Owner Move-in Evictions (San Francisco)

September 1, 2016

Owners are permitted to evict in order to move into their property.  This is known as an owner move in (OMI) eviction.
 

A landlord can recover possession of a unit for a grandparent, grandchild, parent, brother or sister, or the landlord's spouse or the spouses of such relations, as their principal residence for at least 36 continuous months, in the same building where the landlord resides or in a building where the landlord is simultaneously seeking possession for owner move-in purposes. The term spouse includes domestic partners.

Any OMI eviction must be done in good faith, with honest intent and without ulterior reason.  In other words, the dominant motive for asking the tenant to leave is so that the owner, or owner’s relative, can move in.

An owner must have at least a 25% interest in the property before starting an OMI eviction. 

For owners who took title before February 21, 1991, a 10% interest of record will suffice.  And in all cases, two individuals registered as domestic partners can c

 

ombine their ownership interests to meet the required percentage.

If a comparable unit is already vacant and available, the landlord cannot evict a tenant.  If a comparable unit becomes vacant and available before an eviction is completed, the landlord must rescind the notice.  If a non-comparable unit becomes available, the landlord must offer the unit to the tenant at a rent set by the landlord.  Timing the service of a notice to avoid moving into a comparable unit or offering a tenant a replacement unit is bad faith. 

It is also bad faith if the landlord or relative for whom the tenant was evicted does not move into the unit within 3 months after the tenant vacates and occupy the unit as that person's principal residence for a minimum of 36 continuous months.

Once a landlord recovers possession of a unit by evicting a tenant for OMI purposes, that unit becomes the OMI unit and no other current or future owner may evict a tenant from any other unit for OMI purposes.  In other words, only one OMI unit per building.  However, a landlord may petition the Rent Board to occupy another unit if a disability or other similar hardship makes another unit desirable.

If a landlord who evicted a tenant for OMI purposes moves out and re-rents within 36 months, the landlord may only charge a rent not greater than that which would have been the rent had the original tenant not been evicted.

In an effort to help tenants determine if a landlord should be moving into some other property instead, the law requires landlords to disclose quite a bit of information about other property owned by them and the other owners and the relative for whom the eviction is being pursued.  A description of all residential properties owned, anywhere in the world, must be provided to the tenant and Rent Board.

Along with a proper eviction notice, a landlord must notify the tenant being evicted of their rights under the OMI law and their right to receive relocation costs.  As of March 2014, the required relocation amount is $5261 per tenant with a maximum of $15,783 per unit.  In addition, disabled tenants or tenants 60 years or older, or households with minor children, are entitled to an additional $3508.  These amounts change in March of each year depending on changes in the consumer price index

Protected Classes

 

A controversial provision of the OMI law prohibits the eviction of tenants who are 60 years or older, or disabled, and have resided in their unit for 10 or more years.  Likewise, the eviction of catastrophically ill tenants who have lived in their unit for 5 or more years is prohibited.  However, the enforceability of these laws is questionable and several constitutional attacks on these provisions have been successful.

Where a protected tenant occupies a single family home or a condo unit, a landlord may recover possession.  Likewise, a landlord may recover a unit for a relative over the age of 60 where each unit in the building is occupied by a protected tenant.

During School Year

 

A recent addition to the OMI law is a provision that prohibits evictions during the school year where there is a minor living in the unit and the tenant has resided in the unit for 12 months or more.

Landlords may request a statement from a tenant as to whether they are protected from eviction due to a minor residing at the premises.

The new law doesn't apply when there is only one rental unit in the building owned by the landlord or where the owner who will move into the unit has a child under the age of 18 who will also reside in the unit.

Disclosures to Tenants

 

Before a building may be sold, a seller must disclose to all tenants that:
 

  • tenants cannot be evicted because the property is being sold

  • rents cannot be increased because the property is being sold

  • rental agreements cannot be changed because the property is being sold

  • sellers have a right to show rental units during normal business hours

  • tenants need not sign estoppel certificates unless their lease provides otherwise

  • advice is available at the Rent Board


Thirty days after the close of escrow, a buyer must disclose to all tenants that:
 

  • tenants cannot be evicted because the property is being sold

  • rents cannot be increased because the property is being sold

  • rental agreements cannot be changed because the property is being sold

  • any tenants, sub-tenants or roommates who are lawful occupants will remain so

  • housing services cannot be changed or severed

Tenant Buy Outs

 

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.

 

​© 2016 by Fried & Williams LLP.  All Rights Reserved.  The information contained in this article is general in nature.  For advice on any particular matter, please consult with our attorneys because the facts of your situation may be unique and the law changes from time to time.​

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