I own one unit in a two-unit building. I relocated a few years ago, but now my job is transferring me back to San Francisco. My unit is occupied by an elderly married couple, both 61 years old. Can I move back into my unit?
Maybe. A big misconception amongst landlords is that there is an automatic right to move back into a rental unit under the owner move-in, or OMI, law. The fact is that the OMI law, which was radically changed beginning in 1998 and will again in 2017 be strengthened, severely limits the ability to displace rent controlled tenants.
Before 1998, any owner holding a 25% recorded interest in a property could displace tenants provided the apartment would be owner-occupied for at least one year. In the late 1990s and thereafter, a series of laws were passed that made OMIs more difficult by adding the following restrictions: (1) only one unit in a building may be subjected to an OMI eviction regardless of how many owners there are; (2) tenants who are over 60 years of age that have lived in the apartment for 10 or more years, tenants who have a disability and who have lived in the apartment for 10 or more years, or tenants who are catastrophically ill and lived in the apartment for five or more years may not be evicted under the OMI law (and a more recent amendment prohibits OMI evictions of families with school-aged children during the school year); (3) any unit recovered by an owner must be occupied by that owner as a principal place of residence for at least the next three years, and, if rented after completion of the OMI, the rent that may be charged for the next five years may not exceed what the evicted tenants were paying; (4) tenants being displaced under the OMI law must be paid relocation, which is currently about $6,000.00 per tenant plus an additional payment of approximately $4,000.00 for any tenant who is elderly or disabled, or is a family with a minor child or children; and (5) a landlord may not displace a tenant if a comparable unit owned by the landlord is vacant or available, and if a non-comparable unit is vacant, it must be offered to the displaced tenant. There are other requirements, but these are the basics.
This year, the supervisors are looking to pass legislation that will (i) require the OMI landlord to file yearly affidavits with the Rent Board to establish the recovered apartment is being used as a principal place of residence; (ii) encourage the District Attorney to criminally prosecute landlords who perform bogus OMIs; and (iii) loosen barriers for tenants and non-profits wishing to file civil cases against landlords who do not comply with the OMI law.
In addition, any owner doing an OMI must, if the eviction is challenged, prove to the court that the OMI is being done in good faith, with honest intentions, and without ulterior motive. This means that a jury may decide to disallow the OMI because, for example, a tenant paying low rent was targeted whereas higher rent paying tenants in the building were not; or, as this question highlights, the tenants are elderly and, while maybe not “protected” from OMI because they have not resided in the unit for 10 or more years, they are more likely to live there for a longer period of time than a 30-year-old couple who will have children and move to Marin in five years. Thus, even if you satisfy the requirements of the OMI law, you must still pass the “good faith” test which may ultimately be decided by a 12-person jury. Lastly, performing an OMI on anyone over 60 may preclude condominium conversion. Two-unit buildings are still eligible to convert, so keep that in mind as well.