Eviction, Relocation Money, Just Cause, Fire Issues
Please note: starting Sept. 1, 2019, the time period to respond to a 3-day notice and the five days to respond to a UD will NOT include weekends or holidays, so, for a 3-day for example, if you receive it on Friday, it will not start counting until Monday and you’ll have until 5pm on Wednesday to respond, and for a UD, you’d have until the next Friday. Note also that 3-day nuisance complaints are exempt from this new law and the old count applies.
Under section 37.9(a) of the SF Rent Ordinance, landlords who own rent-controlled apartments must have just cause (see below under “just cause”) to evict tenants from those units. Those reasons listed under just cause are the only reasons landlords can evict tenants from rent-controlled apartments in San Francisco.
The most important thing to understand about eviction is that it is a legal process. It can’t be done verbally, only through a written warning notice (3- 30- 60-days, etc.), then a court summons (Unlawful Detainer). You don’t have to leave because your landlord tells you to; she must give you a written notice and follow the legal process step by step.
If you are being evicted because you owe rent (and you’ve received a three-day cure or quit notice), check out the rental assistance list here.
If you are under rent control and being evicted without a just cause (see list below), you can fill out an Alleged Wrongful Eviction petition with the Rent Board, link is here. You can fax or drop off the petition to SF Rent Board, 25 Van Ness, suite 320, SF 94102, fax 415-252-4699.
1. Non-payment of rent.
2. Violation of a lawful obligation under the lease, i.e. habitual late payment of rent.
3. Tenant is creating a nuisance and disturbing other tenants or damaging property.
4. Landlord or a family member intends to move into the unit (see owner move-in below).
5. Landlord plans to perform capital improvements which require the tenant to temporarily vacate the unit (see below).
6. The unit is being used for illegal purposes.
7. Tenant refuses to renew a rental agreement that is materially the same. (Note that tenants are not obligated to sign an agreement that is materially different than the one they currently have, no matter how old the original agreement is.)
8. Tenant refuses the landlord access to the rental unit, as required by state or local law.
9. Landlord seeks to sell the unit in accordance with the condominium conversion rules under the SF Subdivision Ordinance.
10. Unapproved subtenant is the only remaining tenant.
11. Landlord plans to take the building off the market for 10 years. (see Ellis Act eviction below)
12. Landlord seeks to substantially rehabilitate or completely rebuild the unit.
13. Landlord plans to demolish or remove permanently the unit from the rental market. (This is often used for illegal units, though landlords now have the option of legalizing the units and if they decide to demolish, have to file for a change of use hearing at the Planning Commission before they can evict.)
14. Landlord needs to temporarily evict the tenant in order to get rid of lead paint.
15. The landlord seeks to recover possession in good faith in order to demolish or to otherwise permanently remove the rental unit from housing use in accordance with the terms of a development agreement entered into by the City under Chapter 56 of the San Francisco Administrative Code.
16. The tenant Good Samaritan Status (Section 37.2(a)(1)(D)) has expired, and the landlord exercises the right to recover possession by serving a notice of termination of tenancy under this Section 37.9(a)(16) within 60 days after expiration of the Original and any Extended Good Samaritan Status Period.
OWNER MOVE-IN (OMI)
The owner of a unit may recover possession of that unit if she intends to make it her principal place of residence for 36 continuous months (three years). If the owner already resides in the building, or has just bought it and is moving into a unit, she is allowed to exercise this right for any immediate adult family members: parents, grandparents, children, grandchildren, siblings, spouses, and relatives’ spouses. If she is just buying the building, she can literally move relatives into every apartment. The new occupant should move in within three months of the eviction. The landlord must offer the tenant any vacant comparable unit within any property she owns. The unit, however, can be at market rate, not at the old rent. A written notice of 60 days is required for an OMI. The notice should include the name of the landlord and the person moving in (if not the landlord), his or her relationship to the landlord, what other properties the landlord and the person moving in have, the percentage of interest the owner holds in the property, and the fact that advice is available from the Rent Board.
Under a new law passed this year, the landlord has to file paperwork with the Rent Board to show that she is living in the property. That legislation also allows nonprofits the right to sue on behalf of a tenant who had been fraudulently evicted via OMI and waived his or her rights under some agreement. Call our clinic Monday through Thursday, 1-5pm, 415-703-8644 for more info.
