San Francisco Owner Move-In Eviction Attorney Mark Chernev

The San Francisco Rent Ordinance allows certain owners the ability to recover tenant-occupied rental units for personal use, thereby terminating the tenancy of all occupants. However, there are significant limitations on how and when an owner can perform these owner move-in evictions. These restrictions include the owner’s percentage of ownership, the building’s history, the protected status of certain tenants, and the availability of comparable units that are vacant and available or that may become available. Additionally, there are specific time constraints dictating when certain tenants can and cannot be evicted. Where there are minors or educators in the household, the termination notice cannot expire during the school year. Luckily for some, the timing is now.

Contrary to what you might think, there is no requirement that a child under age eighteen actually be enrolled in any school. The child only needs to have been living in the unit for at least twelve months and be under the age of eighteen. Even a two-year-old would qualify the household for the school year protection. 

The term “educator” is equally as liberal. It 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 having jurisdiction over the school. This includes 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 even learning support consultants. 

The term “school year” means the first day of instruction for the Fall Semester through the last day of instruction for the Spring Semester, as those dates are posted on the San Francisco Unified School District website for each year.

The San Francisco Fall Semester ends on June 4, 2024 and the Spring Semester begins on August 19, 2024. An owner move-in termination notice is a 60-day notice. This mean the window to serve an owner move-in or relative move-in eviction on a school year protected household is quickly approaching with the deadline not far behind.

The timing restrictions as well as the rules and regulations regarding owner move-in and relative move-in evictions are complex and always subject to challenge by both tenants and owners. If you are curious about learning more about evicting tenants in a property you own, or are looking to purchase or want to learn more about performing an eviction for yourself or for a relative so they can live in the same building as you, contact Mark Chernev at Zacks & Freedman, PC for guidance.

Neither this website nor this post are intended to create an attorney-client relationship.

Virtually all San Francisco residential tenants enjoy eviction controls after they have continuously been in possession thirty days.  This means that although a tenant’s lease may have expired after its initial term, that tenant cannot be evicted unless the landlord has one of the sixteen grounds for eviction authorized in the San Francisco Rent Ordinance.  The sixteen grounds for eviction are considered either “fault” or “no fault”.  The distinguishing factor between fault and no fault is whether the tenant is being evicted for something they did or for some reason other than having done something wrong.   Fault evictions include failing to pay rent, causing a nuisance, habitually paying rent late, or breaching a term of the lease.  In each of these cases the tenant is alleged to have done some act, or failed to act, as required by their lease, the law, or both.  No fault evictions include owner move-in evictions, capital improvements, seismic retrofitting, lead paint abatement, or the building’s withdrawal of residential rental use entirely.  Although a landlord would have little reason to be concerned with issues affecting the property after an at-fault eviction, no fault evictions most always have certain constraints associated with them, such as rental constraints, occupancy requirements, re-rental rights, or limitations on use.  

Often an owner may have just cause to evict – such as wanting to recover possession for personal use – but may be unwilling or unable to commit to the constraints, such as the 36-month occupancy requirement for an owner move-in.  Owners are always free to first approach tenants about buyouts before serving a termination notice in hopes of avoiding service of the notice and the associated constraints.  Before doing so, owners must provide the tenant with mandatory Pre-Buyout Disclosures and file the associated Landlord Declaration with the Rent Board.  Once done, owners and tenants are free to discuss the voluntary surrendering of possession in exchange for consideration.  Contrary to what people may believe, there are no requirements or regulations that limit how much or how little a tenant can be, or must be, paid to agree to move out.  Same for the agreed upon date surrender date.  It can be a soon or as late as the parties agree.  However, the further out the surrender date, the more important it becomes an owner have means to enforce the agreement in the event of breach. 

Unlike the service of certain no-fault eviction notices, there are no constraints for merely serving the buyout disclosures alone.  Where occupancy and rental constraints will be imposed on property after service of certain no-fault eviction notices – regardless of how or under what circumstances tenants ultimately vacate – no such constraints apply where buyout disclosures are served and declarations are filed.  So, short of the time and effort, there are no practical drawbacks of serving tenants with disclosures and testing the waters.  Buyout disclosures, declarations, and the buyout agreements themselves are regulated by law.  Any failure in compliance would render the agreement unenforceable which could force an owner to permit a tenant to return to the property long after having been paid and vacated if that tenant wanted to rescind the agreement.

