Evictions Are Serious People

So you are a renter. And for some inexplicable reason bad stuff starts to happen. You lose your job. Your roommate bails on you. You get sick. You have a fight with a neighbor that gets loud. And then the notice to quit comes.

Guess what? You have just entered the eviction process. Except in California, legally, we don't call it the eviction process. It is know as an unlawful detainer. And for tenants, it is not a happy place to be.

Why? Part of it has to do with the nature of the unlawful detainer proceeding. Its quick. Its limited in what issues can be brought up. It favors the property owner, but then that is the casse with almost all landlord-tenant rules.

Another part of the problem is because most judges do not like unlawful detainer cases. They're messy. Often times at least one of the parties is representing themselves. They keep judges away from more interesting, or important, cases. Also, in counties where there is rent control, the judges often times do not have a clue about the rent control laws and how they interact with state law. There's a whole analysis that I'm not going to get into in this article about that, but needless to say, judges will bend over backwards to avoid having to make a decision, in some counties, when they can construe the facts in such a way as to make easier decisions. Don't think so? Take a look at some of the unpublished decisions out of San Francisco Superior Court's Appellate Division, especially on the issue of Civil Code section 827. Something else I'll have to write about in the future.

But back to my main point. If you are a tenant, you face an uphill battle if you find yourself in an unlawful detainer. You do not want to find yourself there.

So how do you avoid it? You take steps to protect yourself. First one, act like a grownup. Just because you are not the owner of the property, does not mean you should not just ignore problems. If the heater does not work, send you landlord an email. Don't just call him and leave a message. Grownups leave paper trails. When you were a kid, you could ask your mom for some money to do something (like say buying lemons for your lemonade stand). Your parents, if they wanted something, needed to put it in writing (whether it be a loan, a permit, a business license. Why? Because the paperwork spells out what they can and cannot do. It also spells out what theother side of the agreement can and cannot do. That way, later on when someone is claiming that they have the right to do something, there is actual evidcence of it.

Second, think about your well being. That's right, be a little selfish and think about what is good for you. The landlord is getting something for themselves, its called money. Now, if you want to ensure that you are getting something for that exhorbitant amount of money which you pay in rent each month, you have to look out for yourself. What does this mean? If there is a problem, do something about it. Now, you can't make major repairs or alterations under most leases. But for those types of things, the landlord is responsible. How will they know to act responsibly if you, the renter, do not take steps to make sure they know about it. Furthermore, if you do not keep a file on things, how will you be able to present a defense should things go south in your living situation? With the proliferation of smart phones and cloud drives, how hard is it to image your documents and save them into a file? Not very. But if you ignore it, and lose the information, don't think for an instant that the landlord will save you by giving you a copy. Remember, the landlord is working for his self-interest. You should do the same.

Third, don't be greedy. A little contradiction here? Perhaps. But when I say don't be greedy, understand that the law requires the rental unit to be habitable, not four star certified. If you are paying $1100 a month, do not expect that the landlord will come in and change the carpets every six months and install granite countertops. If you think that way, its going to lead to conflicts. And conflicts between landlords and tenants rarely end well for the tenant.

Four, don't be an ostrich. An ostrich closes its eyes, sticks its head in the sand and hopes tha the predator does not kill it. A tenant who ostriches is one who will soon be looking for a new place to live, more likely than not with an eviction on their record. If the landlord notifies you of a lease violation, do not ignore it. See if its valid. If it is, correct it. If its not, then tell them IN WRITING. Refer to the part of the lease that makes it their problem, or gives you the power to do something. If it is a Notice to Quit (whether it be 3, 30 or 60) take it seriously.

Now, if you have hit the point where the landlord is seeking to do an eviction, do not be ashamed and ASK FOR HELP. Let me say this again: do not be ashamed and ASK FOR HELP. Too many tenants ignore a notice to quit. Its the precurors to an unlawful detainer action. Unless you are an attorney who pracitces landlord-tenant law, the odds are you do not have enough information to represent yourself. If you want to try and keep your home, rented as it may be, then you should seek out a lawyer's advice on what to do. Will it cost money? In many cases the answer is yes. Is it worth it? In my experience, having a lawyer represent you significantly increases the chance that the tenant will have a better outcome.

Now for the people who say to themselves, "I can't afford an attorney", and actuallly cannot, there are other options. Many counties have a pro bono program which may be able to assist you. In San Francisco, the San Francisco Bar Association's Volunteer Legal Services Project coordinates pro bono placement for low income people in unlawful detainers and other types of cases. For people who do not meet the eligibility requirements, there are panels of attorneys who have agreed to take cases on at a reduced fee.

While you are looking for an attorney, remember, you are on a ticking clock once you have been served. You have 5 CALENDAR DAYS in which to file and serve an answer. That means, if you get it on a Tuesday, your answer must be on file with the court by the end of Monday. If you get served on a Thursday, your answer is due on Tuesday. They do count the weekend days unless the final day is a weekend or holiday. Then the due date beceoms the next court day. Failure to answer means that the landlord can get a default and then a default judgment against you. That means they can get the sheriff out to physically remove you from the property.

For those of you in rent controlled jurisdiction, do not for a minute believe that your rent board can save you from this by filing a complaint with them. They can consider it, but the unlawful detainer case filed in the superior court will take priority and precedence. State court trumps municipal administrative agency hearings almost every time.

So what should you do while you are looking a lawyer, make sure that an answer gets put in. In some counties, there are organizations which help pro per (self-represented) tenants to file answers. In San Francisco, there is the Eviction Defense Collaborative. They will help you to file the appropriate paperwork. They charge a small fee, on a sliding scale fee, that is more than worth it.

If you do not take an unlawful detainer seriously, no one will for you. Losing an unlawful detainer case, either because you defaulted, by not showing up, or at trial because you did not have any documentation about what was going on between you and the landlord, it will effect you for years. It will be reported on your credit, Furthermore, there are agencies which landlords use to see if a prospective tenant has been evicted before. It will make finding a new place that much harder.

Take it seriously. Protect yourself. Get help.

I Guess Its Time To Bash Tenant's Rights Again

As if it's not hard enough being a tenant in San Francisco...


Today on SFgate.com, the webpage the San Francisco Chronicle, there was a headline link to one of the blogs which stated, "Why are so many S.F. Homes vacant?" Underneath that, the subtitle reads, "San Francisco has a higher rate of vacancies than the state and surrounding counties. Is rent control to blame?"


Because that's not in the least bit priming the pump for some more anti-tenant rhetoric, is it? I suppose that's the way the responsible journalism organization makes its money. It takes a target that easy to not like, in this case those awful tenants, and then suggests a problem that may or may not be caused by them.


The big selling point of the "article" is that vacancy rates in San Francisco are hovering around 8.3%.However, a paragraph later, the author notes that vacancy rates in California are hovering at 8.1%. Somehow, a .2% difference represents a drastic difference in the vacancy rates and therefore must mean that there is a problem in our fair city.


Well, if you look at the census data itself, you will see that in fact California does have a vacancy rate throughout the state of 8.1%. and if you bother to look at the last column, you'll also note that there is a margin of error of + or -.2%. so if you do that really complicated map that you learned in the first grade, and you subtract 8.1% from 8.3%, then you will find that there is only a .2% difference. Or you might find that San Francisco's vacancy rate the margin of error.


But I guess it makes for a better tagline to blame the tenants for a problem that doesn't exist. What else should we expect from a paper that ignores have problems, unless it doesn't fit into their nice and neat worldview? And a big thank you to the author of that blog, Jenny Pisillo, for giving such a fair and balanced piece which will only serve to give the landlord lobby one more piece of ammunition to use against the tenants. Perhaps she can go back to doing what you do best, which is highlighting houses for sale and their prices.

Irony?

