Can I Be Evicted Just Because My Apartment’s An Illegal Unit?

Dave’s at the SF Appeal to answer your questions every Wednesday, so send them to him at tenant@sfappeal.com, here’s what to make sure to include in your letter.

I’m a protected tenant (65yrs old + 15 year resident) in an illegal unit. The building was recently sold and purchaser was aware of my protected tenant status. It appears that the strategy that is being used to get me out, is to have a building inspector come in to declare unit illegal and also possibly identifying some kitchen defects (venting). Owner has offered $5000 above relocation costs if I agree to get out without having inspector involved. The new owner would be reclaiming my unit for his own use without plans to use it as rental unit.

Can you please tell me what if any options I have.

First, you need to determine if indeed your unit is illegal. Often illegal units take the form of in-law units under single family dwellings. One can find many of them in the Richmond and the Sunset. There are three characteristics that indicate a unit may be illegal.

No separate PG&E bill. If you are sharing your gas and electric bill or the landlord is paying the utilities, the unit is not separately metered. Of course there are quite a few big buildings and complexes like the Golden Gateway that are not separately metered. But two and three unit buildings usually have separate meters.

Ceiling height. Generally the Uniform Building Code requires a minimum ceiling height of 7’6″. If the ceilings in your unit are lower and you share PG&E, there’s an even bigger chance the unit is illegal.

Secondary egress. If a unit has no secondary means of egress (a second door or window to use to escape from a fire), that’s another big indicator that the unit could be illegal. Think garden apartment at the back of a garage where the only entry and exit is through the garden. Units that only exit into a garage are usually illegal. Converted attics without a fire escape are often illegal units.

SF Assessor-Recorder’s website. In a typical scenario one will find that the Assessor lists the property as a single family house with one unit, even though there is an in-law in the building.

Finally, you can search the Online Permit and Complaint Tracking at the DBI website or if you cannot find any information there make a records request to view the permits and the certificates of occupancy or certificates of final completion at the DBI Office.

Now to your question. You can never be a protected tenant if you live in an illegal unit. Not possible. Because the unit is illegal, it should not be rented at all. You must dispel yourself of the notion that you will be able to stay if the landlord calls the DBI to violate the unit.

The “kitchen defects” to which you refer are not defects. If the DBI cites the unit as illegal, the landlord will be required to “remove the unit from the rental market.” That is accomplished by removing the kitchen, the factor that defines the apartment as a separate dwelling unit.

You should be aware that in order to be legally evicted, the landlord will have “to demolish or to otherwise permanently remove the rental unit from housing use” pursuant to Rent Ordinance section 37.9(a)(10). The landlord must obtain all the necessary permits, give you with a sixty-day notice to vacate and provide you $8,502.00 in statutory relocation benefits.

It is interesting that the landlord does not want to report the unit to DBI. He has not offered you much more than the statutory amount to vacate and he misrepresented (lied about) the relocation amount. Something is very fishy.

I flat out don’t believe the claim that the new owner wants to use the unit for himself. If that’s the case, why all the subterfuge? Forgive me my cynicism, sometimes I can confuse cheap and cheesy with diabolical. But the results are the same–the tenant gets screwed.

You should also understand that the landlord may be liable to you for civil damages. For example, if the landlord originally rented the unit to you and represented it as a legal unit, you may have damages for fraud and/or void contract that could, theoretically, entitle you to demand that the landlord refund all of the rent you paid for 15 years. I say theoretically because there are a whole bunch of factors that need to be evaluated for your specific case.

Go to the San Francisco Tenants Union to discuss your specific options. In the meantime don’t sign anything.