The rules and regulations regarding buyouts and rent controls in San Francisco are complex and always subject to challenge by both tenants and owners.  If you are curious about learning more about buying out tenants in a property you own or are looking to purchase, or want to learn more about recovering possession of tenant-occupied units, it is advised that you contact an experienced San Francisco Real Estate lawyer with experience in handling evictions in San Francisco. 

San Francisco Real Estate Attorney Mark B. Chernev, Zacks & Freedman, PC, 601 Montgomery Street, Suite 400, San Francisco, CA  94111 : telephone 415 –956-8100 

The San Francisco Rent Ordinance regulates rent and eviction controls for residential units which are not exempt from regulations.  Jurisdiction over rent control and eviction control are not identical, but they often do overlap.  However, just because a residential unit is exempt from rent control does not necessarily mean the unit is exempt from eviction control.  

Until January 20, 2020, with limited exceptions, the Rent Ordinance only applied eviction controls to properties constructed before June 13, 1979.  Exempt from eviction controls were newly constructed units built after June 13, 1979, properties which had undergone substantial rehabilitation and remodeling, and live-work spaces.  San Francisco Local Ordinance 296-19 amended the Rent Ordinance on January 20, 2020, to now apply eviction controls to virtually all rental units in San Francisco, including previously exempt newly constructed units, units which had undergone substantial rehabilitation, and live-work spaces.  Federal housing (Fort Mason and the Presidio, etc.), dormitories, health care facilities, and commercial properties remain exempt.  A full list of exemptions from the Rent Ordinance can be found on the Rent Board’s web page.  As a practical matter, unless you’re running hotel, a school dorm, a healthcare facility, or a convent, your San Francisco residential property is most likely eviction controlled.  

What does that mean for property owners?  Once a tenant has been in possession for over thirty days, they cannot be evicted without meeting one of the sixteen grounds for just cause under the Rent Ordinance.  Those sixteen grounds fall under either “at fault” or no fault” evictions.  “At fault” is an eviction based on a tenant doing something wrong or not doing something required.  Not paying rent, breaching a material lease term, or committing a nuisance are typical at fault evictions.  “No fault” is an eviction where a tenant has not done anything wrong but is being evicted nonetheless.  An owner move-in or relative move-in eviction, Ellis Act withdrawal, or capital improvements eviction are typical no fault evictions.  San Francisco property owners are often surprised to learn that besides needing just cause to evict, they also must make relocation payments to tenants for no-fault evictions.  Relocation payments currently start at $7,421 per tenant and can easily exceed $25,000.  Additionally, the noticing requirements for no-fault evictions start at sixty days and in some cases can be extended up to a year.  Moreover, certain protections may limit when some no-fault eviction notices can be served and in particular cases they can be precluded entirely.  No such protections, timing constraints, or relocation payments are required for at-fault evictions.  Although the San Francisco Board of Supervisors has recently tried to require additional noticing and timing constraints for at-fault evictions, the attorneys at Zacks, Freedman and Patterson successfully pushed back. 

Another consequence of Local Ordinance 296-19’s expansion of eviction controls is that it subjects a greater population of landlords to wrongful eviction disputes under the Rent Ordinance, and to regulation by the Rent Ordinance’s buyout procedures contained in Section 37.9E of the Ordinance.  One silver lining of the Local Ordinance 296-19’s expansion of eviction controls, however, is the associated exemption from the California Tenant Protection Act of 2019.  Where the Tenant Protection act of 2019 could have arguably created rent controls for otherwise exempt newly constructed units as well as single-family homes, their inclusion in Local Ordinance 296-19 ensures that these types of units under most circumstances remain exempt from the Rent Ordinance’s rent controls. 

The rules and regulations regarding eviction controls and rent controls in San Francisco are complex and always subject to challenge by both tenants and owners.  If you are curios about learning more about evicting tenants in a property you own or are looking to purchase, or want to learn more about performing an eviction for yourself or a relative so they can live in the same building as you, it is advised that you contact an experienced San Francisco Real Estate lawyer with experience in handling owner move-in and relative move-in evictions in San Francisco. 

