This Longtime Abuse Can Be Stopped
Owner move-in evictions are making news again. A February report alleging a lack of city oversight and prosecution of those abusing this provision has led multiple supervisors to propose new legislation. Although the February news story simply updated a November report, the earlier story’s proximity to the elections apparently led it to be missed by city officials.
I began representing tenants facing owner move-in evictions in 1983. Attorneys from the Tenderloin Housing Clinic, which I head, have been representing such tenants ever since. Before we get all excited about passing new legislation unlikely to make any difference, let’s examine the facts.
When I got started, the city’s OMI law was an invitation to fraud. The 1979 rent law had so many loopholes it took an egregious set of facts—and I saw many—to stop an OMI eviction.
Today, after a series of ballot measures, the OMI law is dramatically stronger. Mayor Lee has provided the funding for attorneys to provide vigorous legal defense and it has made a huge difference.
OMI evictions are actually down in the past year. They have not increased since funding for legal representation increased in 2015. That’s because speculators know they will face two years of litigation over their OMI eviction and that they will be forced to prove in court that they have acted “in good faith and without ulterior motive.”
That’s not a standard many speculators can or want to try to meet. Not surprisingly, OMI evictions are now far below the historic highs from 1997-2004.
As San Francisco toughened its OMI law speculators realized that Ellis evictions were much easier. A tenant has far more legal defenses to an owner move in eviction than an eviction under the Ellis Act. If the speculator has no plans to ever again rent units in the building (instead converting to Tenancies In Common), Ellis becomes the preferred alternative.
The photo accompanying this story shows two extraordinarily vulnerable tenants facing an OMI eviction in 2016. Their attorney, Raquel Fox of the Tenderloin Housing Clinic, successfully stopped the eviction. The owners then issued Ellis Act eviction notices. While a harder fight, Fox believes she can stop this eviction is well.
Owners Not Moving In
When the media reports that 24 out of 100 units it investigated had no owner or relative living there despite the OMI eviction notice, a key fact is overlooked: the rise of tenant “buyouts” have facilitated what may appear to be illegal owner move-ins. Here’s how.
An OMI notice is served. The tenant retains a private attorney who negotiates a large buyout of his client’s tenancy. Under the terms of the buyout, the tenant gives up the right to sue for the owner’s failure to move in.
Stopping this use of OMI notices as a pretext for a tenant buyouts became a major focus of former SF Tenants Union leader Ted Gullicksen. Ted got a law regulating buyouts enacted, but it’s not clear the law has made much difference. And when the tenant has legal counsel, any agreement reached is unlikely to be challenged by city officials.
Attorneys at the Tenderloin Housing Clinic do not represent tenants interested in buyouts as our goal is to keep tenants in place. But private tenants attorneys have created a successful business getting large payments for tenants. These tenants may prefer getting money to staying in their unit, or may prefer getting a large buyout to spending two years in litigation stopping an OMI eviction.
This desire to avoid the stress of litigation is understandable. Tenants have full work and personal lives and the idea of diverting both to defending an eviction where success is rarely guaranteed—though THC attorneys have a good track record of winning—can make getting a payment to move the best option.
Some question why a tenant should have the legal ability to waive the owner’s legal obligation to move into the building under the strict requirements imposed by city law. Tenant groups have not pushed for a law to restrict a tenant’s ability to get a buyout in exchange for allowing the owner not to move in, a measure which I presume would be vigorously opposed by the tenant attorneys profiting from buyouts.
Building Housing Reduces OMI Evictions
When OMI evictions jumped to an unprecedented high of nearly 1500 in 1998-99, it confirmed an assessment I made after the dot com boom began in 1995: many people who want to be owners will evict tenants to achieve this if other ownership options are lacking. That’s why I publicly supported live-work loft construction when activists were protesting these projects every Thursday at the Planning Commission; the claim that “if you don’t build it they won’t come” was refuted by the staggering OMI eviction numbers.
Live-work lofts were not “luxury” housing. Instead, they offered people desiring to buy an alternative to a TIC in the Mission. Yet live-work lofts came to symbolize the gentrification of San Francisco, as if OMI evictions of Latino families from existing units were not a greater and more direct cause of the neighborhood’s transformation.
Today, most tenant activists still see new market rate housing construction as the chief engine of gentrification, even though such housing causes no direct displacement. Yet it should be obvious that the decline in OMI evictions in the past year, and the relative stability in numbers since 2015, partially reflects the newly built condo units that have given potential buyers a non-eviction route to ownership.
San Francisco passed a law under Willie Brown that would have stopped most OMI and Ellis evictions, but the court threw it out. That law would have required Planning Commission approval for converting rental units to tenancies in common, killing the economic incentive for both types of eviction.
So I cannot make believe that a new amendment to the rent law, or city or district attorney investigation into OMI evictions will make much difference. It won’t.
The best way to reduce such evictions is to fund tenant legal defense, expanding ownership opportunities that do not require tenant displacement, and expand nonprofit acquisition in high risk neighborhoods like the Mission (omitted from JK Dineen’s SF Chronicle story on Mission nonprofits is Mayor Lee’s role in providing more affordable housing money specifically for the Mission than likely all prior mayors combined). A subset of this nonprofit housing is the Small Sites Acquisition Program, which stops both OMI and Ellis evictions.
San Francisco is currently pursuing all of these essential strategies for stopping owner move in evictions. And the number of sham evictions should continue to go down.
Randy Shaw is Editor of Beyond Chron.Filed under: San Francisco News