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From the July 2006 Newsletter:
By Andrew Zacks
After suffering through years of uncertainty and ambiguity, small property owners enjoyed a major victory last month when the San Francisco Superior Court Appellate Department held that a 25% owner of record may occupy his or her property under the San Francisco Rent Ordinance’s Owner Move-In (“OMI”) provisions. Ironically, two years earlier the same appellate court had required that a property owner be a 50% owner in order to perform an OMI, even though the Rent Ordinance specifically uses the 25% figure.
Confusion surrounding this issue dates back to the summer of 1998, when Sup. Sue Bierman sponsored an ordinance increasing to 50% the percentage of ownership required to perform an OMI. Later that year, SF voters passed Prop G, which imposed controversial and legally questionable new limits on OMIs, but simultaneously rolled back the percentage of ownership requirement to 25%.
Arguing that this change in Prop G was unintended, tenant advocates and attorneys repeatedly convinced both San Francisco law and motion judges and the San Francisco Appellate Department in 2004 and 2005 that an owner must hold a 50% ownership interest to perform an OMI. This result was absurd, considering that the Rent Ordinance allowed a 25% owner to perform an eviction to allow a relative to move in, while another provision allowed registered domestic partners with a 25% ownership interest to conduct OMIs. The practical result of these two years of erroneous rulings by numerous San Francisco judges is that many owners who might have evicted a single tenant instead turned to the Ellis Act and removed entire buildings from residential rental use.
In Garber v. Levit (2006), San Francisco Superior Court No. 613808, the Court concluded that the legislation enacted last must control. “Because the provisions conflict and are irreconcilable, the one passed later in time controls . . .” It seems remarkable that it would take almost ten years for this simple issue to be resolved in favor of small property owners. But, this case simply highlights the extreme uncertainty and confusion that surrounds landlord-tenant issues in the San Francisco Courts. Even the simplest of issues can be cast in doubt by politically motivated advocates who are pursuing a tenants’ rights agenda.
The basic right of a property owner to live in his or her property has been repeatedly challenged by San Francisco’s overzealous regulators. It is gratifying that the San Francisco Appellate Department has clarified this issue in our favor. Thanks to attorneys Clifford Fried, John Baba and John Mueller for their excellent work on this case.
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