Do we have any recourse for being evicted from an illegally-zoned unit?
February 25, 2013 1:37 PM   Subscribe

I and several other tenants across three different Live/Work loft properties in San Francisco were recently informed that the new building owner discovered discrepancies in the zoning of our building, and that we are essentially being evicted.

I've been living in a 1-BR Live/Work loft in San Francisco for 9 years without issue. The building was purchased by a new company a few months ago. We received a letter from them last week saying that during a pre-purchase inspection tour with the SF Planning Department, they discovered that the original owners had illegally subdivided many of the larger lofts into smaller 1-BR units (there were 36 units allowed in each building, they have about 45.)

And about 10 years ago, San Francisco put a moratorium on new Live/Work lofts, so because there is no way to make the units legal, they must be reverted back to larger units, and we have to leave.

My wife and I spoke to a volunteer (who is also an attorney) at the SF Tenant's Union, and he said that the building owners are required to the pay the tenants ~$5,100 each for relocation, and have the right to reoccupy the unit after remodeling for the same rental rate (plus a maximum increase of 1.9%.) That sounded pretty great to us! $10k and in a few months we get a bigger place for the same rent?

Apparently too good to be true: this morning we stopped by the SF Rent Board to ensure there were no loopholes. Unfortunately, the counselor there said that because our building was built after 1979 (!) that it was not governed by the Rent Board, and thereby IS exempt from the above ordinances (37.9C, 37.9A). Buildings built after 1979 are governed by State Law, which is minimally protective to tenants and offers no such provisions.

So unless there is some counter-loophole available, my question is (and I know YANAL) do the tenants of the three affected properties (I would imagine ~30-50 families) who are facing eviction have the basis for a civil class action lawsuit against the original building owners for not disclosing to us that the units we were renting from them were illegal, and could result in our incontestable eviction at any moment? And if so, would a lawsuit even be worthwhile given its expense and heartache?

As an aside, I found a letter from the San Francisco Planning Department through an online database about this property. It is dated December 2012 (a few months ago) and one of the lines reads:

"To the best of our knowledge, do our records show any unresolved zoning violations or complaints? Answer: No, our records do not show any violations or complaints." The letter is signed by Scott Sanchez, Zoning Administrator for the SF Planning Department.

It just seems curious to me that after 10 years and upon a recent review in December, they have had no record or knowledge of these quite obvious violations on record.

It certainly is a convenient method for the new building owners (Bennett Lofts / Essex Property) to evict everyone from the 1-BR units, make them larger, then rent them out to startups or wealthier families for 3x the rent, but because the building is not ~35 years old or older, the residents have no recourse whatsoever. Somehow I don't think a negative Yelp! review is going to be much of a burden on their conscience.
posted by wubbie to Law & Government (14 answers total)
Have you called Scott Sanchez the Zoning Administrator yet? Seems to me that you deserve some clarification at least.
posted by Think_Long at 1:45 PM on February 25, 2013

@Think_Long, I did trade voicemails with him. He responded back to me saying, "I just looked up your property and we do not have any 'complaints' on file about zoning issues. That doesn't mean there aren't any issues, we just don't have any on file."

He went on to say that if there is a zoning issue, it's likely due to illegally subdivided units, so this doesn't appear to be a rare circumstance.
posted by wubbie at 1:50 PM on February 25, 2013 [1 favorite]

IAAL, IANYL, TINLA. I do some landlord/tenant.

I don't see how you have a class action claim because I do not see how you have a claim.

What is it that you want? To not be evicted, ever? I don't see how that could happen. You would asking for an injunction to stay put, but it is not going to be in the interests of public policy for people to live in illegally zoned accommodations.

Also, the building is not your property. It is the property of the landlord. I have not read your lease, but I am confident that it does not extend into perpetuity. I imagine it gives you both termination rights, and I am quite confident that it allows for termination of your lease if your tenancy should become barred by law. You need you read your lease.

And, you say that these violations are "quite obvious". Ok, so if they were "quite obvious", why do you think you have a case based on a failure to disclose that which was "quite obvious"? This would be my question to you on cross-examination.
posted by Tanizaki at 2:10 PM on February 25, 2013 [1 favorite]

@Tanizaki, My question is related to having a basis for a suit against the original building owners (BST, LLC) who did not disclose to us that we were moving into an illegal unit, not the current building owners who are taking action on it (Bennett Lofts.)

