The San Francisco Rent Ordinance authorizes an owner to move into a tenant-occupied rental unit and terminate the tenancy of all occupants in possession. This allowance, however does not come without its own set rules and restrictions. One major obstacle that an owner looking to recover possession may face are the rules regarding “comparable” and “non-comparable” units located in the building containing the unit which the owner seeks to recover pursuant to an owner move-in eviction.
37.9(a)(8)(iv) of the San Francisco Rent Ordinance states that a landlord may not recover possession pursuant to either an owner move-in eviction or a relative move-in eviction if a “comparable unit” owned by the landlord is already vacant and is available, or if such a unit becomes vacant and available before the recovery of possession of the unit. If a comparable unit does become vacant and available before the recovery of possession, a landlord must rescind the notice to vacate and dismiss any action filed to recover possession of the premises. Provided further, if a non-comparable unit becomes available before the recovery of possession, the landlord must offer that unit to the tenant. Two issues emerge – what are comparable units and what are non-comparable units.
An owner cannot evict a tenant to recover possession for themselves if a comparable unit is vacant and available in the same building. The spirit of this rule makes sense. If there is an empty unit that is similar to the one being occupied by a tenant, the owner should move into the vacant unit while preserving the tenancy of the other occupied unit. This rule applies not only when an owner move-in eviction notice is served, but also throughout the time until possession is recovered. For example, a San Francisco owner move-in termination notice is a 60-day notice. If a comparable unit became available on the 45th day after service of the termination notice, the owner would be obligated to rescind the notice and pursue occupancy of the vacant and available unit for themselves.
In contrast, if a non-comparable unit were available or became available prior to recovery, an owner would not be required to rescind the notice and move into that non-comparable unit. The spirit of this rule also makes sense. If a unit that was not comparable to the unit the owner wanted, the law will not force them to move into that unit simply because it is available. Instead, the owner’s obligation in this scenario would be only to offer that non-comparable unit to the tenant being displaced without typical rental amount constraints. Furthermore, a non-comparable unit could also be located at a different location in San Francisco, or even outside of the City.
The issue becomes – what’s the difference between a comparable and non-comparable unit? There is no bright line answer although most scenarios are easier to conclude than others. Number of bedrooms, bathrooms, and square footage are generally easy cases. More complicated issues can present where units are seemingly comparable, but an owner’s particular needs dilutes similarities. For someone who has challenges with stairs, an upper unit is not comparable to a lower unit. The determination of comparability is subjective and objective. Condos, TICs, and single-family homes generally avoid these issues – but not always. Diligence at the onset can avoid many of the potential pitfalls that comparable and non-comparable unit issues present. Having confidence in comparability and non-comparability is essential tool an owner must have in making an effective decision prior to any owner move-in termination notice being served.
The rules and regulations regarding comparable and non-comparable units for San Francisco owner move-in and relative move-in evictions are complex and always subject to challenge by both property owners and tenants. If you are curious about learning more about performing a San Francisco owner move-in eviction or relative move-in eviction for a property you own or are looking to purchase, you should speak to an experienced San Francisco Real Estate attorney who represents owners and landlords in San Francisco.
San Francisco Owner Move-In Eviction and Relative Move-In Eviction information provided by San Francisco Real Estate attorney Mark Chernev.
Mark B. Chernev, Zacks, Freedman & Patterson, PC, 235 Montgomery Street, Suite 400, San Francisco, CA 94115 : telephone 415 – 956 – 8100