stay in communities and schools they have known for years.

Another criticism of rent control is that it prevents new housing from being constructed. The argument is that real estate developers will not want to build in a place that has rent control. They treat new housing and rent control as mutually exclusive concepts. Yet what is often misunderstood is that rent control does not affect newly constructed units. Real estate developers could build all the new housing they want and none of it would be subject to rent control in any of the jurisdictions that have rent control now or those that have rent control measures on the ballots. That’s because California law currently exempts newly constructed units from being subject to rent control. Therefore, rent control does not affect new housing and there’s no reason why developers cannot construct new buildings in rent control jurisdictions. We can have both rent control and new housing.

A more fundamental problem with the view of the housing crisis as being solely an issue of no new housing is that there will never be enough immediate new construction to drastically decrease rents. Housing projects take time and money. We’ve seen buildings constructed in San Francisco, but the rents citywide continue to increase. Unless there was very fast, simultaneous construction, new housing won’t decrease rents. And, even if new units were constructed, there would be no check on future rent increases because rent control doesn’t apply to newly constructed housing.

In the end, opponents of rent control seem to be interested only in looking at the issue through supply and demand. They define the housing crisis as low housing supply with potential for increasing the housing stock. They do not consider loss of community or neighborhood stability. More housing alone is not the only solution to the housing crisis and should not be a reason to deny rent control to hundreds of thousands of Bay Area residents who are suffering under increasingly costly rents. Without more, new development does not protect low-income tenants or the character of the communities we live in. 


Can My Landlord Change the Terms of My Tenancy? Unilateral Changes and Tenants' Rights

In San Francisco, tenant attorneys see with some frequency the situation where a landlord tries to change the terms of a tenancy in the middle of the tenancy. In some cases, a landlord will reach out to a tenant and they will negotiate new terms together. Often, however, the landlord tries to impose unilateral changes without the tenant’s input or consent. This can occur when, for example, a tenant has lived in her apartment for several years and does not plan to move out, but is in a month-to-month tenancy. Notice of these changes can come as quite a shock to the tenant. And the shock is even greater when the landlord tries to evict the tenant for supposedly violating one of these new landlord-imposed terms.

While some of the changes landlords make to their tenants’ leases can be innocuous, other changes are major and can have far-reaching consequences. Changes can include the amount of rent, the day of the month when rent is due, taking away or adding in an attorneys’ fees provision to the rental agreement, restrictions on the number of guests or the length of time a guest can occupy a rental unit, and almost anything else that a landlord can think of. Sometimes these changes are imposed through new house rules that are issued to the tenant, purporting to add and remove provisions from a rental agreement. These new house rules can be so drastic and lengthy that they take up more paper than the original lease.

Is it legal for a landlord to change the terms of tenancy? In short, yes. But the mechanics of it are screwy and contradict how things work in the real world. The law provides the landlord the ability to change the terms of a month-to-month or week-to-week tenancy by service of a notice. While it feels strange that a landlord is allowed to impose these changes in the middle of a tenancy, the law looks at this situation in much the same way as an economist would – by believing in a totally free and fair market and treating month-to-month tenancies as a kind of fiction. For example, if a tenant began renting on the first of the month and is now in a month-to-month tenancy, the law says that her tenancy ends at midnight on the last day of each month. Then, the tenancy begins anew at 12:01 a.m. on the first day of the next month. This is the fiction that the law sets up for month-to-month tenancies. If, in this situation, the landlord gives notice of a change in the tenancy terms during the month and the tenant remains in possession at 12:01 a.m. on the first day of the new month, the law deems the tenant to have accepted the change in the terms of the tenancy imposed by the landlord.

Unfortunately, in the law’s eyes, the tenant always has the option of moving out if she does not like the tenancy changes imposed by the landlord. This is the second fiction that the law sets up for tenants in these types of situations. Most tenants understand that in many cities with tight rental markets, particularly in the San Francisco Bay Area, there is no such thing as a free and fair market. Landlords and tenants simply do not share an equal bargaining position. In reality, of course, the tenant rarely has such an easy decision. Often, the tenant doesn’t have a decision at all. New rents are so high that a tenant has no choice but to accept the landlord’s changes, whatever they are.