Tenants can NOT be evicted through OMI if:
1. They’ve lived in the unit for 10 years or more and 60 or older, or they are disabled.
2. They are catastrophically ill and have lived in the unit for five years or more.
Note: These protections do not apply if the person moving in is a senior or disabled, or if the place in question is a single-family home. If the home has an in-law unit or a garage apartment (or is divided into two or more separate floors with separate rental agreements with the landlord), then the protections DO apply because it is considered more than one unit. Check with our office if you’re in doubt about how many units are in your place. The owner needs at least a 25% recorded interest in the property to evict for OMI. Verbal or oral threats or warnings of an OMI are not an eviction notice. These threats do not have to be filed with the Rent Board, but the subsequent written notice must be filed with the Rent Board within 10 days of serving it to the tenant. Also proof of service must be filed with the Rent Board.
OMI OF A FAMILY WITH KIDS: A family with children under 18 who has lived in the unit for more than a year cannot be evicted during the school year. The landlord must wait until the school year is through to do the eviction. That means the eviction notice (of 30 or 60 days) must be given in enough time for the eviction to be completed before the school year begins again. This does not apply if there is only one rental unit in the building; or if the landlord moving in also has a minor child (under 18). According to the SF Rent Board, this also applies to anyone “who works at a school as an employee per 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.”
RELOCATION MONEY: See chart below. The landlord must pay a certain amount to each tenant who has lived in the unit 12 months or more (half at the time of notice, the remainder upon move-out). See chart below. Disabled seniors (over 60) and households with children receive an additional amount. There’s a cap for the apartment, but that does not include the additional money for seniors, the disabled or minor children. Relocation benefits apply to all housing, even single-family dwellings and condos. The amount increases every year, based on cost of living index. The following OMI relocation chart also applies to demolition or permanent removal of unit from housing; substantial rehabilitation; and capital improvement evictions. The latter two — substantial rehabilitation and capital improvement — are temporary.
|date of service
|additional for elderly or
disabled or household w/
If you receive an OMI eviction notice:
1. Check with the Assessor’s Office at City Hall (415-554-5525 or drop in at City Hall room 195) to verify that the landlord or the person moving in (if applicable) holds the required interest in the property.
2. Check with the Assessor’s Office to find out where the owner/person who plans to move into your unit lives. Checking on the web may not be enough since records of property transfers do not make it into the online database for a while after they occur. If the owner has another primary residence, especially one that s/he owns, you can argue that s/he doesn’t intend to move in.
3. Check to see if there are any comparable apartments in the building that are vacant or will become vacant before your notice period expires. If a comparable apartment is available, the landlord or family member must offer it to you. But they can charge you market rate and not the rent-controlled rate you’re paying at the current unit.
4. If everything is in order, try to negotiate with your landlord to pay your moving expenses or to give you more time to move. If you can, get legal advice from a lawyer. We have a list we can email you.
5. Follow up with neighbors to verify that the landlord actually moves into the apartment. If she does not move in, consult an attorney.
6. Call our counseling line (415) 703-8644, Monday through Thursday, 1-5pm, for further information or if you have questions.
A landlord may evict all tenants in a building in order to “go out of the business of being a landlord.” Landlords must file a “Notice of Intent to Withdraw” with the Rent Board within ten days of serving notice to tenants. One-year notices are required for tenants who are 62 years and older or disabled; 120-day notices for all other tenants. Landlords must pay each tenant a certain amount (see chart below) with a household cap for relocation costs. See chart below for latest relocation benefits. NOTE: The amount changes every year, adjusted for cost of living. Disabled and senior tenants also receive an additional amount above the cap, as do households with children. The chart below gives the yearly increases:
|date of filing
of Ellis notice
If the landlord re-rents the unit within five years, the tenant has the right to move back at the same rent. Tenants should write the landlord within 30 days of moving out, stating their desire to move back if the unit is re-rented. Include an address where you can be reached.
Under state law, landlords of SROs can’t Ellis them if they received a permit of occupancy prior to 1/1/90 and have not sent a notice of intent to withdraw the place from rental prior to 1/1/04.
A landlord has to register a buyout offer with the Rent Board via a “pre-buyout negotiations disclosure form” and send in a declaration that he has served the buyout negotiation form before he can even begin negotiating any amount or terms. None of this can be done verbally.