You run a company. You make your business by evicting low income tenants so that you can sell off the units in the buildings you have purchased for prices between $400,000 and $600,000 each.

What would you call your company?

Well for at least one company that does engage in this practice, they call themselves:  SF Affordable Housing LLC.


Not wanting to get the esteemed author angry at me, but does this not count as irony? 


What's more disgusting is that one of the members who was interviewed had the audacity to state, "Basically, I cannot afford to keep the tenants who on average paying $300 a month in rent[.]" Let's be clear about something, this individual, and any partners he may have, is not the least bit interested in becoming a landlord. His company, based on the report I have seen, buys properties to sell them as individual units, either condos or TICs. 


If you are going to be a bastard and kick people out of their homes, at least be honest about it. You had no interest in being a landlord. You wanted to divide up the property into ever small portions to sell off at inflated prices to line your wallet with more money.


You are, I believe the technical term, a greedy bastard who wants to be liked. If you are going to be a greedy bastard, then be one. Don't try and fool people with statements such as, "If those people need assistance, I’m in a 100 percent agreement that they should be helped, but it shouldn’t be the burden on a landlord." Its insulting because you have no intention of being a landlord.

At least be as honest as the guy who was begging for money down on Kearny and Bush yesterday. He had the decency to hold up a sign saying "Need money for beer."

San Francisco Housing Authority - The Other San Francisco Disaster

Alright. Maybe that's a little unfair. In that it implies that there are only two San Francisco disasters going on. Our Board of Supervisors and Mayor, when he is not campaigning (and by the way, when was the last time he wasn't?), seem to create a new one with each meeting.

But anyway....

San Francisco Housing Authority are the mandarins who are charged with providing and maintaining public housing in the city and county. Only, they are not very good at it. However, they're not quite as good as Muni is at running up a deficit. They've only managed to run up a $ 2.2 million one. That's chump change to SFMTA.*

Small favors I guess.

Why is this? A large part of it has to do with the fact that SFHA, apparently, simply does not collect the rent. Because, apparently, the SFHA thinks it has something else to do on the first of the month when it comes time to collect the rent. According to today's SFGate, SFHA has failed to collect at least $1.1 million in rent. There are, at least, 1,100 tenants who are behind in their rent. Basically, that means that 1 in 6 tenants of SFHA are simply not paying their rent. There is one person who owed $28,000 according to a report from last year. No word yet on whether they have collected.

Does anyone out there know what happens when people don't pay their rent? In case you don't, I do. There are two options. First is an unlawful detainer. An unlawful detainer is fancy lawyer talk for an eviction. The second option is sue for the rent, but not evict.

If I am being honest, there is a third option. It is apparently the SFHA's preferred one: ignore the situation. I suppose that is the easiest for the SFHA. In my experience, the people who work for SFHA are one step above slumlords. Its not they are trying to gouge the tenants in order to profit. Rather, the people who work there are trying to do as little as possible to earn their city salary. If the SFHA actually depended on being efficient to meet their budget, then they might actually have taken steps to get ahead of this problem years ago. However, since the head of the SFHA, as well as the rest of his staff, gets paid no matter how bad a job they do, then its real easy not to be proactive.

Yeah, I know. SFHA won the prestigious "Most Improved" Award from HUD. If the agency wasn't so horribly mismanaged, it wouldn't need to win the award. And the fact that it has decreased the uncollected rent by $1.9 million should not be taken as a measure of success. It should be taken as a measure of failure because three years later, they still haven't gotten the rest of the problem under control. Either you are doing your job, or you are not. And there is no reason that SFHA cannot be doing its job. The people who manage and operate it allow it to underperform. And not just when it comes to collecting the rent either.

So back the question of what will they do? More than likely, they are going to unleash the landlord attorneys that the SFHA contracts with to begin eviction proceedings. The problem is, the people that they are going after the poor. Its not like they are going to get a whole lot of blood out of those stones. Losing their SFHA housing, a lot of them are suddenly going to find themselves.... well homeless.

And as we all know, San Francisco has been doing such a bang up job with homelessness. So of course, SFHA wants to contribute more to that project.

My suggestion? SFHA should just forgive all unpaid rent under $5,000.00. The likelihood of recovering it from their tenants is really, really low. The only thing that it will do is just flood the San Francisco courts with a boatload of unlawful detainer cases. The SFHA will spend a dollar to recover a nickel, and a whole lot of people will end up homeless. However, the flip side of the forgiveness program is that starting, say August 1, SFHA will rigorously collect the rent which is owed. If the rent is late, because SFHA has allowed its tenants to get out of the habit, they will be immediately brought in for counselling to see what is going on. If its late a second month, the three day notice goes out and unlawful detainer to follow.

Would you guess this proposal comes from someone who spends a large part of their practice representing tenants? Well, it does.

The final part of the plan? Fire the head of the SFHA and his staff. Hire new people who are given strict metrics by which to judge their performance. The fact that City and County of San Francisco has allowed this to go on for this long is ridiculous.

People need an affordable place to live, even when they are poor. But conversely, being poor should never be an excuse for people not honoring their end of the bargain. Too often, we here in San Francisco only subscribe to the first sentence.

* Of course, I would be remiss by not stating that SFMTA hasn't gone bankrupt yet. SFHA was all but bankrupt a few years ago because it had managed to perform so poorly that it lost a series of employment sexual harassment suits and a negligence suit because the maintenance of one of the buildings was so bad that a grandmother and her grandchildren died.

The Worst Landlords Ever Just Hit A New Low (Kip and Nicole Macy Case)

So I have been super busy lately, which goes to explaining the dearth of posts lately. But as I was finishing up a case yesterday, some news floated across my path, and I finally have time to talk about it.

You may or may not remember Kip Macy and his wife. Two years ago, they got themselves into trouble. They were so troublesome, that the City and County of San Francisco had to step in and charge them criminally instead of letting the civil courts handle the problem. This lead to the saga of the Macys' bail. After the Macys' attempt to have the charges thrown out failed, they finally made bail.

Well, Kip Macy made bail and let his wife stay in jail while he was trying to raise the money. Eventually, he got her out too. How did he do this? Apparently, Mr. Macy convinced his parents to put their home up as collateral for their bond. Along with turning over their passports, the Macy's were granted bail and released from county jail.

Now, in case you don't know, the purpose of bail to ensure that someone shows up for court. If you fail to show, the court can forfeit the bond. Meaning, that if the Macy's did not show up for court, the judge could forfeit the bond. Which means that the bail bondsman would go after the Kip Macy's parent's home.

This was last year. Since that time, the Macy's have been negotiating with the District Attorney's office to cut a deal. (Incidentally, does Kamala Harris' office ever actually prosecute someone vigorously?) The deal according to the SF Chronicle's people, that was offered was a year in county and five year's probation. When you consider that the three burglary charges alone could have resulted in 8 to 24 years, in addition to $30,000 in fines, and this is a pretty good deal. Its an even better deal when you consider that the Kip and Nicole Macy already have heft time served credits for the months that they were in jail awaiting trial, and it would have been much less than a year they would have spent in jail.

Well, they rejected that deal.

So what happened next? What do you think would have happened, given the track record of these two? Think they showed up in court ready to proceed with clearing their names? Which is, coincidentally, something you would expect innocent people to do. Especially since they had convinced Kip's parents to put their own home up as collateral for the bail.

Well on June 4, there was a scheduled hearing in the case. And the Macy's did not show up. And, the ever vigilent people working at the S.F. D.A.'s office failed to notice something about the Macys' passports when they were surrendered as part of the bail. They did not notice that the passports were about to expire. Which means, according to the story, that the Macys' may have new passports and be fugitives abroad.

And they said that those to two wacky kids were going to break up. I guess when they faced the decision of divorce or throwing Kip Macy's parents under the bus, it was an easy decision to make.