Some unscrupulous landlords know that tenants do not have any real choice but to accept their new house rules or whatever other changes they impose on the tenant, so they make changes to the tenancy with an eye toward evicting longer-term tenants for violations of those new unilaterally imposed terms.

But, tenants have protections against abuse. The biggest protection is rent control. In cities like Berkeley, Oakland, and San Francisco, a landlord of a rental unit covered by rent control cannot unilaterally increase a tenant’s rent unless it is allowable by the local rent stabilization board.

Another big protection is afforded to San Francisco residents with rent control by the San Francisco Rent Board’s Rules and Regulations. A landlord who imposes a unilateral change in the terms of tenancy cannot evict a tenant for a violation of those terms unless the change is authorized by law or the tenant consents to the change in writing, and then only after written notice from the landlord to the tenant informing the tenant that she doesn’t have to accept the change in terms of the tenancy. This protection is available in San Francisco to tenants whose units are covered by the San Francisco Rent Ordinance.

In other areas, including in cities and towns across California that do not have local rent control ordinances, tenants are also protected against evictions over breaches of minor tenancy terms. If the landlord imposes a plethora of changes to the tenancy including some that are minor, and even if the tenant consents to those changes in writing, the landlord cannot evict a tenant for violation of only a minor term. To prevail in an eviction based on breach of lease, the landlord has to prove that the term of the tenancy that was violated was a material term of the tenancy. This simply means it must have been a term that was not minor or incidental.

While landlords sometimes try to unilaterally change the terms of tenancy in the middle of the game, tenants have protections and do not always have to just accept what the landlord imposes. 

My Landlord Is Harassing Me. What Are My Rights?

Is your landlord, or any of his or her agents, failing to complete or even to start needed repairs to your unit?

Entering your unit when no one is home or without prior written notice?

Threatening, intimidating or trying to fool you into vacating your unit?

Refusing to cash your rent payment within thirty days or even to recognize you have a right to live in your unit?

Mistreating or discriminating against you because of your landlord’s beliefs about race, gender, sexual preference, sexual orientation, ethnic background, nationality, place of birth, immigration or citizenship status, religion, age, parenthood, marriage, pregnancy, disability, AIDS or occupancy of your unit by a minor child or children?

The answers to these questions vary depending on where you live in California.

San Francisco

Effective December 2008, section 37.10B was added to the San Francisco Rent Ordinance. Now, landlords and all his or her agents, employees, contractors or subcontractors, are expressly prohibited from engaging in bad faith in certain behaviors against tenants.

San Francisco Administrative Code §37.10B

(a)         No landlord, and no agent, contractor, subcontractor or employee of the landlord shall do any of the following in bad faith:

  1. Interrupt, terminate or fail to provide housing services required by contract or by State, County or local housing, health or safety laws; 
  2. Fail to perform repairs and maintenance required by contract or by State, County or local housing, health or safety laws;
  3. Fail to exercise due diligence in completing repairs and maintenance once undertaken or fail to follow appropriate industry repair, containment or remediation protocols designed to minimize exposure to noise, dust, lead, paint, mold, asbestos, or other building materials with potentially harmful health impacts;
  4. Abuse the landlord’s right of access into a rental housing unit as that right is provided by law;
  5. Influence or attempt to influence a tenant to vacate a rental housing unit through fraud, intimidation or coercion;
  6. Attempt to coerce the tenant to vacate with offer(s) of payments to vacate which are accompanied with threats or intimidation;
  7. Continue to offer payments to vacate after tenant has notified the landlord in writing that they no longer wish to receive further offers of payments to vacate;
  8. Threaten the tenant, by word or gesture, with physical harm;
  9. Violate any law which prohibits discrimination based on actual or perceived race, gender, sexual preference, sexual orientation, ethnic background, nationality, place of birth, immigration or citizenship status, religion, age, parenthood, marriage, pregnancy, disability, AIDS or occupancy by a minor child; 
  10. Interfere with a tenant’s right to quiet use and enjoyment of a rental housing unit as that right is defined by California law;
  11. Refuse to accept or acknowledge receipt of a tenant’s lawful rent payment;
  12. Refuse to cash a rent check for over 30 days;
  13. Interfere with a tenant’s right to privacy; 
  14. Request information that violates a tenant’s right to privacy, including but not limited to residence or citizenship status or social security number;
  15. Other repeated acts or omissions of such significance as to substantially interfere with or disturb the comfort, repose, peace or quiet of any person lawfully entitled to occupancy of such dwelling unit and that cause, are likely to cause, or are intended to cause any person lawfully entitled to occupancy of a dwelling unit to vacate such dwelling unit or to surrender or waive any rights in relation to such occupancy.

