How many days does it take to count to three? It's not ten for non-payment of rent cases in San Francisco
Our industry partners successfully argued in court that San Francisco’s ordinance requiring a 10-day warning period for non-payment of rent violates state law. Yet challenges remain.
In February, the San Francisco Board of Supervisors unanimously voted to enact Ordinance No. 18-22, which became effective on March 14. Essentially, it elongated the eviction process by requiring landlords to give tenants a 10-day warning period to pay outstanding rent or remedy any violations of the lease. Only after this 10-day "cooling off" period could the landlord serve a standard 3-day notice.
The chief architect of the ordinance was none other than Dean Preston and while the Supervisor made political hay out of the measure, our landlording community expressed deep concerns that would be aired out in court. The San Francisco Apartment Association and Small Property Owners of San Francisco Institute filed a lawsuit against the city and county.
The Plaintiffs' arguments were persuasive enough for Judge Haynes to issue an Order temporarily "staying" the 10-day Warning Notice Requirement pending the final resolution of the case.
We advised our clients to ignore the ordinance for the time being with a cautionary note that this matter was not done. The full merits of the case would be decided at a later date, and that was July 22.
We can now jubilantly report to landlords in San Francisco that a partial victory has been won, with a judge making the final decision that "Ordinance 18-22 is both expressly and impliedly preempted by State Law to the extent it changes the required notice period before a landlord may file an unlawful detainer for non-payment of rent only."
“It is with pleasure and much relief that we tell you that we have secured an important victory in the courts concerning our interactions with non-paying renters. On Friday, July 22, Judge Haines, of the San Francisco Superior Court, ruled that Ordinance 18-22, which requires a 10-day “Notice to Cure” before an owner can issue a 3-Day Notice to Pay Rent or Quit, is not valid because State law prevails in the timing of notices.
We filed our suit knowing that adding an additional 10-day period not only burdens owners financially but, in the case of some small owners and resident managers of smaller buildings, created a danger from a vengeful renter… This court victory, while not everything we asked for, is an important push-back from our groups.”
~ Noni Richen, SPOSF/SPOSFI President
“We are grateful to the San Francisco Superior Court and Judge Haines for striking down this troubling requirement… It’s is a blatant overreach on the City’s part and would have created another obstacle for landlords trying to deal with non-paying tenants.“
~ Janan New, SFAA’s Executive Director
A lot to untangle
During the height of the pandemic, amid many government edicts issued and with sweeping emergency powers given to local governments, we were in unchartered territory. Bornstein Law has said that unlike most other areas of law that has years, if not decades of court precedents to provide guidance, there was little tutelage to rely on.
It would ultimately be up to the courts to sort many issues out, and that is exactly what is happening.
The case at hand is a seminal one that largely re-established the way we manage landlord-tenant relationships as the pandemic becomes the endemic. It is well settled that the payment of rent is sacrosanct in a rental relationship and we applaud the extra validation that municipalities cannot set a new, longer timeline for the demand of rent payments prescribed by state law.
We don't want to get bogged down in the many legal issues the court had to address. The cerebral types can read the full decision here →
While there is cause to celebrate, it’s not a total win and we cannot rest on our laurels.
As for nuisance conduct and other breaches of the lease that do not present a threat to public health and safety, we still have to properly prepare and serve a 10-day warning to the tenant(s) putting them on notice that if the underlying behavior is not fixed, it can lead to them being ousted.
We have dubbed these admonishments to problematic tenants "pre-notice notices."
Think of playing loud music at night. Unauthorized subletting. Violating a no-pet policy, or not fixing a broken window. All manner of other breaches of the lease, unrelated to non-payment of rent. We still have to contend with the 10-day warning period, with a glaring exception.
Whenever crime and violence rear their ugly head, or if there is another threat to health and safety, our office has been aggressive in serving a 3-day notice to quit. When tenants engage in certain behavior, they forfeit their right to live in that community. This is a subject we took on in an earlier webinar.
Watch our webinar on responding to egregious acts →
Are there bad notices being used?
Landlords and property managers using stale, templated, or incorrect notices have always been a recurring theme in our office in ordinary times, but enter the residue of the pandemic. With rents becoming due during different time frames, each bracket of time with its own prescribed rules, it is imperative that notices be prepared or reviewed with proper counsel and a trained eye.
With the state's final iteration of eviction protections for non-payment of rent set to expire on June 30, San Franciso was prophetic in extending its own local protections past this date. For any tenants who have accrued rent debt during April, May, and/or June, however, there is a unique opportunity for San Franciscan landlords because this falls outside of the protected period. We can isolate past-due rent debt within this window of time and pursue an unlawful detainer.
Tenant buyout agreements remain a viable option
Throughout the long, dark winter of COVID, we have been strong proponents of tenant surrender of possession agreements whenever there are few other convenient or legal grounds to evict. We want our community to understand that irrespective of ordinances that dictate what a landlord can and cannot do, there is nothing prohibiting a “meeting of the minds” whereby the tenant vacates the property voluntarily.
We are unaware of any other firm in the Bay Area that has effectuated so many of these voluntary move-outs than Bornstein Law. Rather than going down the road of lengthy and costly litigation, a tenant buyout agreement may be preferable in order to accomplish the goal of a vacancy.
Parting thoughts
Bornstein Law thanks our industry partners and their counsel for seeing this lawsuit to the finish line. While we share the disappointment that the 10-day warning period remains in place for nuisances and other material breaches of the lease, we will put this is the win column. A rarity in San Francisco.
The news comes with little solace to our comrades in Alameda County, where landlords cannot evict for non-payment of rent except for the most egregious of circumstances. Our office has had many difficult, heart-to-heart conversations with landlords there, and we can only empathize and say that help may be on the way as litigation plays out. Some developments on that front will be coming in September.
As for the 10-day warning letter for nuisances and other material breaches of the lease, the San Francisco Rent Board has put together a template here, but these documents have increasingly been put under scrutiny, and rest assured, whenever landlords attempt to prepare on their own, many “Do it Yourself” authors make mistakes. The best practice is to consult an attorney when filing a notice because there are very clever tenants’ attorneys who can spot flaws. If there are any errors, it can delay an eviction action and lead to more stress and lost income.
Our sales pitch: Get the notices right the first time. Contact our office.