Jasna Veledar, Hooshmand Law Group
A very common type of eviction in San Francisco is one where a tenant is displaced so that an owner or owner’s relative can move into the unit. Under San Francisco Administrative Code Section 37.9(a)(8), subject to certain restrictions, a landlord can evict a tenant to pursue an owner move-in (OMI) eviction only if
a) the landlord is going to move into the unit to live,
b) if the landlord is living in the building already, or
c) if a close relative moves in and lives in the unit.
Most importantly, an owner who seeks to recover possession of a unit for an owner or relative to move in must do so in good faith, without ulterior motive, and with honest intent. Unfortunately, however, OMI evictions are frequently abused by landlords who seek to evict tenants from their rent controlled units.
Landlords doing an improper OMI eviction generally give tenants warning notices or letters stating that they will be doing an OMI eviction. These notices are often illegal and cause tenants to fear eviction, and often even voluntarily leave the unit. Other landlords take more drastic action by harassing tenants with unauthorized entry into the unit, threats of the owner’s family moving into the unit, or false claims of untimely rental payments. Tenants should not move out pursuant to such letters, threats, or warnings that an OMI eviction is forthcoming. Instead, tenants can fight OMI evictions on bad faith grounds, or for violations of specific requirements and restrictions.
First and foremost, other than in very specific circumstances, including if a tenant has lived in the unit for less than a year, an OMI eviction notice must be a 60 day notice. The legislation also requires landlords to give tenants basic information about the landlord’s property holdings and where the landlord (or relative) currently lives, within 10 days of the eviction notice.
There are several other requirements and restrictions to perform an OMI, including:
Only One OMI Eviction Per Building. OMI evictions are limited to one per building and any future evictions must occur in the same unit. Very few exceptions exist to this prohibition, including the landlord’s “disability or similar hardship” or multiple unit OMIs for close relatives of the landlord if the landlord already lives there or is “simultaneously” moving in. This rule applies indefinitely and to all owners regardless if the building is resold.
Relatives of Landlord Restricted To Buildings Where Landlord Is Living. Relative move-in evictions are restricted to the building in which the landlord lives.
Landlord Must Move In Within 3 Months and Live There 3 Years. The landlord (or relative) must move in within 3 months of when the tenant vacates and the landlord (or relative) must live in the unit for 36 months.
Re-Rental of Units Restricted. In cases where an owner decides to re-rent a unit after evicting a tenant under the premise of owner occupancy but before the expiration of the 36-month requirement, the unit must be offered to the evicted tenant at the previous rental rate. If the offer is declined, the unit may only be offered to the public at the previous rental rate.
Owner Interest. The evicting owner must own a 25 percent interest in the property only if the interest was recorded on or before February 21, 1991.
To take things one step further and in order to protect senior and disabled tenants and households with children, some tenants are protected from procedurally proper OMI evictions altogether. Senior tenants over the age of 60 or disabled tenants who are SSI eligible with 10 or more years tenancy or catastrophically ill tenants with SSI eligibility with 5 or more years tenancy receive special protections.
These tenants cannot be evicted for OMI unless every unit in the multi-unit building, besides the unit occupied by the landlord, is occupied by such tenants and if the landlord is evicting for a relative who is age 60 or older. Any tenant who claims to have protected status must notify the owner of the tenant’s protected status within specific time and manner requirements. Households with children that have a tenancy of at least 12 months are also protected unless the OMI eviction is not during the school year, the landlord will move in with a child, or the landlord only owns one unit in the building.
An important and frequently ignored component of an OMI eviction is that landlords must pay relocation amounts to tenants.
This payment is above and beyond any security deposits, and the tenant is not prevented from negotiating a higher relocation payment. The landlord must pay half of the relocation payment at the time of the eviction notice and the other half when the tenant vacates. Tenants who are children under 18 years of age are also entitled to relocation payments. For Eviction Notices served after March 1, 2015, tenants who lived in the unit for one year or longer are entitled to $5,551.00 each, and up to a maximum of $16,653.00 per unit. Tenants that are over the age of 60, disabled, or households with children are entitled to an additional $3,701.00.
In order to prevent bad faith OMI evictions, if a comparable unit in the building is vacant or becomes vacant during the period of the notice terminating tenancy, then the notice must be rescinded. A vacant, non-comparable unit owned in San Francisco must be offered to the tenant being evicted at market rate. If a non-comparable unit becomes available, the landlord must offer that unit to the tenant. Bad faith is presumed if a landlord times the service of the notice or the filing of an action to recover possession to avoid moving into a comparable unit, or to avoid offering a tenant a replacement unit. Bad faith is also presumed for failure of the owner or relative to move in or occupy the unit for the full 36-month period.
Each month the Rent Board selects a random sample of 10 percent of all notices which state owner or relative occupancy as the reason for eviction, and transmits this list to the District Attorney for possible investigation. Thus, landlords evicting out of bad faith or with ulterior motive may be caught and prosecuted. While tenants may fear eviction and believe false warning letters landlords may send out, tenants are protected from bad faith OMIs and have options of legal recourse.
About the author:
Jasna Veledar is an associate at the Hooshmand Law Group, where she focuses her practice on landlord-tenant litigation and business litigation matters.