Owner Move-In Eviction Requirements

Owners have the right to evict tenants for the purposes of residing in one of their residential units or single family homes. Termed an Owner Move In Eviction or OMI, Owners seeking to recover a rental unit or single family home must meet certain requirements as set forth in the San Francisco Rent Ordinance Section 37.9(a)(8)(i). The requirements are as follows:

Good Faith
First and foremost, 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. Only one unit in a given building can be the subject of an owner occupancy eviction. This rule applies indefinitely and to all owners regardless if the building is resold.

Percentage of Ownership Required
An owner who wishes to evict a tenant for owner or relative occupancy must have at least a 25% interest in the building, if the ownership interest was recorded after February 21, 1991. If ownership was recorded on or before February 21, 1991, then the owner is only required to have a 10% minimum interest. Domestic partners can combine their interests to achieve the required 10% or 25% interest in order to occupy a unit.

Owners’ Principal Place of Residence
The owner or relative should move into the unit within three months and intend to occupy the unit as that person’s principal residence for at least 36 continuous months. 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the building is vacant or becomes vacant during the period of the notice terminating tenancy, then the notice must be rescinded.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 albeit at market rate. If a non-comparable unit becomes available before the recovery of possession, the landlord shall offer that unit to the tenant. It shall be evidence of a lack of good faith if a landlord times the service of the notice, or the filing of an action to recover possession, so as to avoid moving into a comparable unit, or to avoid offering a tenant a replacement unit. Note that failure of the owner or relative to move in or occupy the unit for the full 36-month period is evidence of the landlord’s failure to act in good faith. Each month the Rent Board selects a random sample of 10% 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.

Relocation Expenses
San Francisco tenants in rent-controlled units who receive owner move-in eviction notices are entitled to relocation expenses. As of March 1, 2012 tenants who lived in the unit for one year or longer are entitled to $5,153.00 each, up to a maximum of $15,460.00 per unit. Tenants that are over the age of 60, disabled, or households with children are entitled to an additional $3,436.00.

Restrictions and Conditions
The Ordinance generally permits the eviction of tenants from only one unit for the owner’s use and occupancy. Where a tenant is evicted for owner occupancy after December 18, 1998, that unit is designated as the owner’s unit for purposes of subsequent owner-occupancy evictions, unless the owner’s disability or other similar hardship prevents occupancy of that unit.

Tenants who are 60 years old or who meet the disability guidelines for federal Supplemental Security Income and who have lived in the unit at least 10 years, or tenants who are catastrophically ill and who have lived in the unit for at least 5 years, have a protected status and cannot be evicted for either the owner or the owner’s relative to move into a building of 2 units or more. The Rent Ordinance defines a tenant who is catastrophically ill as one who is disabled and who is suffering from a life-threatening illness as certified by his or her primary physician.

Any tenant who claims to have protected status must notify the owner of the tenant’s protected status within 30 days of receiving either a notice to vacate or a written request from the owner to declare the tenant’s protected status. The tenant must also include evidence supporting the claim of protected status. The tenant’s failure to submit a statement within the 30-day period shall be deemed an admission that the tenant does not have protected status. Owners who want to recover possession of the rental unit for owner or relative occupancy may contest a tenant’s claim of protected status either by filing a petition with the Rent Board or through eviction proceedings in court.

New Restriction on Owner Move-ins for Tenants Minor Children
On March 14, 2010, Ordinance No. 33-10 became law and added section 37.9(j) to the San Francisco Rent Ordinance, providing that a tenant who has resided in the unit for at least one year with a minor child may not be evicted during the school year for an owner or relative move-in eviction. However, there are two exceptions: an owner move-in eviction may proceed if there is only one unit owned by the landlord in the building; or, if there are multiple units in the building, an owner move-in eviction may proceed if the owner will move into the unit with a minor child. The eviction notice for owner move-in must inform the tenant of this new restriction, and that the tenant must submit a written claim of such protected status with supporting documentation within 30 days of receipt of the landlord’s notice. If a dispute arises regarding a tenant’s protected status can be decided by the court or the Rent Board

Re-Renting a Unit after Owner Occupancy Eviction
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.

While owner move in evictions are routinely undertaken in San Francisco, they are not easy and are riddled with many requirements. Indeed, even if the Owner fulfills all necessary requirements in order to serve an OMI eviction notice, the tenant can choose not to vacate the premises and the Owner will potentially be required to undertake a costly eviction action which is never a guaranteed win in San Francisco. This fact, combined with the expense of undertaking an OMI should and does cause many SF landlords to think long and hard before undertaking an OMI versus some other course of action including but not limited to a buy out as an alternative means of recovering possession. Should an Owner wish to move forward with an OMI, please do not attempt to do so without the advice of an attorney who specializes in this area since an error in the Notice alone can determine the fate of the OMI.

Daniel R. Stern, Esq.

WASSERMAN STERN

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