Recognizing it would be impossible to specifically list every conceivable act of landlord harassment, 37.10B wisely includes number 15 as a “catch-all” provision which helps protect tenants against harassment where the landlord's actions do not fit within any of the other categories.  

As a result of Section 37.10B, tenants now have a great deal more explicit protection against unscrupulous and harassing landlords than ever before. If you suffer or have suffered harassment at the hands of your landlord or his or her agents as described above, you have a right to file a lawsuit in San Francisco Superior Court in addition to any petition you might file at the San Francisco Rent Board.

For each and every violation of Section 37.10B the court finds, the violator is liable to the tenant for actual damages, multiplied by three. Actual damages include damages for mental or emotional distress suffered by the tenant, and these too will be multiplied by three if the violator is found to have acted in knowing violation or reckless disregard of the protections of the Rent Ordinance. The violator or violators are also subject to punitive damages and paying the attorney fees and costs of the prevailing tenant.

One of the most important implications of Section 37.10B is that any landlord or landlord agent whose harassment of a tenant as defined by Section 37.10B is a substantial factor in causing the tenant to move out of his or her unit, then that landlord or landlord agent is liable for “wrongfully evicting” the tenant. If the tenant lived in a rent-controlled unit, his or her damages for being wrongfully evicted are often very substantial.

Oakland

The Oakland Rent Ordinance essentially mirrors that of San Francisco with its protections against landlord harassment. Oakland Code of Ordinances § 8.22.640.

Oakland’s ordinance also specifically prohibits, with limited exception, threatening to report a tenant to U.S. Immigration and Customs Enforcement, removing a tenant’s personal property or furnishings from a rental unit without prior written consent of the tenant, and taking away a parking space knowing that a tenant cannot find alternative parking and must therefore move.

Like San Francisco, the Oakland Rent Ordinance provides for substantial money damages against a landlord who harasses or retaliates against a tenant in violation of the Ordinance. O.C.O. §8.22.670.

Berkeley

Berkeley’s Rent Ordinance does not go as far in protecting tenants against harassment as those of San Francisco or Oakland, but it does offer some protection against retaliation.

The Berkeley Rent Ordinance prohibits a landlord from retaliating against a tenant who asserts or exercises any rights under the ordinance within six months of the landlord’s act(s) of retaliation. Berkeley Municipal Code § 13.76.140. Examples of landlord retaliation include threatening to file or filing an eviction lawsuit, causing a tenant to involuntarily move out, decreasing housing services, or increasing rent intending to retaliate against a tenant.

The Berkeley Rent Ordinance defines "Housing Services" as including but not limited to: 

"repairs, maintenance, painting, providing light, hot and cold water, elevator service, window shades and screens, storage, kitchen, bath and laundry facilities and privileges, janitor services, refuse removal, furnishing, telephone, parking and any other benefit, privilege or facility connected with the use or occupancy of any rental unit. Services to a rental unit shall include a proportionate part of services provided to common facilities of the building in which the rental unit is contained."

California

Like Berkeley, California law does not explicitly protect tenants against landlord harassment, but it does protect against retaliation.