A tenant does not have to agree to enter into a buyout negotiation, but if s/he does, s/he can consult a lawyer and back out of the agreement within 45 days of signing it. The final agreement must be filed with the Rent Board within 46-59 days. Any violation of this law can be enforced via civil action in state court. A landlord’s ability to condo convert may be effected by buyouts if a senior, disabled or catastrophically ill person is given a buyout, or if two or more tenants got buyouts up to ten years before the condo conversion is approved.
In order to perform capital improvements on the building, landlords can ask tenants to temporarily vacate their units.
• Landlords must obtain all necessary permits from the Department of Building Inspections before giving the tenant a 60-day notice to vacate. The work should not take longer than 90 days, although landlord can petition the Rent Board to renew the notice for another 90 days, if needed. Landlords must pay the tenant relocation money, just as with OMI and Ellis Act evictions (see the chart under OMI relocation benefits above for actual amount). The tenant must be notified when the unit is ready for re-occupancy IF the tenant lets the landlord know before moving that s/he is interested in re-occupancy. It’s important to put that in writing. If the relocation is for less than 20 days, then the relocation money is $379/day plus actual moving expenses. If the landlord then extends the time beyond the 20 days, then the tenant may be entitled to the other relocation amount under OMI relocation above. It doesn’t hurt to ask for the extra money.
• Landlords cannot raise the tenant’s rent to pay for capital improvements until the Rent Board conducts a hearing and approves a capital improvement rent increase pass-through. There are two petitions: one for building with 1-5 units; the other for 6 or more. Landlord can give a notice of the rent increase and charge the tenant retroactively back to the date on that notice, but the tenant need not start paying until the Rent Board approves the passthrough. It’s the tenant’s choice whether he or she wants to start paying immediately or wait until the Rent Board decision. It’s possible the Rent Board will change the amount the landlord is requesting.
LANDLORD CAN’T LOCK YOU OUT
An eviction is a legal process involving court action. Landlords can not evict tenants without going to court, or try to force them out by turning off the utilities or changing the locks. If your landlord attempts any of these tactics to force you out:
1. Call the police at (415)553-0123. Under Penal Code 418, your landlord is guilty of a misdemeanor. You have the right to regain entry into your apartment.
2.If your utilities have been turned off, call the utility company and try to have them turned back on.
3. Keep a log of these incidents. Write a letter to your landlord stating that you are aware of your rights and that you want the situation remedied without further harassment. Keep a copy, as it may be used as evidence in your defense should you ever go to court.
California Civil Code 1942.5 says a landlord can not retaliate against tenants by evicting them or raising the rent. If your landlord tries to evict you within six months of an action you have taken to assert your rights (such as filing a petition at the Rent Board or calling a building inspector), you may have a defense against it. Make sure you keep copies of all actions which might be cause for retaliation, such as Rent Board notices, Building Inspection notices, etc.
In order to evict a tenant, a written notice to vacate must be properly served. First your landlord must try to find you and hand the notice to you. If your landlord can’t find you, the notice may be handed to a “person of suitable age [over 18] and discretion” at your home or work. A copy must be mailed to you. If your landlord cannot find a suitable person to leave the notice with, s/he can post it in a conspicuous place on your premises and mail a copy to you.
In units covered by rent control, this notice must state the grounds for eviction (just cause, see above), and that advice is available from the Rent Board. An improper notice can be used to defeat an eviction, but only if the tenant responds to the notice. The legal process of eviction begins with a three, 30 or 60-day notice (some forms of subsidized housing such as Section 8 will use seven, 10 or 14-day notices). Ellis evictions require 120 day notices, though seniors and disabled persons get a year.
A three-day notice to cure or quit can be given to a tenant who has not paid rent on time or who is violating or breaching a lease agreement. A three-day notice is a warning that if the rent is not paid or the beach cured within three days you can be taken to court to be evicted. A three-day notice doesn’t mean you’ll be thrown out of your apartment in three days.
The notice must state the correct amount of rent owed and the name and address of the person to whom the rent should be paid as well as the address where you can pay it. Your landlord must accept the rent if you pay it within the three days. After the three-day period, he does NOT have to accept the money. If you need rental assistance to cure the three-day notice, check out the list here.
If, at the end of the three, 30 or 60-day notice period the tenant does not voluntarily move out, a landlord must file an Unlawful Detainer to remove the tenant from the rental unit. When the Unlawful Detainer is served, you have five days (weekends count, holidays don’t!) to file a response. To file your response, you should get legal assistance from the Eviction Defense Collaborative: 1338 Mission, 4th floor, 9:30-11:30am and 1-3pm. If a response is not filed on time, your landlord may obtain a default judgment, which quickens the process.