So now, the Macy's are fugitives. The judge has issued a no bail bench warrant for them. And I am betting that the bail bondsman is very keen to get them back, so he isn't out money.

Like I said at the top, the worst landlords ever just managed to find a new low. Not only are they despicable landlords, but apparently cowards as well.

Ahh yes, tenants getting evicted finally makes the news

So, as I am waiting for my car to be fixed, I read about what is going on over in Oakland at the Amber Tree Gardens apartment complex. Apparently, the city has shut it down as a nuisance.

And the Chronicle noticed for once. Good job. Where was the Chronicle the other times that tenants were being wronfully evicted by the banks? Or other slum lords. Apparently, it requires a fire truck to merit the attention of the Chronicle.

But I am reading some of the comments by the tenants. They are complaining that they do not get to go home. Fair. But why have they let this go on for so long? I understand that not everyone wants to be involved in a lawsuit, but if the conditions there were as bad as the article indicates, I have to wonder how anyone could live there that long and not stand up for themselves. Why weren't the tenants not more proactive about getting the city involved or getting a lawyer in there to sue whoever this slumlord is? And why wasn't the city noticing this before if they were?

Anyone there needs an attorney to handle their affirmative suit? I can give you a list or an introduction to a whole bunch of them (I can understand if you don't want me to represent you for calling you a bunch of sheep). The City Attorney, being the one who initiated the legal end of the process, seems to feel like they done enough for now by evicting everyone.

Of course, this being Oakland, I am sure that the city is going to completely muck this thing up. The last time they went after a slumlord was when the Oakland City Attorney's Office went after JP Morgan bank. JP Morgan was wrongfully evicting tenants from their apartments when the buildings went into foreclosure. This was not just one or two people. This was a case of dozens of wrongful evictions. They settled the case. For $35,000.00. Total.

And this was hailed as an example of landlord wrongdoers stepping up and the City of Oakland being tough. Excuse me? No mention of people getting their homes back. No mention of people getting compensated for landlord wrongdoing. JP Morgan paying $35,000 advertises on their website as having $2.1 trillion in assets. That would be akin to fining me a 1¢.

As a matter of fact, I'm not even sure that $35,000.00 would cover the hourly that went into that case.

So yeah, if you think Oakland is going to serve you by protecting your interests a citizen, it looks like you are in a for a rude awakening. When it comes to tenants, the City of Oakland seems to be more interested in looking good, than doing good.

But who knows, maybe City Attorney Russo will surprise me. I'm not going to hold my breath.

What Are the Supes Thinking?

Oh that's right. They think that simply because we are supposed to be a progressive city, that it means we are also supposed to be a socialist one. What am I talking about?

Last night, the San Francisco Board of Supervisors passed a series of amendments to the Chapter 37 of the San Francisco Administrative Code. People around here know that better as the San Francisco Residential Rent Arbitration and Stabilization Ordinance (or as I like to call it "RRASO").

Now, I like rent control. I think it evens the playing field between landlords and tenants. Tenants, as you might have guessed from my leanings in other postings on this blog, are people I represent. Unlike their landlords, they don't have, usually, equal bargaining power. The RRASO evens the playing field a bit.

Talk to a landlord attorney in this town, and they will claim (before yesterday of course), that rent control is the worst thing in the world. That all it does it penalize those poor, hard-working landlords who are barely eaking out a profit because of the meddling of the city. Unfortunately, the San Francisco Supervisors just handed them a new issue to litigate.

Superviso Daly has attempted to make this legislation more palatible by including some provisions limiting the effect of the amendments. According the legislation in its current form, it would only apply where the tenant had lost their job, had their income decreased, or been on a government assistance program for which no cost of living increase has been given in the past year. He also attached a sunset provision to the amendments. The sunsets on the amendment when San Francisco's unemployment drops below 5%. Now, that seems reasonable, it last happened in 2007. However, if you look further, and take the numbers from 2000, it seems that of the last ten years, its dropped below 5% only twice (it tends to hover a little over 5% according to the data the state puts on its website.) So really, its just a guarrantee that this temporary "crisis" will become long term.

So what did the Supervisors do? They passed a series of measures last night. If the new amendments are finalized, then they will do the following:

• Prevents landlords from increasing the rent of tenants to any amount that would exceed 33% of their income.
• Limits the so-called "banked" rental increases to 8%
• Allows roommates to be added without landlord approval so long as the total roommates does not exceed the maximum allowed by city ordinances
• Prevents Landlords from raising rents when additional roomates are added.

Now, the only one that makes sense to me is the last one. If you are renting by person for a rental unit, you are a fool in my opinion. You should be doing by square footage.

So why is this bad? Well, let's start with the first one (preventing landlords from raising rents beyond 33% of someone's income). First, it imposes a lot of work on the landlords. Now they have to do somethign which HUD and local housing authorities have to do with rather larger staffs, namely monitoring people's incomes. Second, the only way it works is if the tenants turn over private information to the landlord. Because as we all know, that just such a good thing to do.

Third, when did we start penalizing people for doing well? I am not a fan of many landlords. However, I do respect those that are savy enough to turn a profit in a down market, and do it ethically and without resort to less than permissible means. But now, Supervisor Daly, who was a prime supporter of this legislation, wants to penalize them in favor of supporting those who make less. If you want to do that, you shoudl put together a fund from the City and County to support their rents. You should not do it by enacting a taking that even a first semester Con law student would be able to recognize.

Simply put: ITS JUST NOT FAIR.

I am so busted if my tenant attorney friends find out about this. But then I've said that before.

But anyways, that brings us to the fourth reason: giving the libertarian landlords another shot at the RRASO in the courts. I guarrantee that if this gets passed, then there is going to be a court challenge. Given the way that the California appellate and supreme courts have been viewing rent control, why would a supervisor who seems so committed to rent control want to give the courts a chance to prune it back. Or evicerate it.

What this really amounts to is an added tax on the landlords. Yes, it may be a little hypocritical the position that I am staking out. But basically I think controlling the increase in rents to be one thing, but limiting rents entirely is something else.

Fortunately, it looks like this is going to be vetoed by Newsom. That is if he can tear himself away from his gubenotorial campaign.

I'm all in favor of tenant's rights. I am not in favor of penalizing people for working hard. And that is what I see this legislation doing.

Macy Update (the Landlords From Hell, Not the Chain)

Doing my weekly sweep for news on what is happening with the Kip and Nicole Macy trial, I came across two articles from the SFWeekly. Apparently, all may not be well in the utopia that is the Macy marriage.

First, they're filing for bankruptcy. This is a bummer since it means that his tenants will almost certainly not be able to recover from the alleged hell they put them through. Then again, I suppose its good since all this has punished them to the point of bankruptcy. Still... I like it when the civil case tips them over. Yeah, I'm a ghoul in that regard. Deal with it.

Second, the Macy marriage itself is rumored to be on its last legs. People are pointing to the fact that every time the duo ends up in jail, that Kip bails himself out, but leaves his wife to sit in lockup. The criminal lawyer for Nicole is denying the rumors, but then again, he would have to deny it for a variety of reasons (say better negotiating leverage in a plea deal for his client comes to mind).

All in all, nothing has really changed. The trial is still coming up. No word on the decision from the motions that were filed

More on the Kip and Nicole Macy Case.. But Few Answers

So there has been some action in the Kip and Nicole Macy case. In case you are not aware, here are some of my earlier postings. Essentially, if the allegations are true, these two give scumbag landlords a new name. Fortunately, they were arrested. Whether they will be convicted is another story.

The defense team for Mr. and Mrs. Macy brought motions to dismiss the indictment against the two. It was supposed to be heard on March 30, 2009, at the Courthouse on Bryant Street. However, I have not been able to see what happened.