Every tenant in California is protected by state law from certain kinds of landlord harassment or retaliation. California Civil Code Section 1942.5, among other things, prohibits a landlord from retaliating against a tenant who “lawfully and peaceably exercised any rights under the law.” This is a broad standard of protection covering a wide variety of landlord retaliation and rights as exercised by tenants.

___________

Individual case facts should be carefully analyzed particularly in cases of landlord harassment or retaliation. If you, your loved ones or friends are or have been harassed by a landlord or any agent of a landlord, you should contact experienced tenant attorneys, like those at Humphreys Joiner Law Group, who can provide you with personalized advice and tenacious representation to enforce your rights as tenants. 

If I Sue My Landlord In San Francisco, Oakland, or Berkeley and I Win, What Do I Get?

The short answer is: three times the amount of money the jury awards you. A unique feature the San Francisco, Oakland and Berkeley rent ordinances all share is the tripling of money damages awarded to a tenant who successfully sues his or her landlord for certain violations.

S.F. Admin. Code Section 37.9(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 Section 37.9 or 37.10A 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.

Oakland Code of Ordinances Section 8.22.370(A)(2)

Whenever a landlord or anyone assisting a landlord wrongfully endeavors to recover possession or recovers possession of a rental unit in violation of Subsection 6(A) [8.22.360 A], 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 this ordinance. The prevailing tenant shall be entitled to reasonable attorney's fees and costs pursuant to order of the court.

Berkeley Municipal Code Section 13.76.150(B)

For Violation of Eviction Proceedings. If it is shown in the appropriate court that the event which the landlord claims as grounds to recover possession under Subsection 13.76.130 a.7., Subsection 13.76.130 A.8., Subsection 13.76. 13.76.130 A.9., or Subsection 13.76.130A.10. is not initiated within two months after the tenant vacates the unit, or it is shown the landlord's claim was false or in bad faith, the tenant shall be entitled to regain possession and to actual damages. If the landlord's conduct was willful, the tenant shall be entitled to damages in the amount of $750 or three times the actual damages sustained, whichever is greater.

Particularly when a tenant is wrongfully evicted- whether by landlord harassment or a fraudulent owner/relative move in eviction or other bad act- tripled money damages can make the difference in whether a tenant can bounce back and continue living in one of the most expensive areas in the world. Most tenants are surprised to discover these awards can be quite substantial.

As an example, take Jack and Jill who live up the hill- Telegraph Hill- in a rent-controlled apartment. They moved into their unit in 2006. In 2016, their building sold to new owners. Jack and Jill’s rent is $2,000 per month. The new owners served Jack and Jill with an owner move in eviction notice, causing Jack and Jill to move out by the required deadline. As it turns out, the new owners never move into Jack and Jill’s unit, but instead re-rent it to new tenants at the much higher price of $4,000. Jack and Jill sue the new owners for wrongful eviction. In such a case, the lion’s share of money damages Jack and Jill may be awarded at trial is determined by what is called the “rent differential calculation of damages.”

The use of the rent-differential formula to calculate money damages for the loss of a rent-controlled unit is well established in California: take the market value of the lost unit, minus the contract value, multiplied by how long the tenant would have continued living there. (Castillo v. Friedman (1987) 197 Cal.App.3d Supp. 6.) In the case of Jack and Jill, a likely calculation will be: market value of lost unit ($4,000) minus the contract value ($2,000) multiplied by how long Jack and Jill would have stayed in their unit if the new owners had not committed fraud (at least 10 more years). If Jack and Jill prevail, they will argue their rent differential damages are $240,000.

But because Jack and Jill live in San Francisco, or Oakland or Berkeley for that matter, the calculation does not end there. The Rent Ordinance requires that Jack and Jill’s actual damages of $240,000 be multiplied by three, for a new total of $720,000. This total does not include Jack and Jill’s money damages for emotional distress, out of pocket expenses or attorney fees, all of which are in addition to the rent differential damages.

