Owner Move-In Evictions in Oakland

Since the passage of Measure EE (Oakland's Just Cause for Eviction Ordinance) in November 2002, many landlords, home buyers and Realtors have been curious about the rules of owner occupancy in Oakland. It is possible for owners and buyers to move into houses and apartment units they own. However, there are many complicated restrictions and procedures involved. This article contains most of the details of owner occupancy rights. All code sections refer to Measure EE.

Just Cause to Evict

In general, a landlord may not endeavor to recover possession of a residential rental unit unless one of eleven "just causes" exists. One just cause is for recovery of a unit when the owner of record seeks possession for (1) his or her own use, or (2) use by his or her spouse, domestic partner, child, parent or grandparent.

It is not enough that the owner, or her relative, want to use the rental unit. The owner of record must seek possession in good faith, without ulterior reasons and with honest intent, to recover possession for his or her own use and occupancy, or for the use and occupancy by the owner of record's spouse, domestic partner, child, parent, or grandparent. Sec. 6A(9).

Principal Residence

The owner must intend to use the premises as his or her (or relative's) principal residence. While it is permissible for the owner or relative to have other homes, this will open the door to claims of bad faith and dishonest intent on the part of the owner. It is always preferable to sell other residences or terminate existing tenancies before starting an owner move in eviction.

Ownership of Record

Only owners of record may recover possession for owner move in purposes. Silent partners or beneficiaries under a living or revocable trust aren't eligible to recover possession in order to use the rental unit themselves.

Measure EE defines an owner or record as a natural person, who is an owner of record holding an interest equal to or greater than thirty three percent in the property at the time of giving a notice terminating tenancy and at all times thereafter, until and including the earlier of the tenant's surrender of possession of the premises or the execution of a writ of possession pursuant to the judgment of a court of competent jurisdiction. Excluded from the definition is any lessor, sublessor, or agent of the owner of record."
Sec. 4B.

3 Year Occupancy Required

There is a presumption that Measure EE has been violated where the owner/relative does not occupy the premises for 36 continuous months. 6A(a). However, this presumption can be overcome if there is a good faith reason for the occupancy not lasting the full or continuous 36 months. Owners are sometimes advised to offer the unit back to the evicted tenant if due to contingent events, the owner or relative can no longer live in the unit.

Only One OMI Every 3 Years

Measure EE only permits one owner move in (OMI) eviction every 3 years. 6A(9)(b). Thus, if an owner needs a second unit for another owner or family member, he or she must wait 3 years. It should be noted that a similar restriction in the San Francisco Rent Ordinance was struck down by a judge of the San Francisco Superior Court. A similar challenge is being made to the Oakland law.

Similar Vacant Units

Sometimes, a similar vacant unit becomes available before or during the eviction process. An owner's decision not to occupy a similar vacant unit creates a rebuttable presumption of bad faith. This requirement means vacant units anywhere that are owned by the owner doing the evicting.

There is no absolute requirement for the owner to take the vacant unit. Nor is the landlord required to offer the vacant unit to the tenant. However, offering the vacant unit to the tenant being evicted, at the same rental rate, is a gesture of good faith. At trial, the owner must show that their conduct in not moving into the vacant unit, or not offering the unit to the tenant, was reasonable.

Owner Must Take Occupancy Within 3 Months

The Ordinance requires the owner to take occupancy within 90 days of the tenant vacating. However, the Ordinance does not require a relative for whom an owner does an eviction, to take occupancy within 90 days. 6A(9)(c).

The purpose of this section is to make sure the owner really moves in. Where the owner intends to do substantial repairs or improvements, they may have to do work while residing in the unit.

Protected Groups May Not Be Evicted For OMI Purposes

Certain classes of persons may not be evicted for OMI purposes. 6A(9)(e). An owner may not evict if he or she has or receives notice that a tenant in the unit has resided in the unit five or more years and is either (1) 60 or more years of age, (2) disabled, or (3) catastrophically ill.

Disability is determined by the standards set forth in Fair Employment and Housing Act of the State of California. The standard is quite broad. Catastrophic illness is defined as a person who is disabled and who suffers from a life threatening illness as certified by his doctor.

The Class protections do not apply if the landlord's qualified relative fits one of the above 3 classes and where all other units in the property are occupied by protected tenants. 6A(9)(f).

Any tenant claiming protected status must submit a statement to the landlord with supporting evidence. The landlord may challenge the claim at the Rent Board and not in Court. 6A(9)(g). At the Rent Board, the tenant will have the burden of proving protected status. A landlord cannot be sued for challenging a tenant claim. Many attorneys recommend filing the challenge at the same time as filing the eviction lawsuit.

Only One OMI per Building

Once an owner completes an owner/relative move in eviction, no other current owners/relatives may do a similar eviction and no other unit may become the subject of an OMI eviction without proving disability or hardship to the Rent Board or Court. 6A(9)(h).

Notice Requirements

According to 6A(9)(I), all owner move in eviction notices are 60 day notices (minimum) and must state:

  • All property owned by the intended future occupants. However, property is defined in Measure EE as real property located in Oakland. See 4G.
  • Any homeowner's tax exemption claimed by the intended occupants.
  • A statement reciting Section 6C of Measure EE verbatim.

In addition, there are other technical requirements that must be met by the notice. Property owners should never attempt to prepare and serve their own eviction notice. Please consult with an attorney familiar with these types of evictions rather than risking the lose of time and liability for wrongful eviction.

Tenant Buy Outs

But the biggest reason for the decline in OMI evictions is because tenant buyouts have proliferated. After the Rent Ordinance passed in 1979, landlords were sued for informally asking tenants to leave and for attempting to buy out a tenancy. This all changed when, in the case of Baba v. CCSF Board of Supervisors, it was held that landlords had a right of free speech. Since then, landlords have been talking "buy out".

Going through a lengthy and uncertain eviction process can be avoided if a tenant is willing to accept cash for keys. The process starts with negotiations about relocation compensation and a move out date. The process ends with a carefully drafted move out agreement. Before starting the buyout process, it is prudent to consult with an attorney.

Concluding Remarks

Measure EE made it difficult for property owners to use and occupy their own property. But not impossible. Since it would be unconstitutional to exclude property owners from living in their own property, Measure EE merely places obstacles and penalties in the way of owner occupancy. Consult with an eviction attorney that has done these types of evictions to see if you qualify for owner occupancy of your property.

Realtors should direct their clients to a knowledgeable attorney before any attempt is made to evict a tenant or before an offer is made to purchase property that is tenant occupied. Sellers are subject to liability (as well as their agents if assistance is given to the owner) for any wrongful endeavors to recover possession. And many buyers are disappointed to first learn about the restrictions on owner move in evictions after their offer has been accepted.

The attorneys at Fried & Williams LLP have successfully placed several hundred owners in their new homes despite just cause eviction laws. The firm is available to advise landlords, home buyers and Realtors on the subtleties of these laws. Whether you need help buying out a tenant, or assistance with an owner move in eviction Fried & Williams can advise you accordingly.

 

Attorney

Clifford E. Fried

Date

July 2010

Practice Area

Landlord / Tenant