Judging by the fact that I don't have any comments from the poster whom I presume is Mr. Macy, I would say that either the motion was unsuccessful, has been taken under submission by the judge after arguments, or has been continued to another date. Basically, sorry but I can't help you. Believe me I would love to tell you, because now its like a cliff hanger for me.

All I can provide you with for now is the motions brought by Kip and Nicole Macy's attorneys. Remembering, this is their argument. The DA will presumably have filed their own response. In reading through these, its interesting that what they say is that they are all but admitting to civil wrongs in trying to evade the criminal ones.

But perhaps that is just my interpretation.

They're Going To Kick Me Out of The Club For This

Apparently Supervisor Daly is proposing a few reforms to San Francisco's Rent Ordinance. But I think Chris Daly is going too far. Oh wait, that's nothing new.

I'm a big fan of it. I live under it. I help people who should be protected by it. I hope someday to have to deal with it as a landlord (go figure). I definitely do not want to see it invalidated or eliminated. In my opinion, given the conditions that exist in San Francisco (and many other large metropolitan areas) it gives renters some way of dealing with landlords on a somewhat even footing.

Now, any time something new gets added to the San Francisco Rent Ordinance, the landlords howl like money has been taken from their pocket. While that might be true, its money that was never in there pocket in the first, place only money which possibly could have been.

But back to my point.

Supervisor Daly has proposed the following:
1. Giving tenants greater rights to add roommates.
2. Limiting the "banked" rental increases.
3. Preventing landlords from raising rents to more than one-third a tenant's income.

Now, of these, only one of them really is needed. The other two are just too extreme. As it is right now, landlords often play a game with long-term tenants who have a history of having roommates. At a certain point, the more unscrupulous ones will stop allowing replacement roommates, or at the very least make it unreasonably burdensome to bring in a replacement roommate.

(Just as a side note, I'm currently litigating a case because after almost 6 years of haivng roommates, the landlord has decided to make it almost impossible to replace a roommate for my client. He has thus far managed to use every excuse imagineable.)

As for the other two, I think that they are mistakes. Currently, the San Francisco Rent Ordinance allows landlords to withhold rental increases. Most years the increase is well below 5 per cent. However, the landlord is able to use the accumulated rental increases all at one time. Under Daly's plan, a landlord would only be able to "bank" so many of the rental increases. Under the current proposal, the total number of "banked" increases would be limited to 8 per cent.

(As a side note, I can just see my future trying to do the math on that and its not pretty.)

The way it stands now is that landlords are limited in their ability to raise rent to what they think the market will bear in return for the promise that they can raise it somewhat to keep pace with inflation. Taking away that right, turns the Rent Ordinance into something punitive. It will only serve to increase the elimination of the landlords renting the two to four unit buildings. Instead, they will probably be more influenced to go the TIC/Condo route. This will take even more rental units out of the market. More units out of the market, the higher the rents will go.

The final proposal is just ridiculou. It may even be violative of the Costa-Hawkins law. Costa-Hawkins is the name of a law which was passed a while ago. First, it preempted local municipalities abilities to create new rent control laws. Second, it made it so that rent controls which were allowed to remain in effect were what is known as vacancy decontrol laws. This means that it limited increases while a tenancy is in effect but that it could not set limits to what rents were contracted at.

The problem with enacting Supervisor Daly's second and third proposals is that it will give the landlord's attorneys another go round at San Francisco's Rent Ordinance. The way that the appellate courts and Supreme Court of California has been viewing tenant's rights is not exactly a good thing for those who want Rent Control in San Francisco to continue. At the very least, it is going to cost San Francisco a lot to try and defend it. My guess would be that even if it were upheld, its implementation would be stayed by the court until the litigation ended. And that could literally take years.

The other side of the coin is that it simplyt not fair. Many landlords in this city are decent people trying to get a return on their investment. This is complicated by the fact that the economy stinks right now. Taking away their ability to make reasonable return in the name economic expediency is wrong.

Landlors can be scum. Tenants need help. Imposing such draconian measures on landlords in the name "protecting" tenants is wrong. At some point, protecting the weak goes too far and turns into oppression for another group.

Besides, I really don't want to Andrew Zacks' law firm getting another chance to eliminate San Francisco's Rent Ordinance.

How about some other ideas to improve the quality of life for San Francisco's renters.

Finally Some News on My Favorite Landlords

Some out there may remember Kip and Nicole Macy. They owned a rental property in San Francisco which they rented out. Of course, their version of being landlords included breaking into their apartments and stealing from them, trying to convince a city inspector to red tag their building to get rid of their tenants, calling the police to arrest at least one of their tenants claiming he was a "squatter" and cutting out support beams from underneath the floors of their tenants apartments.

Sounds like great people to be renting from.

Anyways, today a grand jury returned an indictment against Kip and Nicole Macy. Kip Macy is now being charged with six counts of stalking, four counts of burglary, two counts of false impersonation, two counts of theft, as well as counts of making threats, cutting a phone line, and receiving stolen property. Nicole Macy has been indicted with three counts, of burglary, two counts of false impersonation, an unknown number of stalking counts (perhaps six as well), as well as cutting a phone line and receiving stolen property.

And my favorite part of today's news, both of them are going back into custody because their bail bondsmen won't front the bail for them anymore. The reason? The property they put up (namely the property they were terrorizing the plaintiffs at by damaging it) has declined in value.

Almost like karma at work.

I'd wait to see what Mr. Macy has to say when he leaves an anonymous comment, but last time I was there, they did not allow inmates access to computers at the San Francisco county jail.

And Here I Thought Kip Macy Would Get the Award

Personally, I would still vote for Mr. Macy.

Sort of Important to San Francisco Renters

Now, this is something that I have been aware for a while, but that's because in my practice I deal with a lot of landlord tenant cases on the side of the tenants. However, most lay people probably would be confused by this, especially people who rent in San Francisco.

As renters might have noticed from the falling stock market, the upsurge in bank failures, and the rash of foreclosure notices that have been going around for a while, your landlord might be on the verge of losing their property through foreclosure. For people who do not live in rent controlled jurisdictions, this can be a problem. Basically a renter's lease is typically, though not always, subject to being extinguished by the foreclosure. Apparently its so much of a problem that the San Francisco Chronicle let one of its columnists devote some of his time to writing about it for a change.

However, this is not the case in San Francisco, and to my understanding in other areas which require good cause evictions. In San Francisco, a person who rents in a multi-unit building (i.e. at least two units) may only be evicted where good cause exists. The list of good causes reasons includes: failure to pay rent, nuisance, using the property for illegal activity, illegal sublets, as well as owner-move in, and substantial renovations. The full list is contained within San Francisco Administrative Code, section 37.9.

Now, if you are a renter in San Francisco, and you do receive a notice to quit from someone the first thing you should do is get some counseling about what your options are. In San Francisco, the places to go for help include (this is only for people who live in San Francisco):

San Francisco Tenant's Union - (415) 282-6622
San Francisco Rent Board - (415) 252-4602
San Francisco Bar Association Lawyer Referral Service - (415) 989-1616
San Francisco Bar Association VLSP (pro bono referrals based on meeting certain eligibility standards) - (415) 989-1616
San Francisco Eviction Defense Collaborative - they do drop in work and do not typically give advice over the phone. They are located at 995 Market Street #1200, San Francisco, California.

In order to make sure that you don't end up on the wrong end of an unlawful detainer, or even worse abandoning a tenancy based on a bad notice to quit because of a misunderstanding of the law, you need to be proactive. If you get a notice, contact someone who knows landlord tenant law (either on the list above or another attorney). Do not rely on what the landlord's attorney and/or agents tell you. They do not represent you. Sticking your head in the sand will not just make it go away. A rent-controlled tenancy, particularly in these times is a valuable commodity for a renter. Don't lose it by not taking the steps you need to take in order to protect it.

