Post & Found: Eviction Control v. Rent Control - Is It Possible To Evict From a Single Family House In San Francisco?

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Eviction Control v. Rent Control - Is It Possible To Evict

From a Single Family House In San Francisco?
A common wisdom holds that, while certain housing units are exempt from the Rent Control
in San Francisco, they are still subject to the Eviction Control. That is, even if you can raise
rent in those units above the limits dictated by the Rent Board, you still can't evict a person
but for the defined "just cause" reasons. Such is the statement in Topic No. 19, issued by the
San Francisco Rent Board.
Yet a close analysis of applicable sections of the SF Administrative Code indicates that an
exception to the rule does exist, albeit a very narrow one. Despite what is said in the Topic
No. 19, the prohibition is not absolute.
True, limitations on the rent increase are curtailed by the Costa-Hawkings Act, exempting
certain units from the Rent Control coverage. For instance, single family residences are
exempt. CC 1954.52(a)(3). Yet in the same statute we find that "[n]othing in this section
shall be construed to affect the authority of a public entity that may otherwise exist to
regulate or monitor the basis for eviction." CC 1954.52(c).
This compels us to look, how local authorities regulate the basis for eviction. Should we be
in Los Angeles, the answer is clear and easily found: single-family residencies are exempt.
But in San Francisco, the answer is scattered among several sections, and a lot of stars have
to line up to have a unit exempt, even if it is a single-family residence.
We should start from the Section 37.9, which defines "just causes" of eviction. It begins with
a preamble: "Notwithstanding Section 37.3, this Section shall apply as of August 24, 1980, to
all landlords and tenants of rental units as defined in Section 37.2(r)." Remember to check
about the 37.3, but let's start from the definition of the "rental unit" in Section 37.2(r). I
have put here the important parts for our analysis:
(r) Rental Units. All residential dwelling units in the City and County of San
Francisco together with the land and appurtenant buildings thereto, and all
housing services, privileges, furnishings and facilities supplied in connection
with the use or occupancy thereof, including garage and parking facilities.
...
The term "rental units" shall not include:
...
(5) Rental units located in a structure for which a certificate of occupancy was
first issued after the effective date of this ordinance; (A) except as provided

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Post & Found: Eviction Control v. Rent Control - Is It Possible To Evict From a Single Family House In San Francisco?

1/23/15, 9:27 PM

for certain categories of units and dwellings by Section 37.3(d) and Section
37.9A(b) of this Chapter;
...
(7) Dwellings or units otherwise subject to this Chapter 37, to the extent such
dwelling or units are partially or wholly exempted from rent increase
limitations by the Costa-Hawkins Residential Housing Act (California Civil Code
Sections 1954.50, et seq.) and/or San Francisco Administrative Code Section
37.3(d).
In my opinion, it meant to say that, depending on how your unit fits the definition of
37.3(d), it either is exempt from the "rental unit" definition under 37.2(r)(7), or not exempt
(literally, excepted from the exemption) under 37.2(r)(5). I say "in my opinion," because this
is not crystal-clear: remember that the 37.9 preamble starts with a qualifier
"notwithstanding Section 37.3 ..." If I am wrong, we can stop right here, but if I am right,
let's look at 37.3(d).
Section 37.3(d) provides:
(d) Costa-Hawkins Rental Housing Act (Civil Code Sections 1954.50, et seq.).
Consistent with the Costa-Hawkins Rental Housing Act (Civil Code Sections
1954.50, et seq.) and regardless of whether otherwise provided under Chapter
37:
(1) Property Owner Rights to Establish Initial and All Subsequent Rental Rates
for Separately Alienable Parcels.
(A) An owner of residential real property may establish the initial and all
subsequent rental rates for a dwelling or a unit which is alienable separate from
the title to any other dwelling unit or is a subdivided interest in a subdivision
as specified in subdivision (b), (d), or (f) of Section 11004.5 of the California
Business and Professions Code. The owner's right to establish subsequent
rental rates under this paragraph shall not apply to a dwelling or unit where the
preceding tenancy has been terminated by the owner by notice pursuant to
California Civil Code Section 1946 or has been terminated upon a change in the
terms of the tenancy noticed pursuant to California Civil Code Section 827: in
such instances, the rent increase limitation provisions of Chapter 37 shall
continue to apply for the duration of the new tenancy in that dwelling or unit.
(B) Where the initial or subsequent rental rates of a Subsection 37.3(d)(1)(A)
dwelling or unit were controlled by the provisions of Chapter 37 on January 1,
1995, the following shall apply:
(i) A tenancy that was in effect on December 31, 1995 remains subject to
the rent control provisions of this Chapter 37, and the owner may not
otherwise establish the subsequent rental rates for that tenancy.
(ii) On or after January 1, 1999 an owner may establish the initial and all
subsequent rental rates for any tenancy created on or after January 1,
1996.
In a short and over-simplified summary, it reads like this: (i) find out if it is a single-family
residence, then (ii) see if CC 1946 or 827 was invoked, and if "yes" on the first and "no" on
the second step, then it won't be a "rental unit" (Sec. 37.2(r)(7)), otherwise it will be (Sec.
37.2(r)(5)).
Note, that our local ordinance mentions CC 1946. Costa-Hawkings in a similar limitation
refers to CC 1946.1 [CC 1954.52(a)(3)(B)(i)]. All these statutes (CC 1946, 1946.1, and 827)
deal with a month-to-month tenancy or a tenancy for an unspecified period of time. The
common part is that a termination or a change of terms in such tenancies requires a notice.
See also, CC 791.
On the other hand, a tenancy for a fixed period of time, say a year, requires no notice and
terminates by itself. See, CC 1933(1); CC 793; CEB Landlord-Tenant Litigation, Sec. 4.11.
Putting it together, if the physical unit itself complies with the requirement for exemption,
the test is then to check if the landlord also complied with the procedural part, i.e. did not
treat the unit under any of the statutes requiring notice for termination. The only scenario
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Post & Found: Eviction Control v. Rent Control - Is It Possible To Evict From a Single Family House In San Francisco?

