How many days does it take to count to three? Not ten, says an appellate court. 

San Francisco tenants not complying with their lease terms do not need to be given extra time to fix their behavior, according to California’s First Appellate District of Appeal.

Perhaps San Franciscans can recall waking up to orange skies. We do. It was a bizarre experience. It’s just as bizarre that in an age when laws and political rhetoric fall squarely on tenants' side, we finally have some good news to report to housing providers.

Although there is a deluge of landlording regulations, be grateful that we have an independent judiciary that can review them and in this case, shoot down unreasonable ones that fly in the face of state law.

In 2022, San Francisco Supervisor and the most prolific author of tenant protections, Dean Preston, floated the idea of a “cooling off period” for evictions since we were still dealing with the residue of COVID.

Rather than serving a three-day notice to demand rent or fix other lease violations, housing providers were to provide a 10-day warning letter before going through the traditional eviction process beginning with a 3-day notice.

 

 

The courts said whoa, hold on. Not so fast. There is a statewide procedure to follow and you can’t tamper with it. 

There is an ageless tug-of-war between state and local governments regarding what kind of power they assert and whether state law preempts local law. In a city predominately comprised of renters, San Franciso politicians have always pushed that envelope. Often, they have lost.

Not so beholden by political whims, the state legislature carved out carefully choreographed steps of the eviction process. We’ve depicted them here.

Click to download »

Initially, the courts chimed in on one of the foremost obligations of tenants, which is to pay rent. A judge ruled that a 10-day warning period flew in the face of state law that clearly states that if a properly served 3-day notice to pay rent or quit is served and the tenant does not pay the rent, the landlord has perfected their right to commence an unlawful detainer (eviction) action.

But what about other lease violations? Can tenants buy extra time? 

Most recently, it has been determined that no, tenants should not be given a grace period. What are we talking about? For the answer, we turn to San Francisco’s Ordinance No. 18-22.

  • Violating a material term of the tenancy.

  • Allowing a nuisance that is severe, continuing, or recurring.

  • Using or permitting the unit to be used for any illegal purpose.

  • Refusal to execute a written extension or renewal of the lease under the same terms as existed previously.

  • Refusal to allow the landlord to access the unit as required by state or local law.

Moving forward, San Francisco owners can revert to the traditional means of escorting bad actors out of their rental units with no need to give them extra time to cure the violation.

Parting thoughts and insights

When we serve a 3-day notice to cure or quit, we need to take into account weekends and judicial holidays. These do not count, with one exception.

Note that some acts are not curable; the behavior is so egregious the tenant cannot correct the behavior and get a clean slate. Think violence, firing a gun, arson, drug dealing, prostitution, threats, and the like. When there is an imminent threat to public health and/or safety, we can proceed with an eviction action without haste.

For the cerebral types, you can read the court's reasoning.

Download the decision here →

There's been some speculation about whether Oakland's similar 10-day warning requirement will be challenged in light of this ruling. All we can say is that circumstances are unique in every case and any crusading lawsuits that challenge ordinances require a lot of money and typically take time to go through the courts.


Whenever there is problematic behavior in a rental unit, Bornstein Law can assist in resolving it most inexpensively and expeditiously, taking into account time, risk, and attorneys’ fees.