San Francisco Real Estate Attorney Mark B. Chernev, Zacks, Freedman & Patterson, PC, 601 Montgomery Street, Suite 400, San Francisco, CA  94111 : telephone 415 – 956-8100

            The San Francisco Rent Ordinance authorizes an owner to move into a tenant-occupied rental unit and terminate the tenancy of all occupants in possession.  This allowance, however does not come without its own set rules and restrictions.  One major obstacle that an owner looking to recover possession may face are the rules regarding “comparable” and “non-comparable” units located in the building containing the unit which the owner seeks to recover pursuant to an owner move-in eviction.

            37.9(a)(8)(iv) of the San Francisco Rent Ordinance states that a landlord may not recover possession pursuant to either an owner move-in eviction or a relative move-in eviction if a “comparable unit” owned by the landlord is already vacant and is available, or if such a unit becomes vacant and available before the recovery of possession of the unit.  If a comparable unit does become vacant and available before the recovery of possession, a landlord must rescind the notice to vacate and dismiss any action filed to recover possession of the premises.  Provided further, if a non-comparable unit becomes available before the recovery of possession, the landlord must offer that unit to the tenant.  Two issues emerge – what are comparable units and what are non-comparable units.

            An owner cannot evict a tenant to recover possession for themselves if a comparable unit is vacant and available in the same building.  The spirit of this rule makes sense.  If there is an empty unit that is similar to the one being occupied by a tenant, the owner should move into the vacant unit while preserving the tenancy of the other occupied unit.  This rule applies not only when an owner move-in eviction notice is served, but also throughout the time until possession is recovered.  For example, a San Francisco owner move-in termination notice is a 60-day notice.  If a comparable unit became available on the 45^th day after service of the termination notice, the owner would be obligated to rescind the notice and pursue occupancy of the vacant and available unit for themselves.

            In contrast, if a non-comparable unit were available or became available prior to recovery, an owner would not be required to rescind the notice and move into that non-comparable unit.  The spirit of this rule also makes sense.  If a unit that was not comparable to the unit the owner wanted, the law will not force them to move into that unit simply because it is available.  Instead, the owner’s obligation in this scenario would be only to offer that non-comparable unit to the tenant being displaced without typical rental amount constraints.  Furthermore, a non-comparable unit could also be located at a different location in San Francisco, or even outside of the City.

            The issue becomes – what’s the difference between a comparable and non-comparable unit?  There is no bright line answer although most scenarios are easier to conclude than others.  Number of bedrooms, bathrooms, and square footage are generally easy cases.  More complicated issues can present where units are seemingly comparable, but an owner’s particular needs dilutes similarities.  For someone who has challenges with stairs, an upper unit is not comparable to a lower unit.  The determination of comparability is subjective and objective.  Condos, TICs, and single-family homes generally avoid these issues – but not always. Diligence at the onset can avoid many of the potential pitfalls that comparable and non-comparable unit issues present.  Having confidence in comparability and non-comparability is essential tool an owner must have in making an effective decision prior to any owner move-in termination notice being served.

            The rules and regulations regarding comparable and non-comparable units for San Francisco owner move-in and relative move-in evictions are complex and always subject to challenge by both property owners and tenants.  If you are curious about learning more about performing a San Francisco owner move-in eviction or relative move-in eviction for a property you own or are looking to purchase, you should speak to an experienced San Francisco Real Estate attorney who represents owners and landlords in San Francisco.

            San Francisco Owner Move-In Eviction and Relative Move-In Eviction information provided by San Francisco Real Estate attorney Mark Chernev. 

Mark B. Chernev, Zacks, Freedman & Patterson, PC, 601 Montgomery Street, Suite 400, San Francisco, CA  94111 : telephone 415 – 956 – 8100  

Beginning January 1, 2018, all Owner Move-In termination notices must include a blank change of address form that the tenant being displaced can use to advise and update the San Francisco Rent Board of any change of address for that tenant

Beginning January 1, 2018, a landlord who serves an Owner Move-In termination notice must also include a declaration executed under the penalty of perjury stating that the landlord intends to recover possession of the subject Owner Move-In unit in good faith, and for use as the principal residence of the landlord (or relative in the case of a Relative Move-In) for a period of at least thirty-six continuous months. Although the obligation of a landlord to have the good faith intent to occupy the residence for at least thirty-six continuous months remains as it had been prior to the new laws, the new law requires the landlord to attest to having that good faith under the penalty of perjury.