(Disclaimer: this, like any other postings I make on this site, does not constitute a legal relationship, or the creation of an attorney-client relationship. This article, like all others on this website, are for informational purposes only, and should not be relied upon as legal advice about specific situations. Readers should consult with a licensed attorney if they need help with legal matters.)

More on my favorite landlords: Mr. and Mrs. Macy

So in one of the posts below, an anonymous poster left an address to a site where someone kindly posted a copy of a declaration from a private investigator. This text document may or may not have been used in the bail hearing last week which resulted in the lowering of bail for Mr. and Mrs. Macy.

The anonymous poster (aka IP address 24.80.10) went on to say that the document proved that the victim-witness was indeed untrustworthy. Now, I will admit. I have a bias in favor of tenants. This bias comes to me honestly: I represent a lot of them when they are facing landlords in eviction proceedings.

So I started looking through the alleged declaration (since I have no way of confirming whether this is the final version which was submitted to the court). The document lays out the alleged history fo the building, including what was described in it as "the cheapest sex (club) in the city."

It tells how Scott Morrow is a long-term tenant who seems to get most of his income from public assistance, which makes it possible for him to afford the low rent. There is also mention of a probate case which I missed in my perusal of the online records for the San Francisco Superior Court where Morrow made a claim against the estate of a previous owner. (However, if you look at the description of what happened, it seems like there was something very odd going on in the relationship between the ownership of 744-746 Clementina and the tenants residing there.) Now the claim was rejected, but that was probably correct given that the proper avenue for that claim was a civil action... which Morrow did file and did prevail on in the form of a settlement when the Estate and other defendnats in the suit.

Next, the document starts to refer to each of the complaints made to DBI concerning the 744-746 Clementina. Complaint 200455752 found that the heater did not work, that the thermostat was hanging by a wire, and that a light fixture was also hanging by a wire; 200558238 states again that the heat was not working (tho this time due to PG&E); 200563396, the inspector found that there was no heat, mold, holes in the ceiling, and other code violations; 200563950, the heater not working; 200564814 plumbing work being done without a permit and other work being done with an expired permit; 200564808 refers to the water being cutoff (it was for work which the landlords had failed to give proper notice of); 100564844 (although this appears to be a type and should be 200564844) found that the owners were doing work without a permit and had turned off the water to do it; 200672987 found that there was unpermitted demolition work going on in the building; 200673688 was a complaint that resulted in a notice of violation for a boarded up fire door and missing fire extinguishers; 20067575, and 200795995 are numbers which do not correspond to on-line records; 200676707 complaint records how the building inspector found that the gas to Mr. Morrow's unit had been shut off and could not be turned back on; 200791172 is a little weird, it deals with possibly improperly done work that appears to have been done without a permit; 200795056 appears to have never been fully investigated because the person never met with the inspector; 200795656 deals with more work being done to the building (originally reported as a wall being demolished) without a permit; 200702242 shows a complaint over electrical work being done but does not show any investigation being done beyond opening a file; 200702241 indicates that there was more plumbing work being done without a permit; and complaint 200702930 shows that the Macy's were doing more work at the address, this time with an expired permit.

Complaint 200676878 is my personal favorite. In it, the building inspector writes "Posted NOV at building. Also, Fire, Police and PG&E were there. Viewed unit #2; took photos of cut joists in north west room, saw gas valve in kitchen - it was not capped, and shutoff valve was broken, PG&E capped the pipe." Nine months later, the problems still remained unresolved.

Complaints 200564808, 200673688, 200676878 and 200676707 are the ones which can be directly attributed to Mr. Morrow. All four of these complaints were confirmed by observations of the San Francisco building inspectors.

As for the final portion of the document, the hearsay statements attributed to a Mr. John Larkin, I cannot comment on them. All I can say is that they are unsurprising given that Mr. Larkin was an heir who was presumably caught up in the unlawful eviction case. People tend to not look favorably on people who file suit against their interests.

So let's see. Mr. Morrow has successfully defended suits against him trying to evict him. He has successfully pursued his rights in an affirmative case. Of the complaints made to the San Francisco Department of Building Inspection , all four have resulted in Notices of Violation being issued to the owners of the property. In fact, one of them seems to substantiate the claim that the landlord's were cutting away the support joists which held up the floor to his apartment! The worst that can be said about this person is that his former landlord's do not like him and that he lives on public assistance.

So how does that make him, of the four tenants who are victims in this case, somehow uncredible? Oh, that's right, he did have one suit against the Salvation Army which did not result in him being the prevailing party. Therefore, all the documentary evidence, in addition to the photographs taken by DBI should count for nothing because one of the victims filed a lawsuit in which he did not prevail.

Please, if you are going to smear the victims and give "evidence" of the untrustworthiness of the victim, let's have something better than this.

Why Am I Surprised? (More on the Macy Case)

Apparently, according to Superior Court Judge Garrett Wong, lowering bail for accused criminals is perfectly in line with the law if their victims is alleged to be a vexatious litigant. Maybe that is a little too simplistic, but it seems to be what has happened in the case of People v. Kip Macy and Nicole Macy.

Who are Kip and Nicole Macy? They are the two landlords which have been charged with a host of crimes arising from their ownership of 744 - 746 Clementina St., San Francisco. The short list is this: removing support joists from their tenant's floor when he dared to exercise his rights to contest his eviction, breaking into their apartments and stealing from them, calling 911 to have the police arrest a tenant whom they claimed was a "vagrant" squatting in the building, and trying to convince a city inspector to red tag their building to get rid of their tenants.

But apparently, at a second bail hearing for both Mr. and Mrs. Macy, Judge Wong lowered the bail. Attorneys for the couple, Lisa Dewberry and Michael Whelan, have apparently decided to make the victims in this case appear as the criminals. Dewberry started this a month ago as I noted here. The attorneys argued that the clients have strong ties to the community, no prior criminal history, and that one of the victims was a vexatious litigant who was turning the building into his own personal cash cow by filing suits against the owners.

Whelan, in court on Friday, apparently claimed that the tenant in question, Mr. Scott Morrow, had a "documented litigious nature"who saw the building "essentially as a cash cow to support him" and had "made $140,000 in litigation connected to this case."

Let's see. Landlord wrongs tenant by unlawfully attempting to evict him. Forces him to fight in court in order to preserve the only home he has. After successfully defending his rights, it appears that Judge Wong believes that the tenant should just let by-gones be by-gones and not try to recover for the loss which they have suffered.

And then, when the new landlords took over and performed a bogus Ellis Act, apparently Mr. Morrow was also supposed to just let things go and not try to defend his home. Or to seek to punish, through the courts the people who were committing the wrongdoing.

What I want to know is why the prosecutors did not lay out exactly the history of the litigation instead of allowing Judge Wong to just lower the bail on the theory that one of the victims may be a vexatious litigant. According to the account I am reading, all he did was focus on the fact that there were only four cases filed, as opposed to the number of meritless cases filed against Mr. Morrow.

Of course, there is a hostility in the judiciary right now against tenants. Witness the Action Apartments case and the 1100 Park Lane decisions which have come down in the last 12 months. Apparently Judge Wong decided to read into Penal Code 1272.1 that the criteria for bail must also include how well a defense attorney can attack the character of one of the victims.

Some Misconceptions About Prop 98

So I have been looking through the comments that I have gotten on my posts about Prop 98. I figured I would take this moment to answer them.

