Bornstein & Bornstein legal team: Kathryn Q., Daniel B., Jonthan B., Daniel C. (l-r)
by Daniel Bornstein, Attorney at Law, SPOSFI Business Member
Relative move-in tenancy terminations
While many property owners are familiar with the established guidelines for owner move-in (OMI) tenancy terminations, most have limited knowledge of the rules regulating relative move-ins (RMI) pursuant to the SF Rent Ordinance. Following is an overview of the rules to ensure that you are informed of the opportunities and responsibilities inherent in this type of no-fault eviction.
If you own a San Francisco property with a Certificate of Occupancy issued after June 13, 1979, your property is not subject to the SF Rent Ordinance, so you may terminate the tenancy without just cause. Accordingly, provided the tenant is on a month-to-month tenancy, you may simply prepare and serve a 60-day notice of termination of tenancy.
The following discussion is relevant for the vast majority of owners who own San Francisco properties with Certificates of Occupancy issued prior to June 13, 1979.
“An owner who seeks to effectuate a RMI tenancy termination must ultimately prove that the qualifying relative seeks to occupy the unit in good faith, honest intent, without ulterior motive for 36 continuous months.”
Who qualifies as a “relative?”
In order to effectuate a RMI tenancy termination, the relative must be a child, parent, grandparent, grandchild, sibling, spouse, or a spouse of such a relative. “Spouse” includes domestic partners. Thus, uncles, aunts, nieces, and nephews are not qualifying relatives.
One of the fundamental requirements to effectuate a RMI is that the owner have at least a 25% ownership interest in the subject property. Without such ownership interest, no RMI (or even OMI) is permitted.
What must your prove?
An owner who seeks to effectuate a RMI tenancy termination must ultimately prove that the qualifying relative seeks to occupy the unit in good faith, honest intent, without ulterior motive for 36 continuous months. Thus, if you recently had a dispute with a tenant and thereafter attempt a RMI, a tenant attorney could reasonably argue that the termination was not in good faith but merely in response to or in retaliation for the prior dispute. If you are planning a RMI, I suggest you refrain from engaging in any unnecessary dispute with the tenant.
Owner occupancy requirement
Another fundamental requirement to commence a RMI eviction is that the owner reside in a unit in the building or be simultaneously seeking possession of another unit in the building. For example, in a triplex the owner must reside in one unit and the qualified relative must be seeking possession of another unit. Or, alternatively, for a brother and sister who just purchased a duplex, the brother (on title as owner), simultaneously seeks occupancy of the top unit for an OMI termination and the sister (not on title) seeks to occupy the bottom unit as a qualified relative of her brother (RMI).
No limit to number of RMIs allowed
An owner may effectuate as many RMI terminations as he/she has relatives who qualify. For example, an owner who currently lives in one unit of a fourplex (three units occupied by tenants), may have his brother, sister, and son effectuate tenancy terminations to reside in the other three units.
A RMI tenancy termination cannot occur in a single-family home or condominium unit. For example, you may not have your son effectuate a RMI eviction on a single family home if you as the father own it. If you seek to have a family member occupy your single-family home or condo, you will have to provide him/her, at minimum, a 25% ownership interest. Once the deed is recorded, he/she is then qualified to effectuate an OMI tenancy termination.
Relocation payment requirements
Tenant relocation payment requirements follow the same guidelines as other no-fault evictions. Through February 28, 2015, the statutory payment requirements are $5,261 for each authorized occupant who has resided in the unit 12 months or more, maxing out at a total payment of $15,783. However, if there is a disabled, elderly tenant in occupancy, or the household has minor child(ren), there are additional obligations of $3,508. These amounts will change on March 1, 2015, and each successive year thereafter.
Similarly, the same prohibition regarding terminating a protected tenant for an OMI applies to a RMI. While there are some limited exceptions, the general rule is that a qualified relative cannot displace a tenant who is “protected,” that is, has resided in the unit ten years or more and is disabled, has resided in the unit ten years or more and is 60 years or older, or has resided in the unit five years or more and is catastrophically ill. However, if your qualified relative is over 60 and/or disabled, you may satisfy the exception and potentially terminate the protected tenancy. You should, of course, discuss this matter with an attorney prior to making any ultimate decision to proceed. In fact, given the possibility for legal missteps, it is always prudent to consult with an attorney when contemplating any eviction.
For more information please contact daniel@bornsteinandbornstein dot com
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