Posted by wasserman
I’m confused by the new 10-day notice legislation. Do I have to serve both a 10-day notice and a 3-day notice? What is the difference?
San Francisco now requires a warning notice to be sent before an owner may serve a formal eviction notice. The new 10-day warning procedure was legislatively created because of a concern that some residents might not have enough time to cure objectionable conduct or may otherwise be confused about when a lease violation has to stop. In response, this ten-day “cure period” was implemented to, in the words of the Supervisors, “provide clarity around what constitutes just cause” to terminate a tenancy so as to avoid a potential housing displacement.
So here’s how it works. Under state law, tenants are usually afforded three days to cure a lease violation, whether that violation is a failure to pay rent, to rectify the breach of a lease obligation, or to curtail objectionable behavior. For example, if the resident is smoking inside the residence and the lease prohibits smoking, an owner may issue a notice giving the tenant three days to stop this activity or risk being evicted. There are a series of rules that determine how the three days are to be counted, so oftentimes tenants are not aware of when the deadline exists for the cure period. The new 10-day rule informs the offenders that they have ten days after receipt of the written warning to rectify whatever it is the owner finds to be problematic. Only after the ten-day period expires may the owner then issue a formal three-day notice, and only after the three day period expires may the owner commence eviction proceedings in court. In essence, this new procedural requirement affords tenants about 15 to 20 days to address landlord grievances. Both the Rent Board and the SFAA have developed a 10-day form to use.
The 10-day rule applies to the following “just causes” under the San Francisco Rent Ordinance: (i) failure to pay rent; (ii) breach of a lease covenant; (iii) the commission of a nuisance; (iv) using the apartment for an illegal purpose; (v) refusing to renew an expiring lease term; and (vi) denying the landlord lawful access to the residence. The 10-day rule does not apply when the tenant is causing or creating an imminent risk of physical harm to persons or property.
One problem with this new rule is that the 10-day notice elongates the rent collection processes. Since the 10-day warning must be issued and must expire before the three-day demand may be sent, and because the 10-day notice may only be delivered when there is an actual breach of the rental agreement, owners are likely to be stuck waiting until the third or fourth week of the month before initiating nonpayment of rent eviction actions in court. Also, the ten-day warning period seemingly permits a resident to keep curing and then re-offending. Indeed, the above smoking example is apropos. Someone could smoke, be warned, stop, and then start smoking again only to receive another 10-day warning.
In response to the law’s passage, SFAA brought a legal challenge against the City on the basis that local legislatures cannot in most instances change state eviction procedural regulations. By injecting this ten-day requirement onto most unlawful detainer (eviction) proceedings that are governed by state statutes, the Board of Supervisors may have overstepped its authority. So please stay tuned to the SFAA announcements with regard to this industry challenge. However, until there is final resolution in our favor, please continue to use the 10-day warning notice.