Greenstein & McDonald | Frequent Questions

What constitutes harassment by my landlord?
Can you explain the law regarding owner move-ins?
What is the eviction process?

What constitutes harassment by my landlord?
In San Francisco, Berkeley and Oakland tenants have strong rights under local rent ordinances. A landlord does not have the right to ask a tenant to move out or to make life so uncomfortable that tenants decide to move out. A landlord also cannot lock a tenant out of their unit or intentionally shut off the utilities for an improper purpose (See California Civil Code Section 789.3). For lock-outs and utility shut-offs a tenant is entitled to $100 per day damages.

Landlords also have to give you a notice to enter, at least 24 hours prior to entry (See California Civil Code Section 1954). A landlord may only enter for the following reasons pursuant to Section 1954: 1) in an emergency; 2) to make necessary or agree upon repairs; 3) to show the unit to prospective tenants, purchasers, workers/contractors or other for an inspection pursuant to return of a tenant's security deposit; 4) when the tenant has surrendered or abandoned the property; and 5) pursuant to court order.

A landlord cannot forcibly enter your unit and they cannot touch your personal property without your consent. They cannot remove your possessions. Only sheriffs deputies can do that and only after a legal eviction through the court system (see below). A landlord may not physically touch you or threaten to do you physical harm. For violations of Civil Code Section 1940.2, a tenant can get up to $2000 per act.

There is also a state law regarding retaliation, California Civil Code Section 1942.5, which makes it illegal for a landlord to attempt to evict a tenant for an assertion of a legal right such as a complaint to the rent board, to the city inspector's office or to the landlord. Section 1942.5 is the retaliation defense, but it can also be used as the basis for a retaliation lawsuit against a landlord. For each retaliatory act by a landlord the tenant is potentially entitled to $1000 and attorneys fees.

Many landlords in rent controlled jurisdictions like San Francisco, Berkeley and Oakland hate the fact that some tenants pay low rent compared to what they could get at market rate rent. Some greedy and unethical landlords initiate a harassment campaign to make life so miserable for their tenants that they sometimes feel like they have to move out. Tenants have many options to stop their landlords in these situations.

If any threats are made, even if they are veiled threats, make a police report. Keep a journal of each incident or interaction with your landlord. Each time there is an incident make a police report and send a letter to your landlord or the management company. Making a paper trail is really important, especially for future litigation should your landlord attempt to evict you or should you sue your landlord. If the harassment becomes so severe that it dramatically interferes with your quiet use and enjoyment of your home, then consider filing for a restraining order, which is an injunction to stop the landlords harassing conduct.

We can assist you in addressing any form of harassment. We have sued many landlords for harassment, we have defended evictions based on false pretenses (we call it a "pretext eviction") and we have handled restraining orders against landlords.

Can you explain the law regarding owner move-ins?
If a tenant has not done anything that breaches the lease, one of the only ways a landlord can evict a tenant is via an owner move-in eviction (OMI). OMI evictions have very complex laws and they are different in the three Bay Area cities that have them. We have handled a large number of these type of cases in San Francisco, Berkeley and Oakland, so if you are being evicted by your owner and they are claiming an owner or relative move-in, call us or some eviction service. In addition, if you have already moved out pursuant to an owner move-in notice and you believe that the owner or relative has not actually moved in, also contact us. We employ private investigators in many of our cases to ascertain if there has been a fraudulent owner move-in.

What is the eviction process?
A landlord must first serve some type of notice to quit before they can actually evict you. It is a myth that a landlord will have the sheriff's office come and throw you out after the notice expires. In San Francisco, the notice to quit must be filed at the SF Rent Board. The notice to quit in SF must state the just cause for eviction if the tenancy falls under the SF Rent Ordinance. Some of the exceptions are if the tenancy is in a cooperative, or the tenant lives with the landlord or it's a boarding house. See the definitions section of the SF Rent Ordinance (Go to the SF Rent Board website at http://www.sfgov.org/site/rentboard). A landlord in a city other than San Francisco, Berkeley and Oakland can evict a tenant for any reason without stating the reason in the notice to quit, as long as it is not for an illegal purpose such as discrimination (i.e. race) or retaliation. Many notices give a tenant an opportunity to cure some breach in their agreement (i.e. 3 day notice to pay rent or quit). Some notices, such as illegal activity in the unit, do not give the tenant an opportunity to cure a breach of the lease.

If the notice expires and the tenant remains in the unit and has not cured the breach, then a landlord must file an Unlawful Detainer (eviction lawsuit) in the Superior Court at the County courthouse. That is the only way to legally evict a tenant. The landlord is then required to have the tenant served with the lawsuit. The lawsuit cannot be served by the landlord himself. Some criminal landlords will claim that the tenant has been served when the tenant has not been served with legal papers, which is also known as "sewer service." If you had a notice to quit and it has been more than 5 days since it expired, call our office or some eviction service (See Links on this website) immediately!

Once the tenant has been served then they have five days to file a response. A response can be an answer, in which a tenant admits or denies everything in the lawsuit and raises any affirmative defenses (i.e. retaliation). The tenant may also file a motion such as a demurrer or a motion to strike or a motion to quash. It would be very difficult for a tenant representing oneself to prepare one of these motions, so make sure you have a law firm or eviction service prepare a motion if you are going to file one.

In most cases, at some point the tenant will need to file an Answer. In San Francisco, a Demand For A Jury Trial is usually filed with the Answer. In other jurisdictions, the Jury Demand is filed later. Subsequently, the landlord sets the case for trial. It is almost always expedient to request a jury trial because a jury is more likely to decide to allow a tenant to remain in their home then a judge. Jury trials also take more time which makes the process more expensive for the landlord and will improve the tenant's leverage for a good settlement. If a Jury Demand is filed then a Settlement Conference with a judge or a lawyer acting as a judge will be scheduled. Most eviction cases settle at this point, especially in the tenant is represented by counsel. If the tenant decides to move out it is not uncommon for the tenant to get months to move without paying back-rent or without having to pay rent up through the date they vacate their home. Sometimes the landlord's grounds for eviction consist of fraud or there are many defective conditions in the unit, so the tenants' counsel are able to negotiate to keep the tenant in their home.

Finally, if the case cannot be settled then the landlord either dismisses the case (very common when the tenant is represented by counsel), and the tenant gets to remain in their home, or the case goes to trial. When there is a trial, the judge or jury will decide if the tenant will be evicted. If the defense is based on the home being uninhabitable and the trier of fact agrees, then the rent may be reduced. Should the rent be reduced by some percentage, for example, by 50%, then the tenant would have 5 days after the judgment is entered to pay 50% of the back-rent up through the date trial began. If the tenant pays all of the back rent ordered by the court within 5 days, then that tenant can remain in their home. If they don't pay, then the landlord can get judgment entered in their favor, and then take the judgment with a writ of execution to the sheriffs' office and the tenant will be removed by sheriffs within about 2 weeks, depending on the jurisdiction.