San Francisco’s residential and commercial eviction moratoria will lift Friday, just as a similar statewide ban expires. However, many residents and businesses will still be subject to certain protections.
Eligible residential tenants who apply for rent relief cannot be evicted for nonpayment of rent through the end of March. Small businesses can take advantage of a rent forbearance program that will protect them from eviction based on back rent for up to two years, depending on the size of the business.
There are, of course, many more details in these programs and other tenant protections for residents and businesses. It’s a confusing and rapidly evolving situation, with several eviction-related city ordinances passing just this week, on the eve of the moratorium’s end.
We break everything down for you below.
In June, the San Francisco Board of Supervisors passed an eviction moratorium for nonpayment of rent through the end of the year. However, that ordinance is preempted by state law, which prevents cities from enacting their own eviction moratoria between October and April.
Tenant activists and local leaders sought to find loopholes in state law, but were unsuccessful. It appears there is nothing The City can do to prevent nonpayment evictions from proceeding starting Friday.
Renters will still have some protections at their disposal. “The simplest way to understand what happens starting Oct. 1 is that as long as you have a pending rent relief application, you cannot be evicted for nonpayment of rent through March,” says Molly Goldberg, director of the Anti Displacement Coalition.
To legally file an eviction, landlords need to apply for, and be denied, rental assistance from the state, and then prove that their tenant has not yet filed for rental assistance themselves. If a tenant receives a nonpayment eviction notice, they have 15 days to open their own rent relief application, which shields them from eviction through the end of March. Both tenants and landlords can apply for rental assistance at housing.ca.gov, or by calling (833) 430 2122.
As part of their application, tenants must be able to prove that their inability to pay rent any month between April of 2020 and September of this year is due to pandemic-related hardship, and that their household makes less than 80% of the area median income. Tenants and landlords can also apply for utility assistance via the same portal.
Previously, tenants were required to pay 25% of rent owed during the pandemic to be eligible for rent relief and, by extension, further eviction protections. However, a recent change in state policy allows tenants who have not paid any rent during the pandemic to collect rental assistance and protect themselves from eviction through March. For those who have applied for and successfully received rent relief, back rent owed from April 2020 to September 2021 will be considered civil debt, and cannot be the basis for eviction.
City leaders are still pushing to strengthen tenant protections as much as possible. This week, the Board of Supervisors passed an ordinance that would reinstate the eviction moratorium for non-payment of rent through the end of the year if the state lifts the preemption. State action appears unlikely, however, as the legislature is out of session until January, and the previously passed eviction protections were a difficult legislative fight.
While there’s nothing it can do about non-payment evictions, The City can continue to ban certain “no fault” evictions, according to a determination by the City Attorney. This week the Board of Supervisors moved to do just that, setting in motion legislation that bans evictions for the purpose of construction, moving in a family member, or other “no fault” purposes through the end of the year. Ellis Act evictions, when an owner chooses to go out of the rental business, have never been subject to The City’s eviction bans, again due to state preemption.
“The landscape of tenant protections has changed since COVID, but this much remains the same: The best way for renters to avoid displacement is to know their rights,” Supervisor Dean Preston, who has authored many of The City’s eviction protections, said in a statement. “Right now, thousands of tenants have the right to rent relief as state eviction protections expire,” he said, adding that San Francisco tenants also have a right to legal counsel. “We fought hard for these programs, and now more than ever, they will help save people from displacement.”
Charley Goss, a spokesperson for the San Francisco Apartment Association, said in a statement that the group does not anticipate “any rush to evict, or any ‘eviction cliff’ next month,” adding, “the SFAA continues to encourage our membership to fully participate in the rental assistance program, and to approach communication with tenants related to issues of unpaid back rent from a place of compassion and empathy.”
The availability of rent relief funds could be a major variable going forward. The rent relief tracker from the San Francisco Public Press shows that as of Sept. 20, $148 million of San Francisco’s $152 million rent relief fund had been requested by tenants, and about $45 million had been distributed. In July, the Budget and Legislative Analyst Office estimated that somewhere between 13,000 and 33,000 tenants owed anywhere from $147 million to $355 million in back rent — a range that is surely higher four months on.