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when the notice is not required is if the lease was for a fixed term, and the eviction is
sought upon that term's expiration, not sooner and not later. "Later" is technically Ok, if no
consequent rent payment was accepted (CC 1945), but waiting for too long is impracticable,
see e.g., Section 37.2(r)(1). Landlords shall prepare to argue that no new tenancy is created
by the holding over without consent. Ryland v. Appelbaum, 70 Cal.App. 268 (1924). Tenants
would seek a chance to make an argument similar to one made in Ellis v. Columbine
Creamery, 83 Cal.App. 48 (1927).
Can a landlord maintain that fragile particular dedication of the premises being rented for a
fixed term? It appears that the answer is "Yes," because even for rent-controlled units, there
is a just cause for evicting a tenant refusing to sign a new lease for a fixed term, Section
37.9(a)(5):
The tenant, who had an oral or written agreement with the landlord which has
terminated, has refused after written request or demand by the landlord to
execute a written extension or renewal thereof for a further term of like
duration and under such terms which are materially the same as in the
previous agreement; provided, that such terms do not conflict with any of the
provisions of this Chapter;
In theory, all the landlords have to do is to ensure they don't miss the date when the old
fixed-term lease expires to have the tenant to sign a new fixed-term lease. This way, at the
end of that fixed term, the landlord can evict, provided that the unit and other prerequisites
fit the bill.
In reality, it appears to work well after the first expiration. Second and later consequent
leases create an opportunity for tenants to argue, why the lease was renewed at the end of
the previous term, but not renewed now. It may also be advantageous to consider a longer
fixed term at the inception, like two or three years. I didn't see authority capping the length
of the fixed-term lease. The court in Ryland v. Appelbaum upheld a 3-year fixed term lease.
Other exceptions under 37.2(r), such as units rented through government-subsidized housing
(Section 8 or SFHA contract, and alike), have they own particulars, and they are not always
obvious. For instance, under some of those programs, the rent agreements are renewed
annually, but this is not true for the actual Section 8 HUD agreement, where only the rent
values are renewed (or changed), leaving the rest of the agreement the same.

______________________
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at 11:47 PM

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Labels: california, case law, condominium, eviction, landlord, legislation, real property, rent boarD, rent
ordinance, San Francisco, tenant, unlawful detainer

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Post & Found: Eviction Control v. Rent Control - Is It Possible To Evict From a Single Family House In San Francisco?

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