Appellate Court Reaffirms Ellis Act Protections

by on July 30, 2019

First Tenant to Win Ellis Act Jury Trial

The first tenant to beat an Ellis Act eviction at trial is now able to rest easy knowing that the jury verdict and subsequent court judgment will remain intact.  The Ellis Act is a law that allows a landlord to withdraw rental properties from the residential rental market, provided that the landlord complies with the provisions of the Ellis Act and the implementing rent ordinance. While the law is frequently abused by owners to evict long-term tenants with rent control, tenants have had an uphill battle in challenging this type of eviction, especially at trial.

In November 2017, a San Francisco jury found that the landlords changed the terms of Betty Rose Allen’s tenancy while they were pursuing an Ellis Act eviction, which is expressly prohibited by the Ellis Act. Because of this violation, the jury awarded Betty Allen Rose continued possession of her long-term home. The jury verdict was upheld by the Hon. Richard B. Ulmer Jr. after post-trial motions in December 2017.  The landlords appealed, claiming that a rental information questionnaire that Allen signed prohibited her from introducing evidence that her tenancy included a garage (which was taken away by the landlords), and that a change of terms of tenancy is not a defense in an Ellis Act eviction. The Appellate Division disagreed, and issued an opinion on May 21, 2019, affirming the trial court judgment. The opinion was certified for publication, which can be accessed at https://www.courts.ca.gov/opinions/documents/JAD19-05.PDF.

On July 23, 2019, the first Appellate District of the Court of Appeal of the State of California denied the landlord’s petition for transfer, allowing the judgment in favor of Allen to stand.  The case is now binding precedent in San Francisco and persuasive authority throughout California. “It is exciting to think what this win means for other tenants,” said Allen when she learned her landlord’s petition to the Court of Appeal was denied.

Betty Rose Allen’s Tenancy

Betty Rose Allen and her parents moved into the Noe Valley apartment in 1978, pursuant to an oral rental agreement with the prior owner. Both of Allen’s parents are now deceased. Her mother, Beatriz Allen, was homebound due to multiple strokes, severe anemia, vascular dementia and chronic kidney disease. Betty Rose cared for Beatriz for many years, until she passed away on April 30, 2017, just before the Ellis notice expired.

The terms of the Allen’s rental agreement included the garage on the right side of the building.  The neighbors in the flat below had the left side garage.  Eventually the Allen family no longer needed to park a car in the garage, so they allowed their neighbor to use their garage, as he had multiple vehicles.  However, they never gave up the right to possession of their garage.

Tariq Hilaly and his family (the Hilalys) purchased the property in 2014. In October 2014, prior to purchasing the property, the Hilalys entered into a buyout agreement with Allen’s neighbors in exchange for them vacating the unit below her. Days before purchasing the property, the Hilalys’ realtor asked Betty Rose and her mother to fill out a rental information questionnaire. Where it asked whether they had a parking space, they answer no, because they in fact had a garage and corresponding driveway, not simply a parking space with a parking space number as the form indicated. The Hilalys subsequently used an owner move in eviction to rid one of the three units at the property of tenants. The Hilalys just had to find a way to get Allen and her mother out.

First Attempted Eviction

The first ill-advised eviction attempt came in March 2016, as an alleged relative move (“RMI”).  Betty Rose and her mother Beatriz exercised their legal rights to defend against the RMI. They secured the services of attorneys, Raquel Fox and later, Margaret DeMatteo, to advocate on their behalf. They also contacted the Housing Rights Committee who organized protests and reached out to the media, Both Betty Rose and her mother appeared on Channel 7. Betty Rose and Beatriz’s actions to defend against the RMI, stalled the first eviction attempt and the Hilalys retreated from this tact.

The Hilalys’ attorney, Mark Chernev of Zacks, Freedman & Patterson then rationalized that they changed to an Ellis eviction so that Betty Rose and Beatriz Allen would have the opportunity to get below market rate housing. However, the housing lottery program is applicable to both Ellis Act and Owner/Relative Move in evicted tenants.

Second Unlawful Eviction

On May 6, 2016, the Hilalys served Betty Rose and her catastrophically ill mother Beatriz with a  termination of notice under the Ellis Act and Rent Ordinance §§ 37.9(a)(13) and 37.9A, and filed a Notice of Intent to Withdraw Rental Units with the Rent Board on May 9, 2016. Betty Rose and her mother provided the Hilalys notice of their right to a one-year extension due to their disabilities and Beatriz’s senior status.  The Ellis Act provides an extension to tenants who are senior or disabled, recognizing the difficulties they would face in losing their homes. By the specific language of the Ellis Act and the Rent Ordinance, when the extension is granted, the landlord must continue the tenancy on the same terms and conditions that were in effect at the time they filed the Notice of Intent…a further protection for vulnerable tenants like Betty Rose and Beatriz Allen.

This protection was flagrantly disregarded by the Hilalys. The Allen family had continued using the garage/driveway area for Beatriz Allen’s medical providers to park their cars while making home visits, as they had for years, after the Hilalys purchased the property. However, in August 2016 the Hilalys placed a note on the car of Beatriz Allen’s nurse during the one-year Ellis notice period. The note stated “Please don’t park there in the future.” Betty Rose Allen called the property manager Bay Properties to complain. Thereafter, Bay Properties told Betty Rose Allen not to use the garage/driveway area to park “anymore.”  Betty Rose Allen again called Bay Properties and was told her mom’s medical providers could not park in front of the garage. Her lawyer Raquel Fox demanded reinstatement of the parking in the garage driveway for Beatriz Allen’s medical providers. It was to no avail. The Hilalys, via counsel Mark Chernev, refused.

This change of terms was prohibited by the Ellis Act itself, and it is the ground upon which the jury awarded possession to Allen.  The trial court and appellate division upheld that verdict and found that the rental information questionnaire was not binding as to the issue of the garage and parking.

Despite her requests for the return of her garage, the Hilalys have never reinstated Allen’s possession of the garage and parking to her. In fact, they installed a box requiring a security code to open the garage door, and did not provide the code to Allen.

In discussing the win with Betty Rose Allen, she shared that “there are moments that I feel like this win is a miracle, when I am walking through my neighborhood and when I teaching, it feels like a miracle…I am filled with gratitude that I get to live and work in San Francisco. My mother loved this city, and the idea that I am still part of it is wonderful, it keeps me connected to her, even though she has passed. This win is dedicated to her.”

When asked how it feels to be the first and only person to have achieved this victory, Allen was silent a moment, and then reflected, “I am humbled. Every once in a while when I give up on something because it feels impossible, I stop and think of this and remember that anything is possible.”

Margaret DeMatteo is an attorney with the Tenderloin Housing Clinic. She and THC attorney Raquel Fox represented Betty Rose Allen.

Filed under: Bay Area / California

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