Beginning January 1, 2018, once a landlord serves an Owner Move-In termination notice, the landlord must, within 90 days of service of that termination notice, file a periodic “Statement of Occupancy” form with the San Francisco Rent Board. This periodic Statement of Occupancy must be updated and filed every 90 days thereafter until the landlord recovers the possession of the unit. Once possession is recovered, the landlord must then file the Statement of Occupancy once a year for five years after recovering possession of the Owner Move-In unit. A landlord who has recovered possession must also include at least two forms of supporting documentation to the Statement of Occupancy that evidences the unit is being occupied by the landlord as their principal residence.

Beginning January 1, 2018, The San Francisco Rent Board is charged with sending a copy of each periodic and annual Statement of Occupancy to the displaced tenant. In the event a landlord has not filed a periodic or annual Statement of Occupancy with the Rent Board, then the Rent Board shall notice the displaced tenant of the landlord’s failure to do so. The Rent Board shall also assess an administrative penalty on any landlord who fails to file a Statement of Occupancy, including the two forms of supporting documentation, amounting to $250 for the first violation, $500 for the second violation, and $1,000 for each subsequent violation.

Starting January 1, 2018, and beginning 30 days after service of an Owner Move-In termination notice, the Rent Board shall send a notice to the affected Owner Move-In unit that states the maximum rent that can be charged for that unit. The Rent Board shall thereafter send every year, for five years, an updated notice that states the maximum rent that can be charged for that unit.

Although there has been no change in the time period which a landlord must have the good faith intent to occupy the subject Owner Move-In unit for, namely 36 months, the new legislation extends the re-rental rights which the displaced tenant has from three years to five years. Additionally, the re-rent offer, if made to the displaced tenant, must be filed with the Rent Board within fifteen days. Once filed, the tenant then has thirty days from receipt to accept the offer to re-rent, and if accepted, the tenant must reoccupy within forty-five days.

If you are curious about learning more about performing a San Francisco owner move-in eviction or relative move-in eviction for a property you own or are looking to purchase, you should speak to an experienced San Francisco Real Estate attorney who represents owners and landlords in San Francisco.

San Francisco Owner Move-In Eviction and Relative Move-In Eviction information provided by San Francisco Real Estate attorney Mark Chernev.

Mark B. Chernev, Zacks, Freedman & Patterson, PC, 601 Montgomery Street, Suite 400, San Francisco, CA 94111 : 415 – 956 – 8100

The San Francisco Rent Ordinance permits an owner to evict an otherwise eviction-controlled tenant as long as the owner possesses the good faith and honest intent to use the property as his or her principal residence for at least thirty-six continuous months. This would enable an owner to move in with whomever they wished to share their new home, such as a husband, wife, partner, friend or anyone else. But what if the building contains multiple tenant-occupied units and an owner wants to have family live in one of those other units? Enter the San Francisco relative move-in eviction.

Under the San Francisco Rent Ordinance, not only may an owner evict tenants so the owner can move into that specific unit, but an owner may also evict tenants in a different unit in the same building where an owner lives for use of the owner’s grandparents, grandchildren, parents, children, sibling, or spouse. In fact, an owner need not even be living in the building at the time a relative move-in eviction notice is served, as long as the landlord is simultaneously seeking possession pursuant to an owner move-in notice himself or herself. For example, a new owner could have purchased a tenant occupied two-unit building, serve one unit with an owner move-in termination notice, and serve the other unit with a relative move-in termination notice. The only restriction is the relative moving in must have the same good faith and honest intent to occupy the unit for at least thirty-six continuous months at the time the notice is served, just like an owner.
Continue reading “The San Francisco Relative Move-In Eviction: Keeping Your Family Close”

Probably a bit longer than you want, but not nearly as long as you may think. In general, San Francisco residential tenants who live in rental units that were constructed prior to June of 1979 enjoy eviction controls. This means that even though a tenant’s lease has expired, a landlord still may only evict a tenant for one of the sixteen reasons provided for in the San Francisco Rent Ordinance. New property owners in San Francisco, especially from outside the City and State, are often surprised to learn that they simply cannot have a tenant leave simply because the lease has expired. Unless the landlord has one (or more) of the sixteen “fault” or “no fault” grounds for eviction, the tenant cannot be forced to leave against their wishes.