Now, the first comment, left by an anonymous poster, deals more with my view of the referendum process in California. I think we allow our legislature here in California get away with too much by having a referendum system that can be used too often. Sure, Propositions 215, 59, and 13 may be much loved. However, for every one of those which might be "much loved", we have had Prop 22 (which changed the California constitution to prevent same-sex marriages), Prop 164 (imposition of terms, giving us the muscial chairs of elected officials), Prop 64 (which has diminished consumer protections by limiting the use of the Unfair Business Practices Act, rushed onto the ballot by the pro-business lobby seizing upon the acts of a small group of unethical people), Prop 71 (the stem cell initiative which passed but as of yet has managed to accomplish....?), Prop 83 (increasing penalties against sex offenders, and possibly tossing away the 8th Amendment, Cal Const. Art. 1 Sec. 17, in the process).

Then again, we have also already, as voters, consider the issue of emminent domain reform in the 2006 election with Proposition 90. And with almost the same language to boot. So hurray, we Californians get to foot the bill to vote, again, on virtually the same ballot initiative.

So, now, to the second comment left by an anonymous poster. (Which by the way annoys me. My favorite scene in the West Wing deals with anonymous letters and how Sam Seborn deals with them.) And in it, this person writes that Prop 98 only outlaws new rent control, but otherwise, it just "only outlaws transfer from one private individual to an other."

First, localities in California (i.e. your local city or town) has been prohibited from enacting new rent control schemes since February 1, 1995 when the Costa Hawkins Act (Civil Code section 1954.50 et seq., and specifically Civil Code 1954.52) went into effect. So, the idea that Proposition 98 will prevent the invidious spread of rent control in California is just plainly wrong. The jurisdictions which have it now are the only ones who are able to have it.

Now, the second misconception is that Prop 98 only outlaws the state of California transferring private property from one individual to another. That is what the proposition's backers would have people believe. However, lets take a look at the actual proposed language in the initiative. It reads,

Sect 19(a) Private property may be taken or damaged only for a stated public use and when just compensation, ascertained by a jury unless waived, has first been paid to, or into court for, the owner. The Legislature may provide for possession by the condemnor following commencement of eminent domain proceedings upon deposit in court and prompt release to owner of moeny determined by the court to be the probable amount of just compensation. Private property may not be taken or damaged for private use.

(Instead of underlines, I am using italics to show where the proposition would amend the state constitution)

Now, that is to be expected. The real changes, as they often happen in legal documents, occur in the definitions. There, the changes read, in part,

(b) For purposes of this section:

(1) "Taken" includes transferring the ownership, occupancy, or use of property from a private owner to a public agency or to any person or entity other than a public agency, or limiting the price a private owner may charge another person to purchase, occupy or use his or her real property.

The classic view of eminent domain, at least as I remember it being taught to me back in junior high and high school is that the government uses the power to force the owner to sell property to the government. However, under this iteration, a taking would include "limiting the price a private owner may charge another person to purchase, occupy, or use" their real property. Rent control limits a private owner's ability to raise rents of their tenants. Therefore, if Prop 98 were to pass, rent control would be history as soon as it went into effect.

However, the "taken" definition could also be applied in other ways. Because the revisions to the California Constitution would now define ordinances which limit the price that a private property owner can charge to sell, it would render unconstitutional a number of environmental laws which limit the use of property. For instance, the California Coastal Commission would find it difficult to protect, conserve, and restore the coastlines, unless every single property owner agreed to be bound by it.

But forget the controversial things like environmental protection. Basically, Proposition 98 would prevent localities, counties, and the State from placing limitations on properties. Think thats just the AngryBell overreacting? Well, read on in the proposition's language and you will note that it says, when defining private use,

(iii) regulation of ownership, occupancy or use of privately owned real property or associated property rights in order to transfer an economic benefit to one or more private persons at the expense of the property owner.

Now, take private use's definition, and read it with the portion which reads, " Private property may not be taken or damaged for private use." This creates an overly expansive definition of the concept of private use. City zoning ordinances could be invalidated because they promulgate rules which limit how a private person uses his or her real property. As the Planning and Conservation League wrote,

Proposition 98 is full of ambiguous language that is open to wide interpretation by the courts. Almost all restrictions on developments and land use provide economic benefits to someone whether through increased property values or benefits to local retail stores who profit from restrictions on locations of “big box” retail giants.

I can think of a number of unintended consequences of the passage of Proposition 98, you could end up with the adult bookstore right next door to the primary school. Big box retailers would be able to put up whatever monstrosities they wanted, where they wanted, how they wanted, as long as they could buy the land.

Now, I like free markets, and a minimum of government regulation. However, in the modern economic landscape, there needs to be some breaks on what people do with their property. Prop 98 has the potential to eliminate all limitations on the State and localities ability to regulate property owners.

Things in favor of Prop 98: Prevent's Kelo-type takings (i.e. condemning private property and transferring it to another private entity).

Things against Prop 99: Elimination of rent control; elimination of environmental laws; elimination of local zoning ordinances.

From my perspective, as a once and future property owner, this is just a bad law. It goes beyond the needs of the people of the State of California. It will impede the ability of the people of this state to enact reforms which are necessary to protect the environment, zoning, and eliminates rent control. There's more than one reason to vote against this law.

Of course, if you want exempt all private real property from virtually any regulation, making it impossible for the state to have any police powers in that regard, then vote for it. But if you are interested in real eminent domain reform, then Vote No on 98.

Rent Control in General (and Just a General Plea to Vote No on Prop 98)

Lately, there has been some articles out there attacking rent control. And to a certain extent, there is something easy about attacking it. Hell, we are Americans here. Kicked the British Crown off of our backs two centuries ago essentially because we wanted to decrease government regulation. There is also the hint that things like rent control are an invidious form of socialism which devalues private property rights.

The problem with any system is that there is always going to be some people who end up getting off better than the system intended. Over at Eye on Blogs, there was a link to a story that purported to be "A Case Study". The actual title is "Adios Rent Control". Now, the gist of the article is that because one person has somehow ended up with a sweet deal, i.e. a house for approximately $2000, per month, rent control as a hole is flawed and therefore should be abandoned.

However, that being said, eliminating rent control, especially in a city like San Francisco would be serious mistake. Take a look at it by the numbers: a median household income for a family here is $67,809 with an average family being 3.22. This works out to approximately $5650.75 per month. Now, according to SFRentStats, the median rent in San Francisco is $2250 per month. This comes out to roughly 40% of the median family's income. Thats a bit on the high side. Most people will tell you that you should never pay for housing that costs more than a third of your take home.

So, you think, that's a measely seven extra percent. Of course, that takes into account that median includes all those little one bedroom and studio apartments. When you start looking at 2 bedroom units (median: $2700 or 47%; average: $3053), three bedroom units (median: $3400 or 60%; average: $3811), and four bedroom units (median: $4000 or 70%; average: $4621), the number change significantly.

Now, I know what you are thinking. Median is not the same as average. (Median is in fact the middle point. As Hyperstats Online explains, " The median is the middle of a distribution: half the scores are above the median and half are below the median. The median is less sensitive to extreme scores than the mean and this makes it a better measure than the mean for highly skewed distributions. The median income is usually more informative than the mean income, for example. ) What it does show that is for fifty percent of the families in San Francisco, the median rents, not to mention the average, are eating up a considerable portion of their monthly budget.

Another argument that is made, and I suppose is made in the "Adios Rent Control" article, is that people hang on to these rent controlled units forever. This in effect means that the population is supporting an individual or family, instead of the unit. However, in a 2007 study commissioned by the city, more than 50% of all renters had been at their current rental for 5 years of less. Only 10 percent had been there for six years, and less than 10 percent had been in the same rental unit for 20 years of more. What does this all mean? Tenants are not staying in rent controlled units forever. Most are moving within five years.

Everyone "knows" someone like the renter in the Adios article. In my practice, I have come across the occasional spectacular deal. However, in most cases, the numbers just do not bear this out. Do not make a decision based on what is clearly the exception and not the rule.

