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.

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.