After you respond, the court will set up a settlement conference, at which time you and your landlord can present your arguments and possibly come to an agreement. You do NOT have to agree to a settlement at this conference–if you do not, the case will go to trial. Only after your landlord wins at trial can you be removed from your unit, but not by the landlord or the police.
If your landlord wins the court decision or if you neglect to answer the summons and the landlord gets a default judgement, the Sheriff’s office will post a five-day “Notice to Vacate” on your door. After five days (and usually on a Wednesday, that’s the day the sheriff does evictions), the locks on the doors can be changed by the Sheriff and only the Sheriff. If your belongings are not out of the apartment when the locks are changed, they will be put into storage and you will be liable for the cost. You will have 14 days to get them. If you don’t, the landlord can sell or destroy them. Once you receive the Sheriff’s notice, you can file a motion in court asking for another week. It’s called a “stay.” You can often do this twice. You will have to be able to pay the week’s rent in cash or money order in order to receive the stay. The court hears petitions for stays on Tuesday, the day before the Sheriff comes. Eviction Defense Collaborative can help you prepare the papers for court. Below, see info on contacting them.
LEGAL ASSISTANCE FROM EDC
To respond to an Unlawful Detainer you need to obtain legal assistance. The Eviction Defense Collaborative (EDC) assists tenants in responding to the court papers. Bring your papers to the EDC, 1338 Mission, 4th floor, 9:30-11:30 am and 1-3 pm. Do not call. Drop in to talk to a counselor during counseling hours.
IN CASE OF FIRE
Here’s a quick guide to the rights of a tenant who is displaced by fire:
You have the right to return to your place when repairs are done. Send a letter (via certified mail with return receipt requested) to your landlord indicating that you plan to return.
Your landlord must notify you when your apartment is ready. You must give your landlord your address and contact info so that he can let you know when the place is repaired.
Once the place is repaired and the landlord offers it back, the tenant must let the landlord know within 30 days whether she will return and reoccupy it.
If the fire was caused by neglect on the part of the landlord (in not repairing the wiring, for example), then you may have a claim against him in court. You should file a claim with the landlord’s insurance company although a landlord has no obligation to cover a tenant’s losses unless it can be proven that the landlord was negligent. You should also obtain all police and fire department reports as evidence.
If you cannot live in your place after the fire (this will be in the fire department report), then you do NOT have to pay rent until it is repaired. Once repaired, the rent remains the same unless the landlord petitions the Rent Board for a capital-improvement passthrough. If he does, Rent Board will hold hearing and determine if he is entitled to an increase.
If the landlord does not offer the place back to the displaced tenant and instead rents to someone else, the displaced person can file for wrongful eviction.
Under a new amendment to the rent ordinance, a “Good Samaritan” landlord can rent to a tenant displaced by fire or public health/safety issue at the same rent the tenant was paying in the apartment from which he was forced to move, but only for an agreed upon period, not to exceed a year. A one-year extension can be granted to that agreement. After that period, the landlord can raise the rent up to market and evict, if the tenant doesn’t leave and the landlord wants him to. A city official (such as a fire or DBI inspector) must verify that the tenant was displaced. The Rent Board is still working out the details on this amendment, so stay tuned for updates.
Under a new law, landlords have to issue regular reports to the city and to persons who are displaced by fires, indicating the progress of the reconstruction of the building and when tenants can enter to retrieve what they can and when they can re-occupy the unit.
Other bits and pieces about evictions
Under CA Civil Code 1940.2, it’s unlawful for a landlord to threaten a tenant in order to force him to move or to interfere with his quiet enjoyment.
A landlord can NOT demand rent, collect rent, issue a notice of rent increase, issue a notice to pay rent or quit, any of these things–IF THERE IS AN OUTSTANDING NOV (“notice of violation,” such as one from the Department of Building Inspections or the Health Department) for at least 35 days. We don’t recommend the withholding of rent, but if you should decide to do it, consult an attorney. We can provide you with a list of tenants rights attorneys in SF.
A tenant must be represented by legal counsel in a court-supervised settlement agreement in order to waive any rights under the rent ordinance, 37.10A(g). This applies to all settlement agreements, even in Ellis and OMI evictions.
The grounds cited in an eviction notice must be adhered to, regardless of any agreement. So if a landlord OMIs a place, she must still move into that place despite any agreement.