A candid phone interview with Daniel Bornstein

We talk about the status of the courts, draconian eviction moratoriums in Alameda County, and no-fault evictions in San Francisco.

Also on the table: the calculus of raising rents, recent assaults on the Ellis Act, and how rampant crime is overlapping with landlord-tenant law.

Courts have been dysfunctional with a huge backlog of cases, lack of personnel, trouble impaneling juries, etc. Is there improvement?

The courts are in fact better than it was six months ago but still very, very slow. For instance, in Alameda County, the court has not taken cases they don't deem to be public safety and/or emergencies such as non-payment of rent cases, and they are being continued until July. So we are looking at delay, delay, delay and of course, we are still dealing with the Alameda moratorium.

In San Francisco, I will say things are starting to pick up. Courtrooms are becoming available and just last week I had a trial where a visiting judge was called in to handle the burgeoning caseload and they were able to have that hearing and trial set.

So I would say things are moving better in San Francisco than in Alameda County; however, we certainly are not 100%. I'd say maybe 65%. And still, the use of Zoom settlement conferences, Zoom testifying, and Zoom jury selection is available, but of course, it is a difficult process to get comfortable with. I'd much rather prefer an in-person presence when engaged in litigation or trial work.

Throughout the pandemic, you said that the optics of raising rents are not good. As we return to a state of normalcy, has this calculus changed?

There are many, many clients who are reaching out to me to seek decisions as to raise rents or not. Depending on the jurisdiction, depending upon the facts, I may inform you to proceed with a rent increase or not.

Remember, rent increases above 10% are on 90-days' notice. Rent increases below 10% are on 30-days' notice. Be advised there is a drought emergency in place by the Governor that says that rent increases cannot be in excess of 10%. You need to check back with our office to ascertain whether a rent increase above 10% is permitted in your jurisdiction.


There are nuances in Alameda County?

As I mentioned, Alameda County is an aberration. Los Angeles and Alameda County remain with their own county-related eviction moratoriums. This is really problematic because there is so many nonpayment of rent cases that can't be litigated at this point of time in Alameda despite the state law.

The only cases that are proceeding are public health/safety issues. They generally involve drug dealing, arson, any sort of behavior that is a threat to public safety, and that is something that will be actively litigated in an unlawful detainer landlord-tenant dispute but everything else plays second fiddle with delays and you won't be able to file them unless they were filed pre-pandemic.

I will say that the only atypical cases that are proceeding on a regular basis are forcible detainers where you don't have a tenant in the unit but a family member who isn't a tenant but is lingering around after they were asked to leave but they don't leave. They've over warmed their welcome.

It's the same thing as if we had a care provider who is not a tenant and is asked to leave and refuses to leave, a beneficiary in the unit that is asked to leave, refused to leave, and in that case, there is no tenancy so those type of disputes are proceeding because they are not subject to moratoriums - no tenancy exists.

How about owner move-in evictions in San Francisco? There seems to be some ambiguity there.

There is a great deal of confusion and challenges in San Francisco because we have an eviction moratorium that is subject to interpretation. We do, however, have a housing court judge that specifically stated that San Francisco's ban is preempted by state law.

So, despite what is on the books, we are still proceeding with terminations of tenancies in owner move-in evictions when the owner wants to move in the premises, relative move-in evictions where the relative desires to move into the premises, but doing so very gingerly. There is a tension between what is on the books and what housing judges are proceeding with.

Our strong advice for anyone contemplating an eviction action in San Francisco: contact an attorney first to evaluate whether the eviction will be easily completed or it will be subject to inertia and procedural hiccups.

There have been attacks on the Ellis Act, and one measure just failed. In real life, how common is Ellis Acting a property? Is this just fear-mongering?

Ellis Acts are very atypical, they typically arise when the owner doesn't have many options and the status quo is not acceptable to the owner. People should tread very carefully as to whether they should pursue an Ellis Act or not.

I'm a strong believer that before you even consider an Ellis Act eviction you first attempt to consider a voluntary move-out of the tenants, which is what we call a surrender of possession agreement or "cash for keys" agreement, though it's not just cash for keys because you are removing legal residue - the tenant agrees to release all claims that arise from the tenancy.

I'm happy to counsel people as to the approach to take and the protocols necessary to follow based upon the different jurisdictions you're in.

You are not a criminal attorney. But with rampant crime in San Francisco, is there an overlap between criminal law and landlord-tenant law?

We are not immune to rising crime and the reality is during the COVID pandemic, I've been dealing with lots and lots of tenants engaging in criminal activity within the property or to another neighboring tenant.

Last week, I had a trial involving violence within the unit and this type of conduct is not acceptable. Even if the city's prosecutor's office does not prosecute misconduct that rises to the level of a crime, an individual owner can pursue the removal of a tenant they believe have engaged in criminal conduct.

Remember, the criminal standard is "beyond a reasonable doubt." The civil standard is based on "the preponderance of the evidence," so it's a lower standard.

What you need to recognize, most importantly, is that you do not need to tolerate criminal activity within your unit, within your building, and contact our offices so that we can help you remove anyone that engages in violent behavior, theft-related behavior, vandalism, and any other criminal conduct.