Doing an Owner Move-In Eviction

My tenant’s one-year lease is up and he’s now on a month-to-month tenancy. However, I want the apartment back. How much notice do I need to give the tenant to vacate? Will I need to pay my tenant to move?

If the apartment building was constructed before June 13, 1979, it most likely falls under the San Francisco rent law. This means that the owner must invoke one of the fifteen approved “just cause” reasons to end a tenancy, unless the tenant voluntarily vacates. One of the just cause grounds is NOT lease expiration.

An approved just cause reasons is owner move-in, or OMI. The City’s OMI law has changed over time, and today’s version contains some fairly strict and onerous requirements. For starters, the evicting owner must hold at least a 25% recorded interest in the building. Secondly, when displacing a tenant for OMI, you must commit to live in the unit as your principal place of residence for at least the next 36 consecutive months. This means you have to make the apartment your primary residence rather than using it occasionally while residing elsewhere. You also cannot have any available comparable units, and if a non-comparable unit is vacant and available, it has to be offered to the tenants you are evicting (at market rent).

The law also mandates that only one unit per building can be recovered for OMI. Thus, if another OMI occurred in the building on a different unit, you may have a problem. Also, certain tenants in multi-unit buildings are exempt from being evicted under the OMI law. For example, tenants who resided in the unit for more than 10 years and are 60 years or older cannot be evicted; likewise, tenants who have lived in the unit for 10 or more years and are disabled are protected, as well as catastrophically ill tenants who have lived there for 5 or more years. Recently, the law was amended to protect families with school-aged children from OMI evictions during the school year.

As for notice, a thirty-day period to vacate is required for all tenancies under one year. If the tenants have resided in the unit for one year or more, you must provide a sixty day notice. In addition, for all tenancies over 12 months, the rent law currently requires the following relocation payments (valid through February 29, 2012): $5,101 per tenant, regardless of age (so even minors receive this amount), with a maximum of $15,304 per unit. However, the additional amount of $3,401 must be paid to each elderly tenant (60 years or older) or disabled tenant or household with minor children.

Even if you satisfy all of these requirements, a tenant could still demand a jury trial and challenge your “good faith and honest intent.” In other words, a tenant could claim that you are really doing the OMI to displace a low rent paying tenant and that you do not intent to legitimately use the unit as your home. The threat of litigation persists throughout the three-year period following the eviction, as the tenant may monitor your usage of the unit to ensure that it is being used as a principal place of residence.

In sum, consult with a landlord attorney before initiating an OMI. These complicated evictions must be handled by a professional, and make sure you are acting without an ulterior motive before starting the process.

DW

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