Bay Area Reporter - August 3, 2001
Jason Stein, ALRP Housing Attorney

Dear ALRP:

I have been living in the same apartment for the past 10 years. There are three other units in the building and I know they are all paying much higher rent than I am. Now my landlord is saying he wants to move into my apartment. If I have to move I will not be able to afford an apartment in San Francisco, and as a person living with AIDS, leaving San Francisco means giving up my support network of friends, health care providers, and many social services. Needless to say, I'm scared of the prospect of losing my home, and frankly, I'm angry too. I have a hunch the landlord doesn't really want to live there but wants to get me out so he can raise the rent. Do I have to move?

Signed,

Doleful on Dolores

This hypothetical inquiry mirrors many of the calls I receive at AIDS Legal Referral Panel so I will discuss OMIs generally.

Dear Doleful:

The answer depends on whether your building is covered by the San Francisco rent ordinance. If you rent an apartment in San Francisco, your building may be covered. If so, you can only be evicted for causes allowed by the rent ordinance. If your landlord is selling the building, the new owner "steps into the shoes" of your old landlord, and your tenancy should remain just as it was with your old landlord. The rent ordinance means that any landlord, old or new, cannot just throw you out.

One of the most popular ways for landlords to try to evict tenants is by an owner move-in or OMI. For the purposes of this column, I will discuss how the law applies to multi-unit residential rental buildings, not single family homes or condos.

Just what is an OMI?

An OMI allows an eviction in order to let an owner or an owner's relative move into a unit currently occupied by a tenant. Only one OMI per building is allowed, even if the building has several owners. An owner must occupy the unit within three months of when the tenant leaves. An owner who already resides in the building may OMI another unit in the same building to permit the owner's relatives to move in.

As with all notices to vacate in San Francisco, there are strict rules regarding the form and content of the notice and you should seek competent advice as to whether your notice is valid. You will usually get a 30-day notice, and the owner must pay each tenant who has resided in the unit for 12 months or more a minimum of $1,000 in relocation costs. Each tenant gets $500 upon service of the notice and that money is non-refundable even if the owner later decides not to go through with the OMI. When the tenant actually leaves the unit, the owner must pay each tenant another $500.

For any OMIs, if your landlord owns another comparable vacant unit in San Francisco, that unit must be offered to you at a rate similar to your old unit, with adjustments made for differences in the units.

You may be protected from OMI

Fortunately, for some of us there are protections from OMI evictions. You cannot be evicted under the OMI law if:

- you are over 60 years old and have lived in your apartment for over 10 years;

- you are disabled (as defined by SSI guidelines) and have lived in your apartment for over 10 years;

- you have a catastrophic illness and have lived in your apartment for over five years. Talk to your doctor to see if you have a health condition that qualifies as a catastrophic illness.

But these protections do not apply if the owner is moving in a relative and the relative is over 60 or disabled or has a catastrophic illness, and no other unit is available.

What if landlord is bluffing?

Some landlords have threatened to OMI tenants or even initiated OMIs in order to scare a tenant into vacating the unit. Once the tenant leaves, the landlord will raise the rent to market value and re-rent the apartment at a higher rate. OMIs must be made in "good faith" - meaning, the owner must have the honest intention of moving into the unit. The owner also must intend to occupy that unit for at least three years. If the owner doesn't move in within three months or stay for the full three years, the owner must re-rent the apartment to the displaced tenant at the same rent as before the OMI. This is also evidence of a "bad faith" OMI. A bad faith OMI can result in the owner being sued by the displaced tenant for wrongful eviction. Owners who intend to OMI should be very clear about the rights of their tenants before attempting to OMI a unit.

This column is meant to give you general information about OMIs and potential protections, but it does not cover all aspects of OMIs. Also, these laws may change frequently, so if you are served with a notice for an OMI or any kind of notice to quit, you should seek the advice of a legal professional immediately. You can also get more information from the San Francisco Residential Rent Stabilization and Arbitration Board at (415) 252-4600 or visit their Web site at http://www.ci.sf.ca.us/rentbd/ for information on OMIs and other landlord/tenant issues.

Since 1983, ALRP has provided free and low-cost legal services for people with HIV in the San Francisco Bay Area. ALRP provides direct services and referrals to HIV-sensitive panel attorneys. ALRP can assist you in a variety of matters, including credit and bankruptcy, insurance and employee benefits, wills and powers of attorney, landlord-tenant relations and housing issues, government benefits, employment, confidentiality, and establishing child guardianship. This article is not intended as legal advice for your specific situation.

Do you have any legal questions? Call ALRP at (415) 701-1100 or (510) 451-5353; or write: 205 13th Street, Suite 2170, San Francisco, CA 94103-2461. For specific questions regarding housing call (415) 701-1200, ext. 314. To find out more about ALRP visit the Web site at www.alrp.org.
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Always watch for outdated information. This article first appeared in 2001. This material is designed to support, not replace, the relationship that exists between you and your doctor.

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