More funds are coming, but how much is unclear. Following a contentious debate, Mayor London Breed and the Board of Supervisors agreed to appropriate $32 million from last year’s Proposition I for rent relief in this year’s budget, and more funds could be forthcoming from that source, as well as from Proposition C, which passed in 2018. Goldberg says it’s possible the state could shift rent relief funds from other counties to higher-need counties like San Francisco.
Goldberg worries about the prospect of “self eviction,” where people leave their home when faced with an eviction that is not currently allowed, since the laws are so confusing. “Anytime anyone gets an eviction notice they should immediately reach out to the Eviction Defense Collaborative, or a tenant counseling organization to get help. And they should always take a notice seriously.”
San Francisco’s commercial eviction moratorium will also come to an end this month as a result of state preemption.
The commercial eviction protection landscape is more ad-hoc than the residential one, with many tenants seeking negotiated agreements with their landlord, based on their particular circumstances.
The main protection available to commercial tenants in The City is a tiered rent forbearance program that gives smaller businesses more time to pay back rent. Businesses with fewer than 10 full time employees will have two years to repay their rent, tenants with between 10 and 24 employees will have 18 months, and tenants with between 25 and 49 employees will have one year. On Monday, the Board of Supervisors passed an addendum to this law, allowing tenants with between 50 and 99 employees up to six months of rent forbearance. All businesses seeking rent forbearance must be able to document COVID-19 hardship.
Tenants cannot be evicted for nonpayment of back rent during the forbearance period. However, they can be evicted for nonpayment of current rent beginning in October. Tenants can also be evicted when their lease expires.
Julie Gilgoff, a staff attorney for the Lawyers’ Committee for Civil Rights of the San Francisco Bay Area, says many commercial tenants are seeking to come to negotiated agreements with their landlords. These agreements vary widely. Some tenants and landlords have created payment plans where the tenants pay their regular monthly rent, plus a percentage of back rent owed. Others have agreed to plans where the tenants pay a set percentage of their total sales while their business recovers. Oftentimes, these agreements include a certain amount of rent forgiveness. “Many landlords are being reasonable and just don’t expect a base amount when there’s still so much uncertainty,” Gilgoff says.
However, others are not being so accommodating. In her work negotiating agreements, Gilgoff found that “more often than not, the landlord is not willing to accept the offer of a tenant, who in my opinion, was offering their best shot of what they’re able to pay right now.”
The Office of Economic and Workforce Development, working with groups like Legal Services for Entrepreneurs and the San Francisco Bar Association, is providing assistance to tenants with landlord negotiations and mediations. The OEWD also has a commercial eviction resource page, that explains current policy and provides links to various city grant programs.
The Board of Supervisors, led by Supervisor Ahsha Safai, is in the process of passing another commercial rent relief program that would provide grants between $25,000 and $35,000 to as many as 1,000 small businesses, although it’s unclear how it would be funded. The grants would be contingent on a certain amount of rent forgiveness, and landlords extending tenants’ leases by three years. Safai estimates that commercial tenants owe as much as $600 million in back rent.
For now, commercial tenants can also take advantage of a July ordinance providing a path to rent forgiveness for businesses that were fully shut down by government order, including personal services like hair and nail salons, gyms, and entertainment venues. Businesses that were able to operate in any capacity, like restaurants serving takeout, as well as businesses that were allowed to open but chose not to, are ineligible. That law has been challenged by the San Francisco Apartment Association and the San Francisco Small Property Owners Institute, and should be heard in Superior Court soon.
“(T)he City’s ordinance unfairly seeks to relieve tenants of their contractual obligations without compensating property owners at all,” said Cody Harris, an attorney for the Apartment Association, in a statement.
Gilgoff sees things differently. “I’ve experienced a lot of clients who didn’t give themselves a salary for most of the pandemic, just trying to keep their business afloat. And if they say they’re unable to pay most of the back rent, I think that’s the truth.”