Most renters in San Francisco, Oakland and Berkeley know they have a great deal of local legal protections which usually work well to keep them in their homes and free from landlord harassment. But what happens when these protections fail? What recourse do renters have when they vacate their homes as a result of landlord harassment or a fraudulent owner or relative move in eviction? Fortunately, the rent ordinances in these cities level the field for tenants who fall victim to wrongful evictions. Imposing serious financial repercussions on bad landlords forces all landlords to think twice before breaking the law and serves to further protect the tens of thousands of renters and their families who still occupy their homes and who rely on the protections of the rent ordinances.            

Over 1,280 Owner Move In Evictions in San Francisco, 2011-2015

Recently, a graduate student at Stanford University, Saurabh Datar, released data that he compiled ranking the neighborhoods in San Francisco by the numbers of eviction notices issued in the four years between 2011 and 2015. Not surprisingly, the Mission was at the top of the list. Other neighborhoods placing high in the rankings were Castro, SoMa, Nob Hill, Tenderloin, Outer Richmond, and the Sunset.

The data also showed the top reasons for eviction within each neighborhood. This provides some very interesting information for anyone following San Francisco’s housing crisis. One of the causes for eviction that came up again and again was owner move in. It was one of the top two most common reasons for eviction in 8 of the top 20 neighborhoods on the list. Those neighborhoods are generally the most residential in the city: the Sunset, Outer Richmond, Castro, Bernal Heights, Haight Ashbury, Noe Valley, Inner Sunset, and Inner Richmond.

All told, eviction notices citing owner move in as their basis were issued 1,283 times within the past four years. That’s more than 320 owner move in eviction notices issued per year citywide. 

The Top 20 Neighborhoods for Eviction Notices in San Francisco from 2011-2015 (the numbers of owner move in notices issued are in parentheses):

20. Inner Richmond (72)

19. Inner Sunset (40)

18. Noe Valley (53)

17. Haight Ashbury (47)

16. North Beach (22)

15. Pacific Heights (30)

14. Bernal Heights (59)

13. Hayes Valley (28)

12. Russian Hill (25)

11. Bayview / Hunters Point (22)

10. Marina (46)

9. Excelsior (66)

8. Castro (55)

7. Nob Hill (26)

6. Outer Richmond (88)

5. Lakeshore

4. Tenderloin

3. SoMa

2. Sunset (157)

1. Mission (129)

You can go to the data yourself and take a look at the numbers of eviction notices in San Francisco by neighborhood from 2011 through 2015. 

Owner Move In Evictions in the Bay Area: What They Are and How To Protect Tenants' Rights

Certain cities in the San Francisco Bay Area have important tenant protections which require a landlord to have a specific reason – a just cause – to evict a tenant. Cities like San Francisco, Oakland and Berkeley have these just-cause-for-eviction laws.

One of the common just causes is known as owner move in eviction. This is where a landlord who is a record owner of the property intends to move into the tenant’s unit and live there as his or her principal place of residence for a period of 36 continuous months.

There is a related just cause called relative move in eviction which allows a close relative of the landlord, typically a spouse, child, sibling, parent, or grandparent, to move into the unit. Like owner move in situations, the relative must intend to make the apartment his or her principal place of residence for 36 continuous months. The cities’ ordinances differ on which relatives qualify for a relative move in eviction. Berkeley and Oakland are more restrictive than San Francisco. In Berkeley, only a landlord’s spouse, child or parent are allowed to move in. In Oakland, only a landlord’s spouse, domestic partner, child, parent or guardian can move in for these purposes. However, San Francisco is much broader and, in addition to the landlord’s spouse, domestic partner, child and parent, the landlord’s grandparents, grandchildren, siblings and the spouses or domestic partners of those relatives all may move into the unit for a relative move in eviction.

Eviction Restrictions Placed on the Landlord

The ordinances restrict how, when and under what circumstances a landlord may evict a tenant for purposes of the owner or a relative moving in. These restrictions and requirements can be important for tenants looking for good ways to defend against an attempted eviction.

