A proposed ordinance would require landlords pursuing certain types of evictions to first provide their tenants written notice and an opportunity to cure, unless the eviction is based on an imminent health or safety issue.
Throughout most of our legal careers, Bornstein Law has been able to serve 3-day notices demanding rent or that a tenant cease certain behaviors. If rent remained unpaid after three days, or if the underlying behavior continued, an unlawful detainer (eviction) action would then be filed. This was a rather perfunctory process.
For lawmakers in some locales, three days is not long enough to make a formal demand to quit the underlying transgression. Landlords have to first make a written warning to show that they are serious before the saber-rattling of an official notice.
San Francisco may soon join the company of forgiving cities like Oakland and Berkeley by giving more latitude to tenants who are not paying rent or wreaking havoc in and around a rental unit.
Under a proposed ordinance designed to modify the Administrative Code, tenants in San Francisco would have a 10-day period to rectify certain conduct unless there is an imminent threat to health and safety.
Among other reasons, tenants in San Francisco could be evicted for the following just causes:
1) Failure to pay rent;
2) Violating a material term of the tenancy;
3) committing or allowing a nuisance that is severe, continuing, or recurring;
3) using or permitting the unit to be used for any illegal purpose;
5) refusal to execute a written extension or renewal of the lease under the same terms as existed previously; and
6) refusal to allow access to the unit as required by state or local law.
Yet San Francisco lawmakers have argued that the Rent Ordinance “does not specify for how long a tenant’s misconduct must continue before it rises to the level of being a just cause.” This ambiguity creates confusion for tenants, it is reasoned by Supervisors, because “some landlords claim that a tenant’s violation instantly creates a just cause to evict even if the tenant just made an innocent mistake or is able to correct the issue.”
The Supervisors go on to say that a longer cure period would “reduce the undue hardship suffered by tenants who face sudden evictions and promote the economy in the use of judicial resources,” but this would not be at the expense of property owners.
Indeed, if you read the language, it is as if the proposed changes to the ordinance would do landlords a favor because after all, it gives more time for the tenant to fix the nuisance.
This grace period has been largely sold as giving financially strapped tenants more time to pay rent. It also affords tenants more time to disturb neighboring tenants, damage the property, use the rental unit for illegal purposes, and otherwise wreak havoc.
One of the architects of the bill and San Francisco’s most prolific authors of tenant protections, Supervisor Dean Preston, limited the debate only to financial hardship.
The broader context here is that California is pretty harsh on this issue of nonpayment of rent… On the fourth day — that’s it. Even if the tenant comes up with the money, they still can be evicted from their home.
If the dominant reason behind the ordinance is to keep distressed renters housed, why not isolate these non-payment of rent cases and require additional warnings be made to only those tenants behind on rent? There is a residual economic impact of COVID. It’s very real.
Yet smashing windows, having unauthorized pets, or using the rental unit as a house of prostitution has nothing to do with the economic fallout of the pandemic.
The current laws on the books make a clear distinction between non-payment of rent debt and other theories for eviction. Let’s keep the status quo.
Implicit in the ordinance: tenants can be evicted for simple mistakes
This defies our experience at Bornstein Law. By the time a nuisance matter reaches our desk, the conduct usually cannot be attributed to a mistake, ignorance, or inattention on part of the tenant. Normally, our clients are at their wits end after a great deal of communication and stress over the rental relationship and look to evict as a last resort.
We have to put a finger on the degree of seriousness and this runs the gamut. There are simple mistakes such as the tenant putting nails or screws in the wall to hang something up or adding draperies in violation of the lease. Perhaps the tenant didn’t clean up after their dog or installed a washer and dryer without permission. Leaving a space heater on unattended creates a fire hazard, as does having excessive clutter. It’s not uncommon for tenants to misplace garbage in violation of the building’s waste protocols. The list can go on and on.
Then we get into more deliberate and malicious acts like unauthorized subletting, threatening the landlord or other residents, installing cameras in common areas, breaking windows, drug dealing, domestic violence, and so forth – we have seen just about every type of depravity and shocking conduct in our practice – it’s left only to your imagination.
When we file eviction actions on behalf of clients for reasons other than non-payment of rent, it is rarely because of a lone mistake but a disturbing, long-standing pattern of behavior or the behavior is so egregious it requires immediate action.
That a tenant would be evicted for an innocent, correctable mistake is not a likely possibility in light of San Francisco’s existing protections and an overwhelmed court system.
Also implicit in the ordinance: Landlords do not already give ample warning to tenants to correct behaviors
Once again, this contradicts our experience. Landlords are in the business of providing housing; they are not in the business of evictions. If for no other reason, rental housing providers are loath to file eviction actions because of the costs of hiring an attorney. It is much cheaper to resolve a dispute without escalating the matter in court.
As for anyone who says landlords are itching to start a lawsuit at the first sign of strain in the rental relationship, it’s often just the extreme opposite. Ironically, we actually tell many clients that they shouldn’t have waited so long to take legal action.
Aside from the costs of hiring an attorney, many landlords and property managers are what we call conflict avoiders – they prefer to kick the can down the road with the hopes that problems resolve themselves on their own. This can be wishful thinking.
At any rate, the notion that rental housing providers are chomping at the bit to file an eviction action without any warnings to the tenant or before engaging in a great deal of communication should be met with a great deal of skepticism.
Part of an evolution in notices
We have seen notices morph over time. What used to be a 3-day notice may have become a 6-day notice because weekends and judicial holidays don’t count. Landlords once required to give a 60-day notice when raising rents more than 10% now have to give 90 days’ notice of the rent hike. Tenants were afforded more time when the landlord endeavored to end month-to-month tenancies. The pandemic introduced new 15-day notices for non-payment of rent, only to revert back to 3-day notices for post-COVID debt. We can go on.
Given the number and complexity of notices landlords are tasked with giving, there are hundreds of improper notices circulating around out there. It is always advisable to consult an attorney to sort out any past notices and ensure that new notices are compliant in what has been a very fluid regulatory regime.
The East Bay overtaking San Francisco’s title as the undisputed bastion of tenant protections
The cypress trees do not grow in each other’s shadows.
Years ago, we said that as proud East Bay residents, we were thrilled to witness the phenomenal growth of Oakland and see the city get the respect it deserved as a powerhouse in its own right. In the same breath, we expressed concerns that the East Bay was trending in the wrong direction by modeling tenant protections after those of San Francisco. These draconian rent control policies would only stand to stifle the growth and progress of the East Bay, we submitted.
This relationship has now turned on its head. Whereas San Francisco once imported tenant protections to the East Bay, Alameda County is the home of the strictest eviction moratorium anywhere and has its own unique tenant protections. Now, it is San Francisco borrowing from the playbook of the East Bay.