Wednesday, May 18, 2016

New Category Of Tenants In SF - Educators

[02-14-2018 update: Court of appeals reversed the judgment today];
[Cal. Sup. Ct. denied review on April 25, 2018; Rent Ordinance reinstated back the "educators" ordinance's language on May 15, 2018, see the press release here].

The rules of equality never meant to apply equally to the rule-makers themselves. This had often been the case since the times immemorial, and so observed by many, including Oliver Wendell Holmes.*  And in the context of our times and our local legislature on the issue of housing, examples of unequal treatment of classes of individuals in California are aplenty. Yet at least, for most of the times, you can see a public policy behind the legislatively created exceptions. Not all the times, but often. For a counter-example, when the reasoning is not immediately apparent, see CC § 51.2 and related sections, where the series of statutes provided a right to create senior-only housing (technically, a discrimination by age, albeit for a laudable purpose). In most of those statutes, one county (Riverside) is expressly excluded from these rules, see §§ 51.2(c), 51.3(j), 51.4(c), 51.10(d). I am sure there was some valid reason for that, but I don't know what it is.

Our county of San Francisco has its own rich history of laws treating us differently from elsewhere, especially in the field of housing regulations. Discriminating or differentiating the application of laws to individuals based on their age, disability, or familial status were for many years recognized applications of public policy of supporting those groups, by offering them additional protections, including such protections from evictions. Until now, however, it was more or less applied with care, providing a right for these individuals to claim a "protected" status as a tenant, in the concept of owner- or relative-move-in evictions, and there was a counter-balance for similarly disadvantaged landlords, by recognizing that the moving-in person could be in a similar position of being old or having children.**

Yet now we have a new and unprecedented piece of legislation, discriminating individuals by the source of income: Ordinance 55-16 created a new category, an "Educator," and it will widely apply to almost all non-fault kinds of evictions. Not only it offers no counter-balancing exceptions, but it takes away the ones existed before. I have a feeling that this legislative gem will be soon tested in courts, but for now it is the law, coming into effect on May 23, 2016. I had a chance to speculate on it, when it was introduced, let's now look more closely at what's coming.

Ordinance 55-16 deals with the family status-related protection in two ways: it enlarges the previously existing right to claim a protected status for a tenant household with children, and it creates a brand new type of such status claimants--the Educators.

Who is an Educator, you may wonder. You may, perhaps, imagine a school teacher in this context, but why speculate, here is the definition:

"any person who works at a school in San Francisco as an employee or independent contractor of the school or of the governing body that has jurisdiction over the school, including, without limitation, all teachers, classroom aides, administrators, administrative staff, counselors, social workers, psychologists, school nurses, speech pathologists, custodians, security guards, cafeteria workers, community relations specialists, child welfare and attendance liaisons, and learning support consultants." S.F. Admin. Code, Section 37.9(j)(4), 2d paragraph, my emphasis.

They could just write "any person" and be done with it, why waste ink and paper on additional wording. Adding the "independent contractor" into the definition, and then adding "without limitation" to the listed kinds of satellite professions of who may be eligible, creates a loophole for anyone, anyone who can fog a mirror that is, to claim to be an educator.

If this is not wide enough, consider what the term "school" means: ""School" means any state-licensed child care center, state-licensed family day care, and/or any public, private, or parochial institution that provides educational instruction for students in any or all of the grades from kindergarten through twelfth grade."  Sec. 37.9(j)(4), 4th paragraph.

In other words, if you are not already an "Educator," you have 30 days from the date of service of the notice on you to organize a private "institution" (size does not matter) to give any kind of "instruction" to any kid from kindergarten to 12th grade, to claim your protected status. Since you can be an independent contractor, the fact of reality of your "institution" is hard to verify. And it can be one student, say a nephew, whom you take on the weekends to the zoo. It does not have to be your own child, because you would then be able to claim the other protection anyway, but a nephew, who does not live with you, why not. Or a neighbor's kid.

The other class of eligible tenants to claim this protection (familial or custodial relationship with a child) remained largely the same as it had existed under the older version of 37.9(j). It is the "relationship," which got enlarged, because now, it is not only the family relationship of immediate family with a child (of course, including an uncle, an aunt, and their spouses and domestic partners), but also those of ... an educator too!

If you somehow failed to be an educator yourself, you can be an uncle of an educator! Now this covers everyone, and their uncles and aunts too, literally.

Why a janitor who works at any educational entity, worth more protection than a janitor from, say, a police department, or a hospital? Is their job less important? They most likely don't get vastly different pay or benefits. This question highlights two problems with the "educator" protection - selective discrimination by the source of income (where do you work), and the overbreadth and vagueness of the coverage, including not only the actual educators, but everyone under the sun.

What else seems wrong? How about the selection of causes where it applies. It does apply to temporary evictions for the repairs (37.9(a)(11)), but does not apply for evictions for seismic work under Section 34B (per the revised 37.9(j)(2)). It means that, unless it is a seismic upgrade, a landlord, who needs to perform any other kind of repairs in the house, has to wait until the end of a school year (!!) to get the tenants relocated and perform work, even if the repairs are of a shorter kind, ones for up to 20 days period. For anything non-seismic tenants can choose to stay and force the landlord to watch his building deteriorate until the next summer break. Imagine if the problem happened in September, the owner will have to wait the whole school year before the repairs can commence.

Next issue with the new ordinance is elimination of the counter-measures. Previously, a landlord moving in with own children would get a right to relocate tenants with children. This rule is no more, and an educator-landlord can't evict an educator-tenant at any time sooner that during the school break. That evicting educator could be from the same school, and be no less important for the kids' happiness and learning, but who cares.

There are no exceptions, save for the instances when there is seismic upgrade work. The instances when this new rule does not apply are: (1) when the tenant resided less than 12 months; or (2) the notice expires during the school break. (Sec. 37.9(j)(1)). For anything else you can either pray, or wait, or challenge this new statute in court, which I have a feeling will happen soon enough.

[on August 31, 2016, these proposed amendments were struck down (link)];
[02-14-2018 update: Court of appeals reversed the judgment];
[Cal. Sup. Ct. denied review on April 25, 2018; Rent Ordinance reinstated back the "educators" ordinance's language on May 15, 2018, see the press release here].

* "As to the violation of equal rights which is charged, it may be replied that the dogma of equality makes an equation between individuals only, not between an individual and the community. No society has ever admitted that it could not sacrifice individual welfare to its own existence." O.W. Holmes, The Common Law, Lecture 2, p.43.

** Section 37.9(a)(8) in the version preceding Ord. 55-16 provided for exemptions for elderly evictors or those with children to overcome otherwise protected status of a tenant with similar conditions. The age-related exemption is still there, but the family-status exemption is now gone.

If you are concerned about your rights and obligations in a landlord-tenant relationship, make your first step toward taking control over the circumstances, and call my office at (415) 987-7000. I will be glad to assist in guiding you through the jungle. The only thing you can't afford is to stay put and uninformed. My office provides a confidential assessment of your particular scenario, free of charge, and I will share with you the results of the analysis along with my thoughts on available solutions.

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