THC’s Long Battle Against the Ellis Act

by on February 18, 2020

Some Victories Won But Larger Reform Awaits

The year was 1986. After a long legislative session Assemblymember Art Agnos’ aide assured me that they had “taken care of all the problems with the Ellis Act” and protected SRO hotels. The law passed and sponsor Jim Ellis said it would be seldom used because few owners would want to keep a vacant building.

Recalling this, it would be easy to attack Agnos and other Democrats (who controlled the Assembly and Senate) for passing a bill that became the leading force for no-fault tenant displacement in San Francisco and Los Angeles. The Ellis Act provokes insecurity among hundreds of thousands of tenants across California, all because the legislature wanted to make sure that landlords could maintain vacant buildings.

That makes no sense. Preempting just cause eviction laws in order to eliminate housing never should have happened.

But in the short view Agnos’ aide was right: the legislature did put in safeguards to prevent the Ellis Act from wreaking havoc on rent control laws. Unfortunately, anti-rent control judges saw the Ellis Act as a way to accomplish for landlords what the legislature and local voters would never support. Courts rewrote the Ellis Act to eliminate protections expressly included in the bill.

Courts Rewrite the Ellis Act

The Ellis Act preserves local “land use” protections. But courts said that local anti-demolition laws did not involve “land use”! Suddenly in 1997 invoking the Ellis Act didn’t just give landlords a vacant building it gave the right to demolish rent controlled housing and not replace it!

Even more destructive was a new legal standard—never included in the law itself—that prevented local governments from “impermissibly interfering” with Ellis Act rights. Who determined what limitations on Ellis rights are “impermissible”? It was often anti-rent control judges. That’s who rendered appellate ruling after appellate ruling expanding the power of the Ellis Act. This completely subjective legal standard that appears nowhere in the law gave judges almost complete freedom to throw out local laws  San Francisco kept passing to stop Ellis Act evictions.

Because Ellis’ plain language limited its use, it was not until the late 1990’s for the destructive Court of Appeal rulings to be issued. The state’s first high profile Ellis eviction case then emerged from San Francisco’s Noe Valley. Lola McKay, a 50 year senior tenant, faced eviction from a speculator who later went to jail for elder abuse. Represented by Tenderloin Housing Clinic attorney Raquel Fox, McKay died in her home before she could be displaced.

THC Gets Burton’s Help

Lola McKay was the first of many Ellis evictions of vulnerable tenants handled by THC attorneys. I discuss several in my book, Generation Priced Out,   and was glad to share the stories of these tenant struggles as they and their attorneys fought valiantly and sometimes successfully against displacement.

The combination of terrible court rulings and their impact on San Francisco seniors led me to approach State Senator John Burton for help. In 1998 and 1999 Burton worked feverishly to address some of the biggest problems with the Ellis Act. We did not get all the reforms we wanted but we did get (through Burton’s immense legislative skills) a one year Ellis eviction notice period for senior and disabled tenants. That has made a huge difference.

We also got a legislative override of the court ruling that said the Ellis Act preempted local anti-demolition laws. Our Ellis reform restored local protections against the removal of rental units in a building as well.

We had hoped to win more. But looking back now, these gains were huge. And we knew that we never could have won any of those vital reforms without John Burton’s leadership (See my story, “John Burton: A Hero for Our Time.”).

Protecting SROs

After Burton’s help we got another bad court ruling saying that San Francisco’s law protecting SROs from conversion was also pre-empted by the Ellis Act. The 156 unit Chronicle Hotel at 936 Mission then invoked the Ellis Act and THC attorney Raquel Fox was representing all of the remaining tenants (all were seniors and longterm residents).

Due to Fox’s legal skills, the law and motion judge threw out the Chronicle’s  Ellis notices on procedural grounds. And while the case was on appeal, I asked newly elected San Francisco Assemblymember Mark Leno to carry a bill exempting the city’s SROs from the Ellis Act.

Naively, I figured with a Democratic legislature and governor we wouldn’t have any problem. When I was dealing with Burton he handled all the legislators himself. Now I had to be involved in winning Assembly support and learned with Leno’s AB 1217 that the Ellis Act had become akin to Holy Scripture for some legislators. Even though our bill did not impact other parts of the state, legislators felt any change had to be resisted out of concern that enacting this bill would open the door to others.

A bill I told Leno would be easy to pass turned out dominating his first year in office. But he rose to the challenge. Due to Leno’s incredible commitment, we got the bill passed by one vote in the Assembly (Burton wired the Senate). Thousands of San Francisco’s SRO units would have been converted by now had we not gotten the Leno bill enacted.

Stopping Speculator Evictions

In 2014, THC joined with the city of San Francisco to go to now Senator Leno for a bill to stop speculators from buying buildings one day and “going out of the rental housing business” the next. Mayor Lee got the tech community on board, and did everything in his power to help pass the bill. But term limits had removed John Burton from the legislature and we did not have legislative leaders twisting arms to pass Ellis reform. We lost narrowly in a heartbreaking defeat brought by two Southern  California Assembly Democrats who put speculator interests first.

San Francisco generously funds THC attorneys to defend Ellis Act evictions. I’d love for the Ellis Act to be repealed and the city to spend its money elsewhere. Now that Los Angeles is suffering from Ellis evictions and the state’s housing crisis is so much worse than in 2014 and 2015 (when we lost on Leno’s bills) I hope we can pass an Ellis reform or repeal measure next year.

Winning  Ellis reform to stop speculator evictions (achieved by imposing a 5 year delay on implementing Ellis after purchase) would have been a great 40th anniversary gift for THC. We’ll be just as happy to enjoy this victory in our 41st year.

Randy Shaw

Randy Shaw is the Editor of Beyond Chron and the Director of San Francisco’s Tenderloin Housing Clinic, which publishes Beyond Chron. Shaw's latest book is Generation Priced Out: Who Gets to Live in the New Urban America. He is the author of four prior books on activism, including The Activist's Handbook: Winning Social Change in the 21st Century, and Beyond the Fields: Cesar Chavez, the UFW and the Struggle for Justice in the 21st Century. He is also the author of The Tenderloin: Sex, Crime and Resistance in the Heart of San Francisco

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