In other places, anti-rent control advocates have argued that rent control prevents new buildings from being built. Combined with a disincentive to invest in older buildings, because of the alleged mass of below market-rate tenants whose rent would make it unprofitable, and you are left with cities with decaying buildings.

Well, if one were to look at the San Francisco Rent Ordinance, or the Berkeley Rent Ordinance (see Section 13.76.050 I), or the Santa Monica Rent Ordinance (see Section 12060 ), or the Los Angeles rent control ordinance (see the fact sheet here) one would notice something in common. All new construction after a certain, typically in 1979, would be exempt from rent control. So why then, is this claimed dearth of new construction? Rent control would not affect these new rental units.

According to the people quoted in today's S.F. Gate, passing Prop 98 would free the developers from having to deal with rent control and lead to an immediate increase in newly built units on the market. This in turn would depress the rental market as a whole.

Sounds like a nice theory. Except when has that ever happened. The best case study available looks to be Massachusetts. In the 1990s, the voters approved a ballot measure which ended rent control throughout the state. What they found was predictable in a way. Yes, landlord's did invest more to rehabilitate their properties (though I have not seen where there was a surge in new rental construction starts). However, they also found that the rents had doubled. Another interesting fact is that the rents in the non-rent controlled jurisdictions also took a jump.

Suddenly, those numbers I mentioned earlier become a whole lot uglier. The median income remains the same ($ 5670.75 per month) but the median rent goes up significantly and the average might be somewhere up around $ 4500? (Hey if my math is wrong, feel free to chime in).

In the case of Massachusetts, and particularly Cambridge, the distribution of people living in rent controlled units was a little different. Unlike Massachusetts, which found that there was actually a very small number of poor or elderly people being helped by rent control, in San Francisco alone there are 80,000 units being rented where the household income is less than $49,000. Thats a significant number of people who will be forced to either pay higher rent or move out of the urban cores (where most rent controlled jurisdictions are). Now, add in the fact that gas in California is now $4.00 per gallon (more or less). So these people will have to commute longer to find jobs, or to maintain the services they require. With no real public transportation alternative available, they will have to spend more money on housing and on transportation.

Now, for those who have jobs out there, but cannot bear the burden of the increased rent which will happen following rent control's demise, think about where you work. According the 2007 housing study, 80% of the people renting in San Francisco also work in San Francisco. How many of those jobs will increase the pay of their employees to help them meet the new rental increases?

Despite the rosy predication of Howard Jarvis Taxpayers Association and other libertarian/conservative groups, a lot of people will lose out if Prop 99 passes and rent controls in California are abolished. Not only will the controls which dictate how much the annual increase on rental units be abolished, but tenant's protections will be eviscerated completely. No longer will landlords be required to evict only for just cause. Without these protections, the landlord would be able to evict simply because they want to raise the rent.

Who will really benefit from deregulation of the rental markets in California? One group: the landlords. However, landlords choose to be landlords (I myself hope to be one someday). However, the amount of benefits which landlords will accrue if Prop 98 passes is out of proportion to what the rest of the population gives up. They become immune to government regulation, since that could be construed as a taking. They get to be free of rent control, meaning that in urban areas, where space is at a premium to begin with, people will be constructively evicted by their rent increases.

What actually needs to be fixed? Oh, that's right, California's eminent domain law. But the landlord's decided that they would try and get it all in one fell swoop when they came up with Prop 98. Do not let them get away with it.

Please get out there and vote on June 3, 2008. Vote no on Prop 98.

And The Spin Begins

If you were watching the news last week, you might have noticed a story on a pair of landlords who were arrested. They are alleged to have been doing some very naughty things to their tenants. This includes: breaking into their apartments and stealing from them, trying to convince a city inspector to red tag their building to get rid of their tenants, and cutting out support beams from underneath the floors of their tenants apartments.

So of course, you know what their defense is. Say it with me, "Its All The Tenant's Fault". According to their attorney, Lisa Dewberry, the landlords are simple, good folk who own a building and have been beset with one problematic tenant who is a "vexatious litigant".

Say the word vexatious litigant to a judge and suddenly they have the image of another Patty Sue in their mind. Add in to the fact that the alleged Patty Sue is, horror, a tenant of their landlords, and suddenly Judge Wong, hearing the bail motion today, said,

he found it "disturbing" that one of the complaining tenants in the case may have previously sued past property owners with similar allegations, as DewBerry alleged today.
"This is a new revelation," Wong said, allowing that he could consider a renewed bail motion at a later date, if defense attorneys can offer written proof of such a claim.

So... if you are a tenant, stand up for your rights, and then have them egregiously violated by your landlord, you have less credibility? Goes back to my theory that tenants have no rights in California.

By the way, the tenant that complained is named Scott Morrow. A review of the San Francisco Superior Court's docket reveals that he has been involved in litigation over the years. By my count, been a party to 3 restraining order proceedings (two as plaintiff and one as defendant), the plaintiff in 3 other unlimited civil jurisdiction cases (all three as a plaintiff) , one probate matter, and 2 unlawful detainer actions (both as defendants at the Clementina Street address).

Now, sounds like a lot of paper flying back and forth. But then take a step and consider that most of it interacts with each other. For example, in 2000, the former owners of the building tried to evict Morrow. He fought and won the case at the summary judgment stage (which is fairly impressive when you consider that judges do not like to grant summary judgment motions, and the system is set up to make it, rightly, hard to get a summary judgement in one's favor). As a result of the attempt to unlawfully evict , Morrow apparently turned around and filed a wrongful eviction suit in 2001. Looking at the docket, it appears that a settlement was reached. There is also a 2003 personal injury case that does not involve the property.

Between 2001 and 2006, it appears that all was quiet on the "vexatious litigant" front. Then, the new owners of the property, Dana Street LLC (the Nevada-based LLC of the Macy's... would it be wrong to suggest that they were trying to avoid paying corporate taxes to the State of California by cynically setting one up out of their vacation home?). Then suddenly litigation started again. Why? Judging by the unlawful detainer filed in the case, the Macy's... I'm sorry ...Dana Street LLC had decided to Ellis Act the building.

Now in San Francisco, when one has a multiple unit building and one wants to maximize their return on the investment, what does a building owner do? Well, the TIC and/or condo convert it. Why not keep renting it out? Well, simple economics will give you that answer. Looking at the prices of real estate, especially in the smaller multi-unit buildings, I would hazard a guess that it is almost impossible to make a profit in the short term, especially if there are long-term tenants in the building. If one is prepared to be a landlord for a few years, the profit will come. However, with two unit buildings going for well over a million dollars (and in some neighborhoods going for two million), it is almost impossible to get tenants who will be able to afford the rent necessary to pay for the inflated prices. But, if you sell it off as individuals, you too can contribute to the price inflation by getting close to million (if not more) for each unit as a TIC (more if you win the condo lottery).

(This then contributes to the prices being high, TIC owners being ticked, and affordable housing for median income earning San Franciscans from being destroyed.)

But, instead of simply going quiet into that goodnight, Morrow fought back. And from the looks of it, had the Unlawful Detainer case fought to a grinding standstill. Mr. Morrow was probably going to lose.

And then, as they say, something happened.

First, on the heels of winning summary adjudication on some issues, the attorneys for Macy's and Dana Street LLC,the firm of Zacks, Utrecht, and Leadbetter LLP, made a motion to be removed as counsel for the plaintiffs. Now this is kind of odd, one would think. Sometimes, attorneys have falling outs with their clients. Sometimes the clients do not pay the bills on time (or ever). But with the filing of the 2007 complaint, it seems more than likely that something else was going on and Zacks and his firm had to remove themselves from the case.