Notice Requirements

The landlord must give the tenant proper written notice to evict for an owner or relative move in. The notice must be given 60 days before the tenancy termination date, unless the tenant has lived in the unit for less than one year, in which case 30 days is required.

The landlord must also state in the notice the addresses of any other property that he or she owns, if the landlord will be moving in. In Berekely, the landlord does not have to list any properties in which his or her interest is less than 10%. In San Francisco and Oakland, if the landlord is attempting a relative move in eviction, he or she must also list the addresses of all the properties the relative owns.

The failure of a landlord to provide the proper written notice can make the eviction attempt unlawful and can slow the landlord’s efforts at evicting the tenant.

Percentage Ownership and Record Owner

Other restrictions deal with the landlord’s ownership of the property. The landlord must be a record owner of a certain percentage of the property where he or she, or a relative, intends to move in. In San Francisco, the landlord must own at least 25%; in Oakland, the percentage must be at least 33%; and in Berkeley, the ownership must be at least 50%.

If the landlord does not own the requisite percentage of the property he or she (or his or her qualified relative) is seeking to move into, then the landlord cannot legally evict a tenant for this purpose. Also, if the landlord is not an owner of record, then pursuing such an eviction is not lawful.

Relocation Payments

In San Francisco and Berkeley, tenants who are being evicted for an owner or relative move in may be entitled to relocation payments from their landlords. The San Francisco Rent Board sets the relocation amounts and publishes the current rates on its website. In Berkeley, relocation payments for low income tenants are permitted. Berkeley specifically defines “low income tenant” in its ordinance.  

Disability and Age

San Francisco, Oakland and Berkeley all restrict owner and relative move in evictions based on a tenant’s age and disability, generally. Each city has specific requirements about age, length of tenancy and disability, which vary by jurisdiction. In some situations, the tenant’s age or disability can prevent an eviction outright.

Should You Fight an Owner Move In Eviction?

Once a tenant receives a notice to vacate citing an owner or relative move in eviction, he or she has to decide whether or not to fight the eviction. The restrictions outlined above, as well as others, can provide some good grounds to attack the eviction attempt. Sometimes the landlord does not follow all the necessary steps and the attempted eviction can be stopped. However, this can be a mere momentary setback for the landlord because many of the requirements that the landlord has to follow are things that can be remedied relatively easily. This means the landlord could simply try again. The tenant gets a little more time, but does not protect his or her rights in the long run because these types of evictions can be very difficult to halt entirely.

As an alternative, tenants can consider moving out of the property and suing the landlord for wrongful eviction. Following this path can win tenants significant monetary compensation from their landlord. This is a viable option if the landlord was lying about moving himself or his relatives into the unit, or if the landlord moves in but then moves out before 36 months has elapsed.

One of the benefits of moving and suing rather than staying and fighting the eviction is the particular legal question that will win or lose the lawsuit. In owner and relative move in situations, the focus is on the landlord or relative’s intent: he or she must honestly and in good faith intend to move into the unit. If the tenant remains living in the unit, and tries to defend against the eviction, he or she has the very difficult job of attempting to show that the landlord is not being truthful about intending to move in.

Conversely, if the tenant moves and sues the landlord, the onus is on the landlord to actually move into the unit. When that is not done, the tenant has many more ways to find out why and attack the landlord’s intent to move in. The tenant is therefore in a much better position to show that the landlord never honestly and in good faith intended to move into the unit.

While moving and suing does not save the tenant’s current housing, it can provide a powerful way to enforce the tenant’s rights where the tenant might otherwise lose in an eviction lawsuit. Additionally, it helps to enforce tenants’ rights by providing the tenant with monetary compensation for fraudulent owner or relative move in evictions.

If you, your loved ones or friends receive a notice about an owner or relative move in eviction, you should contact experienced tenant attorneys, like those at Humphreys Joiner Law Group, who can provide you with personalized advice and vigorous representation to enforce your rights as tenants.