We're not expecting tenancy in perpetuity, we would ask for relocation fees to offset the cost of a legal mistake the original owner committed, breaking the law, and not disclosing that information to us and putting us at risk without our knowledge.
posted by wubbie at 2:15 PM on February 25, 2013

Tenant/landlord laws are unique to the state and particularly the city. You need to consult with a local lawyer who specializes in these issues to see about what recourse you have, and you should present him with all of the details about your building.
posted by deanc at 2:16 PM on February 25, 2013

@deanc After meeting with the SF Rent Board and learning the buildings are exempt from its governance, it looks like we can't dispute the fact that we have to leave. That's going to happen regardless. The question is whether the original building owners, having broken the law and not disclosed the risk to us is liable for the cost of displacing so many families.
posted by wubbie at 2:19 PM on February 25, 2013

You might consider reaching out to your local Supervisor for assistance. 30-50 families facing eviction under these circumstances seems like the kind of thing they would want to know about, and may be able to point you towards some other assistance.
posted by ambrosia at 2:23 PM on February 25, 2013 [1 favorite]

My question is related to having a basis for a suit against the original building owners (BST, LLC) who did not disclose to us that we were moving into an illegal unit, not the current building owners who are taking action on it (Bennett Lofts.)

I think that case is a pretty definite loser. Maybe the buyer could have a claim against the seller, but I do not see how you would have standing. You are not a party to their contract or a third-party beneficiary.

And again, you say the problem was "quite obvious" but then complain about "putting us at risk without our knowledge." You have to pick one. You also need to read your lease.
posted by Tanizaki at 2:31 PM on February 25, 2013

Yes, reach out to your supe's office. They have staff who handle constituent services, and this large a number of evictions is a Big Deal.
posted by rtha at 2:31 PM on February 25, 2013

@Tanizaki The issue should have been "quite obvious" to the SF Planning Department when they reviewed the zoning permissions for our property, not the tenants. They could have counted the mailboxes in the lobby and seen that there were more residences than were zoned for.

There is no practical reason, however, for a typical renter to proactively research esoteric zoning laws for a particular apartment before moving in, so it's not fair to presume every (or ANY) tenant would have known that the building had this history and status of illegal standing, and decided to throw caution to the wind and rent there any way. I certainly would not have moved in.

We're also not attempting to state that we are a party to the contract between the new building owners and the original building owners, or are a beneficiary. We would attempt to state the original building owners broke the law, did not disclose the fact that the home we were about the move into nine years ago was illegal, and that we could be evicted at any time for no reason. The new building owners do not enter into this particular equation, it would strictly be between the tenants and original building owner who put the tenants at risk by not divulging this critical piece of information.

@ambrosia and @rtha Have contacted our district Supervisor, thanks.
posted by wubbie at 2:48 PM on February 25, 2013

[OP, no need to threadsit, feel free to take side conversation to MeMail.]
posted by jessamyn (staff) at 3:06 PM on February 25, 2013

You seem to have a very clear idea of the suit you're hoping to bring. I suggest that you get a lawyer, and run it by him/her; you will probably learn very quickly whether you have a case. I'm not clear what, exactly, you expect to get out of this question. We can't give you legal advice. "What are my chances with a lawsuit" is legal advice.
posted by Tomorrowful at 3:14 PM on February 25, 2013

Because your unit was built after June 1979, it is not covered by San Francisco rent control rules either (and most live/work spaces built before then aren't either, because they're treated as commercial rentals not part of the housing stock). Because of the age of your lease, it's likely that it is auto-renewing month-to-month. Your new landlord could, quite legally, raise your rent to $20,000 next month and force you to move out that way.

It certainly is a convenient method for the new building owners (Bennett Lofts / Essex Property) to evict everyone from the 1-BR units, make them larger, then rent them out to startups or wealthier families for 3x the rent, but because the building is not ~35 years old or older, the residents have no recourse whatsoever.

That is certainly convenient. It's also perfectly legal with virtually all live/work lofts in San Francisco, as well as virtually all properties built after 1979. Some tenants, generally elderly or disabled, have slightly more protection in some circumstances, but if this applied to you, I suspect you'd have mentioned it.

Any relocation fees you get are going to be based on the goodwill of your landlord. You're not legally entitled to a dime in this circumstance.
posted by toxic at 3:53 PM on February 25, 2013 [1 favorite]

What does your lease actually say about renewal/termination? IANAL, but if you have a lease with a longer term (say a year), you might not have to leave until the lease is up (barring the city condemning the building).

My impression is that the most likely response on the part of the city is to fine/punish the landlord for buildings that are irregular, not go after the tenants. So the new landlord is probably hoping that you and everyone else will pack up and leave quickly and quietly, but they may not be able to make you go faster than your lease says you have to.

But yeah, eventually you'll have to leave.

PS Things are almost certainly different in your jurisdiction, but where I live a landlord may not raise the rent when the building has code violations. If you have a similar provision on the books and the building has violations, you may be able to squeeze something out of the landlord by playing hardball.
posted by dendrochronologizer at 11:08 PM on February 25, 2013

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