Apparently, not happy with the progress that Zacks' firm was achieving for them legally, they started to play hardball. According to the complaint, this included trying to have the police remove Mr. Morrow as a squatter, shutting off his utilities, and sending out threatening messages to both Mr. Morrow's attorneys and the attorney's for Dana Street LLC. This included one message to attorney Andrew Zacks which, according to the Chronicle story, stated, "One day you are going to come home to the Victorian house ... and find (your three children) missing. Then each day a package will arrive with a piece of them. You are f- with the wrong person." Other emails which went out included a pair firing Morrow's attorney. It would have been harder to disprove, except for the fact that Morrow is apparently an elderly, disabled tenant, who does not have an email account (Yes, Luddites do exist, even in San Francisco).

I am sure that if you compare the date of that email, alleged in the 2007 complaint, you will find it corresponds to the flurry of restraining order hearings which involved Mr. Morrow in 2006.

Unfortunately, as the saying goes, a lie will be around the world before the truth gets its boots on. And in this case, the Macy's seem to have found an attorney who is not in the least bit shy about throwing mud on the victims of this case.

Fortunately, Judge Wong issued a gag order. Let's see how well that will be respected by the defendants.

Why Not Just Say That Tenants Have No Rights

Lately, things have not been going well for tenants up on appeal. First, there was last year's Action Apartment decision (Action Apartments v. City of Santa Monica, (2008) 41 Cal.4th 1232). Now comes the First District Court of Appeal in the case of 1100 Park Lane Associates v. Feldman.

Action Apartments was the culmination of what I believe is the law of unintended consequences. In the 1980s, corporations or people started to sue people for protesting certain practices. These types of suits became known as SLAPP suits. Essentially, certain parties were using the courts to restrict people's speech by forcing them to litigate the cases. In response to the rise of SLAPP suits, the California legislature passed a law which is now section 425.16 of California's Code of Civil Procedure, an anti-SLAPP statute.

Section 425.16 allows a part defending against a complaint or cross-complaint to file a motion. If the motion is successful, it terminates the case. The court, when considering an anti-SLAPP motion decides two things. First, it determines whether the activity challenged by the complaint is a protected activity. Second, the court determines whether the plaintiff (or cross-complainant) has a probability of prevailing in the law suit. If the plaintiff loses, they could also be responsible for attorneys fees. If the defendant loses their anti-SLAPP motion, they can appeal it immediately. While the case is up on appeal, the case is stayed.

Now, the basic idea is good. However, at least in the case of landlord tenant law, it is effectively stripping tenants of their rights. In Action Apartments, the California Supreme Court held that serving a notice to quit, the document needed to initiate an eviction action, on a tenant is a protected activity covered by the litigation privilege. Essentially, what this boiled down to is that the court found that if a landlord served a notice to quit, a tenant could not later sue the landlord for wrongful eviction based on the notice to quit.

Action Apartments made things harder for tenants. However, the opinion seemed to leave open some ways for tenants who had been wrongfully evicted by their landlords to seek redress. Then came the decision in 1100 Park Lane Associates v. Feldman.

In Feldman, the landlord 1100 Park Lane Associates LLC (of whom some of the members are Walter Lembi (of the CitiApartment/Skyline Realty Lembi family) and Andrew Hawkins) leased an apartment to Peter Levi. Mr. Levi had sub-tenants, Konrad Feldman and Jennifer Foote-Feldman, who were approved by agents of the 1100 Park Lane. A month after they moved in, and after they had been told that they had done everything necessary in order to be approved sub-tenants on the premises, they were contacted by the landlord. As the appellate court's opinion states, "

On June 2, 2005, the Feldmans received notice from Andrew Hawkins, who identified himself as the "trouble shooter" for the owner of the apartments, that their sublease application had not been approved and they were in possession of the premises unlawfully. Although the Feldmans showed Hawkins their documentation from Seigel, Hawkins insisted that they were unapproved occupants and that they would either have to leave or pay "market rent" for the premises, estimated to be over $2,000 more per month than the monthly rental the Feldmans were paying under the sublease.

When the Feldman's would not agree to the rate increase, Park Lane initiated an unlawful detainer by serving a three day notice and then filed a complaint with the San Francisco Superior Court. The unlawful detainer alleged that the eviction was proper because the Feldmans were unapproved subtenants and that they had changed a rug in the apartment without permission.

Eventually, the Feldmans surrendered their lease. However, they then retained counsel, ironically enough a firm that spends most of its time evicting people on behalf of landlords, and field suit. The suit consisted of the following claims: (1) retaliatory eviction, (2) negligence, (3) negligent misrepresentation, (4) breach of the implied covenant of quiet enjoyment--tort and contract, (5) wrongful eviction, (6) breach of contract, and (7) unfair business practices (Bus. & Prof. Code, § 17200).

Upon receiving the complaint, Park Lane filed an anti-SLAPP motion. The trial court ruled in favor of Park Lane, as the appellate court noted, "The court found that all seven causes of action arose from Park Lane's right of petition, but that the Feldmans had failed to establish a probability of prevailing on the first cause of action only. It awarded the Park Lane cross-defendants their costs and attorney fees pursuant to section 425.16, subdivision (c), with the amount to be fixed pursuant to a noticed motion."

On appeal, the trial court's decision was upheld. The court held that all of the causes of action related to the landlord serving the notice and filing the complaint for unlawful detainer. The court even went so far as to state that,

The Feldmans argue that their breach of contract cause of action is not covered by the statute, because the activity of breaching the contract is separate and distinct from the protected activities identified above. We disagree. First, it is established that conduct alleged to constitute a breach of contract may also come within the statutory protections for protected speech or petitioning. (Navellier I, supra, 29 Cal.4th 82, 92; Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 273.) We focus, as we must, {Slip Opn. Page 15} not on the label of the cause of action, but on Park Lane cross-defendants' activities challenged in the cross-complaint. The breach of contract claim contends that the Park Lane cross-defendants "breached the Addendum by the actions alleged herein, and by illegally evicting Levis from the premises, seeking thereby to deprive Cross-complainants of their contractual rights to occupancy of the premises." "The actions alleged herein" are Hawkins's threats, the service of the three-day notice, and the filing of the unlawful detainer action. The activities that allegedly breached the contract were the protected activities. The claim that the eviction was "illegal" because the Feldmans were lawfully in possession under the Addendum does not transform these protected activities into something different or independent. The breach of contract cause of action arose from protected activity.

Basically the court stated that even though there was a contract, and that the contract was breached by the landlord, the tenant has no means to bring an action in the court. Essentially, the service of the notice and/or complaint for unlawful detainer immunizes the landlords.

Let's see... the landlord can violate the terms of a contract and suffer... nothing if they have done something that could be deemed protected by the litigation privilege. Should the tenant violate the terms of the contract, they get served with a notice and most likely followed by a complaint for unlawful detainer with a serious chance of being evicted. Now, where is the equity in that?

Prior to Action Apartments, when a landlord did something like this, they would face a lawsuit for wrongful eviction. If they had done wrong, then the landlord would pay for it. The argument by the landlords' groups was that this was penalizing the small "mom and pop" landlords who were just renting some property and not legally savvy enough to know when they were breaking the law and that they should be protected. (And as a side note, I seem to remember being taught from a very young age that ignorance is not a defense under the law.)

Now we have law being interpreted in such a way that litigation privilege is now being used to oppress tenants who are being unlawfully evicted. Instead of the law being used to compel people to honor lawful agreements, it is now being used to protect the stronger party in an unequal relationship from having to face virtually an consequences for their wrongful acts!

Unfortunately, the way that the opinions have been written, the only redress seems to be the legislature. However, the way that the California legislature has been viewing landlord-tenant law lately, it seems unlikely that there will be any relief for tenants coming.

No regulation, no redress in the courts, and almost no chance of liability to being bad to your tenants... must be good to be a landlord right now.