Court Talk

San Francisco Landlords Prevail

by Clifford E. Fried

Keli Cwynar v. CCSF
In this case, six San Francisco landlords prevailed in their attack on Proposition G, the ballot measure passed by voters in November 1998. Prop. G restricted a landlord�s ability to evict a tenant from residential rental property so that the unit could be used as a residence by the landlord or close family member.

Six landlords argued that the law effected an unconstitutional taking by prohibiting landlords from using their residential property for their own personal use. While the Fifth Amendment of the United States Constitution permits the taking of private property for public use, the government must pay reasonable compensation for the taking.

San Francisco Superior Court Judge David A. Garcia said that by creating coerced lifetime tenancies in the landlords� properties, Prop. G effectuates a permanent invasion of the landlords� rights.

Judge Garcia went on to rule that because Prop. G provides no compensation for the affected landlords, as a matter of law, it is “an unconstitutional per se taking of property as applied to each of the plaintiffs.” There is some controversy in the legal community as to what this actually means.

Does Judge Garcia's ruling mean that all of Prop. G has been invalidated? Probably not. In Cwynar, the plaintiffs were only attacking provisions relating to (1) the one owner-occupancy-per building restriction, (2) the family-occupancy restriction (landlord must also reside in the building), and (3) the protected tenant prohibition (can�t evict long-term tenants that are disabled, elderly or catastrophically ill). No other Prop. G restriction issues were before the court.

For example, Prop. G�s requirement that a landlord offer a noncomparable vacant and available unit was not reviewed by the court. Nor was the prohibition against owner move-in evictions when a comparable unit was already vacant and available. Cwynar is not directly helpful to landlords on these issues. In the future, however, smart landlord attorneys will use the same takings arguments made in Cwynar to attack these other Prop. G issues.

To create more confusion, parts of the Judge�s ruling states that Prop. G is a “per se taking” and that it is unconstitutional “as a matter of law. ” Yet other parts of the decision state that the ruling is being made �as applied,” implying that only the Cwynar plaintiffs will benefit from the ruling. The court is possibly saying Prop. G is unconstitutional on its face and as applied to the Cwynar plaintiffs.

Will landlords, in a position similar to the Cwynar plaintiffs, benefit from Judge Garcia�s ruling? Directly, no. The Cwynar case is not a published decision, and other San Francisco judges may choose to ignore it. Until a decision is published by an appellate court, a ruling in a case is not binding on judges ruling in other cases.

Indirectly, other landlords will benefit. Many San Francisco Superior Court judges defer to Judge Garcia on landlord-tenant matters. Judge Garcia has co-authored the leading treatise on this area of the law and is regarded as an expert in the field. Other judges might just follow Judge Garcia�s ruling in Cwynar and apply it to other cases.

Landlords must remember that a case isn't over until all appeals have been exhausted. Tenant advocates are demanding an appeal of Judge Garcia�s decision. In the past, the City Attorney's office appears to have taken its marching orders directly from the tenant community, and an appeal is expected to be filed shortly. Although an appeal may take two years to conclude, the chances on appeal look very good. The result could be a published decision that will be binding on all courts in the future.

Many of the plaintiffs in the Cwynar case are SFAA members and are being represented by SFAA member Barbara Herzig.

John Baba v. CCSF

San Francisco Superior Court Judge James J. McBride struck down several recent amendments to the Rent Ordinance that have been referred to as the “Daly Amendments.”

The Daly Amendments prohibited landlords from certain communications with tenants that could be construed as threats or harassment. This amendment was really aimed at preventing landlords from disclosing future eviction plans by forcing landlords to serve eviction notices on tenants rather than having friendly discussions intended to give tenants more time to vacate.

Judge McBride said that this prohibition violates a landlord's free speech rights and is unconstitutional. Landlords may communicate with tenants as usual without fear of being incarcerated.

Another Daly amendment made it illegal to resolve a dispute with a tenant unless there was a lawsuit filed, the tenant was represented by an attorney and a judge approved the settlement. The city claimed the purpose of this amendment was to prevent tenants from waiving important rights under the Rent Ordinance. However, the effect of the law was to guarantee a lawsuit, and that tenant lawyers remained fully employed.

The judge ruled that this provision violates a tenant's fundamental right to represent himself or herself in a dispute that may or may not ripen into a lawsuit. The effect of the ruling will make it easier for landlords to make deals with their tenants in an effort to avoid protracted litigation.

The ruling in this case opens the door for an attack on the Rent Ordinance provisions that prohibit “endeavors to recover possession,” unless the landlord has just cause to evict. Is it not an exercise of free speech to offer a tenant money to vacate? While the tenant�s bar and City Attorney in San Francisco say no, Berkeley landlords freely “buy-out” their tenants with the apparent blessing of the lawmakers there. The argument here is that San Francisco tenants lack the sophistication to deal with their landlords. In fact, San Francisco has the best educated and smartest citizens. And tenants here know their rights.

The plaintiffs in this case were a collection of San Francisco landlords, tenants and eviction attorneys, some of whom are members of SFAA. Wiegel & Fried represented the plaintiffs in this case.

The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of the SFAA or the San Francisco Apartment Magazine. The information within this article is general in nature. Consult an attorney for any specific problem. Clifford E. Fried is with Wiegel & Fried, 415-552-8230. Copyright � 2003 by Clifford E. Fried.