The San Francisco Rent Ordinance permits an owner to recover possession of a rental unit from a tenant for the owner’s own residential use, as long as the owner complies with the procedural and factual requirements that are regulated by the Rent Ordinance itself. If so, an owner serves all occupants of the rental unit with a sixty-day notice of termination of tenancy. This notice of termination of tenancy requires all occupants to vacate the property by the end of the sixtieth day after the notice is served. If the tenants remain in possession after the sixty days, and the notice has expired, they are no longer legal occupants. They are considered holdover tenants who are unlawfully in possession.
Continue reading “How Long Is My San Francisco Owner Move-In Eviction Going To Take?”

Tenants in San Francisco who enjoy eviction protections can only be evicted for just cause as set forth in the San Francisco Rent Ordinance. Those causes are categorized as either “fault” or “no fault” grounds for eviction. A San Francisco owner move-in eviction is a “no fault” eviction because the tenants are not being evicted for doing anything wrong; they are not at “fault”. The Rent Ordinance requires landlords performing a no fault eviction to pay tenants a certain sum for relocation expenses in an amount set by law.

In San Francisco, no fault eviction relocation payments are regulated by the Rent Ordinance, which sets forth who and how much must be paid. First, only eligible tenants need be paid relocation money. An eligible tenant is defined as any authorized occupant of a rental unit, regardless of age, who has resided in the unit for twelve or more months. This means that an eligible tenant need not be an original tenant, nor must the eligible tenant even be on the lease. All which is required to establish eligibility for relocation purposes is that the occupant is authorized to be in possession and they have been there for at least twelve months.
Continue reading “How Much Does A San Francisco Owner Move-In Eviction Cost?”

Maybe. When an owner serves a termination notice pursuant to the owner move-in eviction provision under the San Francisco Rent Ordinance, the termination notice is a sixty-day notice that requires the tenants to vacate on or before the end of the sixtieth day. After that deadline, the tenancy has been terminated, the tenants are no longer legal occupants, and are considered holdover tenants. Just because they are unlawful occupants, however, they still have a legal right to possession until that right is either surrendered voluntarily by the tenants or terminated by court order.

The San Francisco Rent Ordinance requires a landlord to rescind an owner move-in eviction notice if a comparable unit becomes vacant and available prior to a landlord recovering possession. If the building containing the owner move-in unit also contained a comparable unit, and that comparable unit became both vacant and available prior to the landlord recovering possession, the notice must be rescinded. This requirement could even be interpreted so broadly to require a landlord to rescind the owner move-in notice not only while a landlord was litigating an unlawful detainer action for possession based on the owner move-in, but even after a landlord received judgment in their favor and was merely waiting for the sheriff to execute the writ of possession!
Continue reading “Would I Ever Have To Cancel My San Francisco Owner Move-In Eviction?”

Common problem, common solution. The San Francisco Rent Ordinance authorizes an owner to move into a tenant-occupied rental unit and terminate the tenancy of all occupants in possession, however the San Francisco Rent Ordinance restricts the right of an owner to do so in a number of material ways.

First, an Owner Move-In eviction (“OMI”) requires that an owner intend to occupy the unit as his or her principal place of residence for at least 36 continuous months. Second, the San Francisco Rent Ordinance generally allows only one OMI for the entire property if it is a multi-unit property, and if there was an OMI in the past, that previous OMI unit must be the OMI unit for any subsequent OMI. Likewise, if a buyer is considering purchasing a multi-unit property with the intent of performing an OMI, it would be advisable to investigate if any OMI had occurred at the property before, and if so, that the OMI unit is one the buyer is wiling to occupy. Third, the San Francisco Rent Ordinance generally prevents an owner from preforming an OMI if any tenant in the in the unit is “protected”. A protected tenant for purposes of an OMI means either: (1) the tenant is 60 years of age or older and has lived in the unit for at least 10 years; (2) the tenant is disabled and has lived in the unit for at least 10 years; or (3) the tenant is catastrophically ill and his lived in the unit for at least 5 years.
Continue reading “There’s A Tenant In My Apartment: Owner Move-In”