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N Cal Atty
N Cal Atty, Attorney
Category: Landlord-Tenant
Satisfied Customers: 9296
Experience:  I've represented both landlords and tenants.
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The property is in San Francisco. It is rent controlled. The

Customer Question

The property is in San Francisco. It is rent controlled.
The property have 2 units, one small 2 bedroom in-law and the main unit of the house where landlord occupying now. Landlord does not own any other property. Landlord has been occupying their unit since the house was bought (15 years) and the tenant (1 person) has been renting the in-law unit for 5 years.Questions:- If landlord evicting the tenant for the reason of Owner-Move-In to the in-law unit so the landlord can rent out their current unit (at market rate), is that legal? Will the judge or jury consider that as bad faith?-If the reason for the OMI is for the landlord to occupy both unit , is that legal? Will the judge or jury consider that as bad faith?- If the landlord is successful with the OMI eviction, will the landlord able to do another OMI eviction (being disabled is out of the question) in the same property?Thank you
Submitted: 9 months ago.
Category: Landlord-Tenant
Expert:  N Cal Atty replied 9 months ago.

Thank you for your question.

This is a somewhat complicated issue.

I need to ask your age and whether or niot you are disabled.

Did the owner use the Ellis Act to evict a tenant in the unit the owner now occupies?

Have you been served with an eviction notice?

Customer: replied 9 months ago.
Age is 29 and not disabled but diagnosed with anxiety.The owner never use ellis act before.I have been served with 60 day notice.Thank you.
Expert:  N Cal Atty replied 9 months ago.

Did the owner file a Notice of Intent To Withdraw Residential Units from the Rental Market with the Rent Board? If so, when?

Did the owner tender 1/2 of the relocation payment with the eviction notice?

Customer: replied 9 months ago.
I dont know the answer to the first question.The landlord gave me 1/2 reloc payment in the certified mail notice.
Expert:  N Cal Atty replied 9 months ago.

Please check with the rent board to see if the notice was filed.

Phone:(###) ###-####/p>


Have you cashed the check yet?

Expert:  N Cal Atty replied 9 months ago.

Please tell me exactly what the eviction notice said.

What was the amount stated on the relocation check?

Customer: replied 9 months ago.
The eviction notice said basically landlord want to make my unit as their principal residence. No mention of what they intend to do with their current unit. The amount is the half of what im supposed to get for relocation at this time. There is no error in the notice it seems. It was made by their eviction lawyer. I haven't cashed the check yet.Will check with the rent board tomorrow if the notice has been filed.
Expert:  N Cal Atty replied 9 months ago.

Thank you for your quick reply.

Please let me know what the rent board tells you. You should probably just hold the check uncashed until we can determine if this is a legal eviction or not. When you check with the rent board you can also ask if anything else has been filed by the landlord within the last year.

There are differences between an OMI eviction and taking a property off the rental market, and the rent board should know which one the landlord is attempting.

Customer: replied 9 months ago.
The notice clearly say it is an OMI eviction, not Ellis Act. It doesnt say if the landlord taking the property off the market.
Expert:  N Cal Atty replied 9 months ago.

The landlord was still required to file a copy with the rent board, see

http://sfrb.org/topic-no-202-general-eviction-notice-requirements

https://www.sftu.org/omi/ advises: "Tenants who receive an OMI eviction notice should bring it into the Tenants Union counseling clinic for review."

I'm still working on researching whether it is legal for an owner to do an OMI eviction when she already lives in the other half of a duplex.

Customer: replied 9 months ago.
I will check with the rent board ASAP. The property is not duplex btw, its a house with a much smaller (most likely illegal) in law unit inside.
Expert:  N Cal Atty replied 9 months ago.

Do the units have separate entrances?

Customer: replied 9 months ago.
There are 2 entrances + garage (can access my unit and the main unit).
-Street level entrance to access my unit and the main unit (after stairs)
-Elevated entrance that access the main entrance of the main house.No separate meter and there is central heating in my unit but there is no thermostat inside the unit.
Expert:  N Cal Atty replied 9 months ago.

Did you hear from the rent board? Is there a certificate of occupancy for your unit?

Customer: replied 9 months ago.
I just went to sfrb and found out they filed omi eviction, not notice to vacate. The sfrb cannot tell me if there is a certificate of occupancy. I believe the unit is illegal however.
Expert:  N Cal Atty replied 9 months ago.

Certificates of occupancy are available at the Departmenr of Building Inspection. You can request a copy using the form linked from

http://sfdbi.org/record-request-form

If there is no certificate of occupancy you may be entitled to a large refund. Can you please check to see if your unit has a certificate of occupancy?

Customer: replied 9 months ago.
There is certificate of final completion and occupancy, does it mean the unit is legal?
Expert:  N Cal Atty replied 9 months ago.

Is there a separate certificate oin each unit?

Customer: replied 9 months ago.
no, there is only 1 certificate for that address. thank you
Expert:  N Cal Atty replied 9 months ago.

Something came up and I have court tomorrow morning early. I can get back to researching your issues after that. If you need an answer faster, please tell me and I will opt out and open the thread to the other Experts. I just do not have the time to work on this tonight.

Customer: replied 9 months ago.
I can wait. Thank you.
Expert:  N Cal Atty replied 9 months ago.

Thank you for your patience.

Expert:  N Cal Atty replied 9 months ago.

Did the owner offer to rent you the unit the owner plans to vacate?

Customer: replied 9 months ago.
No. Its is unknown at this time what they are going to do with the unit they are occupying now.
Also, as of now or the time of notice, the landlord don't have any vacant unit and i think they don't have to offer me their unit if they do vacate it .
Expert:  N Cal Atty replied 9 months ago.

"The owner or relative should move into the unit within three months and intend to occupy the unit as that person's principal residence for at least 36 continuous months. If a comparable unit in the building is vacant or becomes vacant during the period of the notice terminating tenancy, then the notice must be rescinded. A vacant, non-comparable unit owned in San Francisco must be offered to the tenant being evicted."

from

http://sfrb.org/topic-no-204-evictions-based-owner-or-relative-move

You might want to ask the owner what the landlord intends to do with the soon to be vacated unit.

I'm still trying to research whether it is legal for the owner to do this. Have you made any complaints to the owner about habitability in the last 6 months?

Customer: replied 9 months ago.
The owner and landlord are the same. It looks like they have been advised not to communicate with me by their lawyer. I dont think i can ask them.Also, it is not retaliatory eviction.
Expert:  N Cal Atty replied 9 months ago.

I had to ask. I will keep researching this after court lets out tomorrow.

Expert:  N Cal Atty replied 9 months ago.

It is not illegal per se for the owner to do this as long as it is being done in good faith. You can confirm this with an SF Rent Board Counselor at(###) ###-#### You may want to have a local attorney review the notice and see if there is any way to challenge it. You can get a free consultation from some of the local attorneys listed here.

I hope this information is helpful.

Customer: replied 9 months ago.
Its legal to rent out the landlord current unit?How about landlord claiming 2 units as their principal residences?Thank you.
Expert:  N Cal Atty replied 9 months ago.

The landlord can have only one pricipal residence and if he wants to use the entire property, he would have to file an Ellis Act petition and not an OMI petition. Once the owner moves into your unit he or she can rent out the other unit.

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