This article was posted on Tuesday, Feb 01, 2022

San Francisco streetsSupervisor Dean Preston (D5) has introduced legislation “to require landlords pursuing certain types of evictions to first provide their tenants written notice and an opportunity to cure” within 10 days unless the eviction is based on an imminent health or safety issue or the non-payment of COVID-19 rental debt. 

San Francisco is a “just cause for eviction” jurisdiction, and as of 2019, the associated controls

apply to nearly all residential units in the city, regardless of date of construction or rent control status.

Two types of just-cause eviction:

  1. No-fault eviction: Tenant did nothing wrong but the landlord is justified in claiming possession. 
  2. Fault-based eviction: Tenant’s default or violation of the rental agreement justifies forfeiture of possession of the unit.

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Generally, both just causes for eviction require some kind of formal tenant notice. Both result in an unlawful detainer lawsuit if the tenant fails to vacate after due notice. Such lawsuits are governed by state statute, which dictates the timing of the prerequisite notices. And, while they also articulate the available bases for these notices, the California Supreme Court has long recognized local authority to impose more substantive requirements.

In Birkenfeld v. City of Berkeley, Berkeley could not require a landlord to get a “certificate of eviction” before serving an eviction notice. (This clearly interfered with procedure and timing.) However, the Court of Appeal since upheld an Oakland requirement that a tenant can only be evicted for willfully causing damage to their apartment if they fail, after written notice, to stop and repair it or enter an agreement to pay the cost of the damage. (This requirement clearly implicates timing, but the Court found that this regulated the substantive grounds for

eviction, and was therefore permissible.)

The Court of Appeal also upheld San Francisco’s “educator defense” to an owner move-in (OMI) eviction, where a no-fault eviction notice could not expire other than during summer break from the regular school term. This regulation was clearly focused on timing (where an otherwise valid eviction notice could only expire on specific dates on the calendar). But the court again found this substantive—designed to protect this specific class of persons from a no-

fault eviction for as long as they remained in this class (e.g., during the school term).

And, of course, last year a local regulation attempted to stop non-payment of rent evictions out-

right during the COVID-19 state of emergency. SPOSFI (among others) challenged this regulation on the basis of state law preemption. (Petitioners appealed after a trial court loss, but

the state Tenant Relief Act soon mooted the challenge, as the state is clearly permitted to change state procedural law.).

The viability of a local 10-day notice may depend on the specific reason for default. Post-pandemic, the city will have little basis for stretching a 3-day notice to pay rent or quit into a 13-day notice. On the other hand, perhaps it should require more than a landlord’s subjective decision that she has been denied reasonable access to the unit before deploying an eviction notice, and ten days could resolve such disputes without the need for unnecessary litigation.

Unsettled is the question of whether state law presumes certain fault-based evictions must be available to landlords. (Birkenfeld apparently assumed fault-based evictions would be available when it permitted cities to prevent no-fault terminations unless, e.g., an owner wanted to reside in the dwelling as their primary residence.) In that sense, it seems wholly improper to require a landlord to allow ten days for a tenant to “cure” a nuisance, when state law deems nuisance an uncurable forfeiture at the outset. We may need further guidance from the courts on this remaining nuance.

Flyers in Preston’s District

Recently, every home in Supervisor Preston’s district received this flyer:


  • If you are asked to move, don’t!  You have protections to stay in your home.
  • If you are behind on rent, don’t wait – apply for rental assistance.  Your landlord cannot evict you if you have a pending application for rent relief.
  • If you get an eviction notice, you can get a free attorney to help keep you in your home.

It goes on to advertise the Tenants’ Rights Boot-camp with Neighbors United and Supervisor Dean Preston to learn about the renter’s rights and get legal help.  The flyer makes no mention of any obligation for renters to pay rent owed or fulfill the other obligations of their rental agreement.


Justin A. Goodman, Esquire is an attorney with Zacks, Patterson & Freedman PC.  Reprinted with permission of the Small Property Owners of San Francisco Institute (SPOSFI) News.  For more information on becoming a member of SPOSFI or to send a tax-deductible donation, please visit their website at or call (415) 647-2419. 

Read more articles from the February edition of the AOA Magazine