Crow & Rose's legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

7 Responses to Can I Be Evicted Just Because My Apartment’s An Illegal Unit?

  1. Hello I’m currently living in South Minneapolis. We’re renting a unit that is on the second floor. It’s actually a single family home which he then divided into a three family home. Before we moved in we were told there was only a grandma and her grandson. He says he told us about the family that lives in the attic, but I must of been confused and thought it was the same family. Anyways, there’s 5 people living in the attic. Then there’s 5 in my family on the 2nd level, and then the grandma and 2 of her grandsons. Once in a while the grandma rents one of her rooms out to strangers too. I’m explaining this in detail do that you can have a visual from my perspective. A few days ago I received a notice that my family had until May 31, 2017 to vancate the unit and I was surprised because we’ve been paying this guy $1000 a month and we’ve been here for over 2 years now. March and April’s rent was behind due to other important priorities but he was aware and said as long as it gets paid with the past due fees and all. So we’ve paid up everything including the fees except for $400 that just got paid today. And I’ve texted him and he was aware that everything would be paid before May. I believe that he is asking us to leave b because the city came for an inspection for bedbugs and roaches and found that the attic was being rented and I never heard what the fix was supposed to be because to what i know he’s completed his duties to comply with the city. Another reason why I held on the $400 was because there has been water leaking from the ceiling down to our kitchen which we’ve been telling him since we moved here. The last time all he did was patch it and it’s now still leaking from the very same spot. He wants rent paid on time every month bit doesn’t fix anything and he’s trying to say that his reason for asking us to vancate is because of $400.00? I believe that maybe he was told by the city that he has to get rid of one family and he purposely chooses us because the other 2 families are Cambodian and so they’re all from the same nationality. Before I moved in I’ve told him several times that if I decided to move in I’d like to live long term because I have 3 little kids that keep me so busy I just don’t enjoy moving and switching schools for them constantly. Now is it legal for him to do this or to evict me if I choose to stay?

  2. Have you ever seen the City order illegal dwellings or overbuilt secondary units torn out or brought in to compliance? We have a neighbor who put their house up for sale. The problem is everything that’s illegal is now available for all of us to see. Its great, what power does the City have when someone gets a permit to build a ADU for 800 square feet to 1200 sq ft and pushes it out to 2300 sq ft of living space?

  3. Please use some REAL case examples to demonstrate how the landlord could repay the tenant back 15 years of rent if it’s fraud or misrepresentation. This misconception gave many tenants false ‘hope’ that their rent will be returned. Good luck with that in real court. No judge is stupid enough to agree to that, unless that tenant is retarded and was tortured and lived in a cardboard box! Please refer to CA landlord tenant handbook for some REAL advice people! These ill advice will shit you out of court so fast so you wish you read some real law.

  4. If the unit is rented as a room in the house and the tenant shares the landlord’s kitchen, the tenant could be characterized as a lodger. When the Department of Building Inspection violates an illegal unit, the landlord cures the violation by removing the kitchen (stove) and paying the requisite fines. Most tenants aren’t willing to become a landlord’s lodger in this scenario–loss of privacy, independence, and, most importantly, loss of rent control protections.

  5. Out of curiosity, could the unit be rented to a “lodger” as simply a room in your existing house? Granted lodgers have less rights than a tenant, but wouldn’t it make it legal to rent to them as long as their separate kitchen was safely installed?

  6. This guy is a big hypocrite.

    1st he admits homeowners paid nearly a million dollars for their homes in SF (and being rob by the city and state in huge property tax, fees and bonds (loans governments will take out yearly on the homeowners’ houses and also pay for only by homeowners)). (Bonds are hard to understand. They are loans taken out by the government on properties the government does not own. Yet the government gets the $$, the homeowners get the bill.)

    Then he said “no matter what, tenants always loose”.
    Tenants loose what? They have invested nothing. They assume no responsibilities to the place, no liability, and they don’t even pay for their own water and garbage. They paid $2000 to live in a $1000000 house. Yeah, big lost there.

    The whole idea of rent control is just that- control. Greedy renters who wants their cake and eat it too don’t want to buy their own cakes, so they make a law to mandate others sell them cakes for less and less and guarantee good or else (w/o a care if it cause the bakery to go bankrupt). In other words, these rent control Nazi were never about equality but superiority. (They want control of your property. And like the trick with the government bonds, tenants get the houses and the homeowners get the bill and the liability.)

    And the biggest hypocrite of all is the government (state, county and city)
    Like smog check, they will have NOTHING to do with rent control. Somehow they are exempt like this rent control thing is too restrictive and abusive for government properties. But your property?

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