Considering the optics of a landlord’s actions

After a San Francisco attorney says a landlord has the right to only allow “MAGA voters and Israel supporters” to attend an open house, it raises the question: Should landlords do something just because they can?

Several laws protect tenants against discrimination based on gender, familial status, race, sexual orientation, source of income, and other characteristics. Yet according to an attorney who represents tenants, political orientation is not a protected class.

We know Joseph Tobener well professionally, so we were intrigued to come across this story on an apartment listing informing prospective tenants that they need not apply unless they voted MAGA and were supporters of Israel.

Tobener tells Fox News that the wording of the Zillow listing was such that “they are all political orientation, which isn’t a protected class and not a violation of the Fair Employment and Housing Act in California.” He goes on to say, “I think what rubs people the wrong way is that we have a new housing shortage in San Francisco because of the AI boom.”

Tobener also expresses concerns over the protected First Amendment rights of landlords. What says us?

“You may have the right to do something, but that doesn’t make it smart, prudent, or ethical. We should not make it a litmus test that prospective tenants share your own values/political beliefs. Instead, the assessment should be based on creditworthiness, prior landlord references, professional references, and personal references.  We need to help reduce the tension in this community and embrace diversity.”

~ Daniel Bornstein

This inartful apartment listing, along with the expletives the owner uttered to reporters when approached, is an example of what we call “bad optics.” Some practices might be legal (or at least defensible), but could be a public relations blunder, fuel tenant distrust, or make a landlord look exploitative.

Let’s review other examples of landlord conduct that can potentially strike of bad optics.

Towing vehicles without warnings

Real estate is something we can’t make more of. With parking spots such a scarce commodity in the Bay Area, owners may be tempted to tow away unrecognized or improperly parked vehicles. In an earlier article, we said that while physically removing a vehicle may solve an immediate problem at hand, it is likely to invite acrimony later on.

Barring the most egregious of cases or repeat offenses, housing providers may find it better to kindly remind tenants of the building’s parking policies rather than infuriating them by hauling off their vehicle. Reports of predatory and unauthorized towing by opportunistic towing companies do not make the optics any better.

Exorbitant rent hikes

At Bornstein Law, we have always been proponents of raising rents when housing providers are legally permitted to do so, and the rent increase doesn’t drive away an excellent tenant who is worth his or her weight in gold.

For landlords exempt from state and local rent control, however, astronomical rent increases may raise eyebrows. Will the precipitous rent hike come across as a “back-end” eviction, meaning the landlord tries to terminate a tenancy by imposing a rent increase that the tenant cannot possibly afford? If so, these are bad optics, especially combined with other landlord misconduct. When raising rents, housing providers should not come across as retaliatory. Take, for instance, a tenant complains to a building inspector about an uninhabitable condition and afterward, their rent is raised excessively.

Owner move-in and relative move-in evictions (OMIs/RMIs) when the motive is in question

When a property owner in a local rent-controlled jurisdiction endeavors to recover possession for their own use or that of a close relative, these types of transitions must be done in “good faith.” What this means is that the owner cannot have an ulterior motive and genuinely intends to use the rental unit as their principal place of residence for a time certain.

Generally speaking, our office can move in first-time homeowners with relative ease because they just took out a mortgage, they plan on staying there for a long time, and there’s no history of acrimony with the current tenant.

Where we encounter difficulty is when the owner has had a rocky relationship with the tenant, and the OMI/RMI can look retaliatory. For example, a savvy investor who owns 30 properties throughout San Francisco and has just been taken to the Rent Board by a tenant who petitions the board for a rent decrease because of a reduction in service. After this feud, the owner signals their intention to move into the property.

The owner lives in the Saint Francis neighborhood but wants to move into a one-bedroom apartment in the Mission District? This is where we will have a hard time making the case that the owner is acting in good faith.

Other examples abound

When there is an extra family member in a rental unit in violation of occupancy limits and the landlord attempts to evict on this theory, the optics to a judge or jury may not be good because the landlord is attempting to displace a family. Or, let’s say there is a 94-year-old woman who has lived in her apartment for 40 years, and the landlord attempts to transition her out through the Ellis Act. This has been known to spark outrage from the community and militant tenant activists.

We recall that during the height of COVID, a prominent attorney representing landlords found a clever way to evict tenants by raising the security deposit, and when tenants were unable to pay the increased deposit, the attorney would file an eviction action based on the nonpayment. This worked for a little while, but the optics were terrible and drew so much attention, unamused lawmakers put an end to this practice.

In a parting thought, bad optics often stem from looking greedy, cruel, or sneaky. Landlords who position themselves as providing a valuable service, not just a rent collector, will assuredly be successful.