San Diego City Council’s Proposed Tenant Protection Ordinance Puts Landlord Interests Over Tenants

Do not trust Mayor Todd Gloria and City Council President Sean Elo-Rivera! The proposed ‘Tenant Protection’ Ordinance (“TPO”) drafted by their offices is designed to trepidatiously manage the greed of landlords, rather than standing firmly on the side of tenants. If passed, this poorly written ordinance will give landlords new reasons to evict tenants and will result in gaping loopholes that landlords will undoubtedly exploit.

San Diego’s operative tenant protection ordinance (Tenants Right to Know Ordinance) in Ch. 9, Div. 7 of San Diego’s Municipal Code, provides that landlords cannot evict tenants for “Substantial Remodel,” only “Correction of Violations.” While our members have repeatedly been told by City Council and Legal Aid Society of San Diego that under the operative ordinance, tenants can be evicted under “Correction of Violations” for reasons that have nothing to do with health and safety or code violations, this has not been our members’ experience who have secured competent legal counsel. However, legal representation is expensive and unavailable to most tenants. As such, it is essential the ordinance be amended to provide clarity on the procedures to which the landlord must strictly comply in order to notice an eviction on the grounds of “Correction of Violations”. Those procedures have now been included under §98.0704(b)(3) of the draft Tenant Protection Ordinance. However, San Diego City Council has had nearly 20 years to clarify these procedures, which were proposed back in 2004. That the draft TPO in 2023 is less protective on this matter than what was brought before City Council 2004 is shameful, but not surprising. City governments care about expanding their tax bases, not their services. This is why, in the face of displacement and replacement of the poor for profit, our local government does nothing. We can’t wait for these people to give us power, we must derive it collectively from our solidarity with other tenants.

The Mayor and City Council President have also given landlords new grounds to evict tenants under §98.0704(b)(4) – one they never had before: “Substantial Remodel,” aka “renovictions.” Many of our members who have fended off repeat eviction attempts because the proposed work was not remedial in nature, will now be at risk of eviction if the draft Tenant Protection Ordinance passes. While Correction of Violations concerns the health and safety of tenants and rehabilitation of units to bring them up to code, evictions under Substantial Remodel are by definition, elective. The only purpose is to increase the value of a landlord’s property. This is why so many cities, including but not limited to East Palo Alto, Berkeley, Milpitas, Sacramento, Santa Cruz, Oakland, Glendale, Santa Rosa, Pasadena, Petaluma, and Richmond have outlawed Substantial Remodel evictions not necessary to bring housing up to code. Furthermore, those cities that do allow renovictions for Substantial Remodel,  guarantee tenants the right to return at the same rent, temporary relocation assistance paid for by the landlord, and/or relocation to a comparable unit (e.g. Los Angeles, Beverly Hills, & Burbank). The introduction of grounds for eviction so the landlord can remodel, regardless how substantial the remodel is, is pro-landlord, pro-gentrification, and anti-tenant. Tearing apart communities because homes lack curb appeal is NOT a tenant protection, it’s a win for speculators and developers. Mr. Elo-Rivera – you say you care about black and brown people? – then stop the rich from needlessly bulldozing our homes!

In what appears to be an attempt to placate tenants without disturbing City Council’s ongoing alliance with developers and the Southern California Apartment Association, the Mayor and City Council President have proposed an insulting ‘remedy’ for communities being displaced via renovictions – we will call it “the right to submit an application.” Under §98.0706(d) of the draft Tenant Protection Ordinance, if a residential rental property is offered for rent or lease for residential purposes within five years of the date the tenant was evicted, the landlord must first offer to lease it to the tenant who was evicted. However, the landlord has the “right to screen the tenant using industry-accepted methods.” Essentially, the tenant shall be notified that they get to submit an application to rent their home again, but not at the same rent and with no guarantee they will be selected. Right to return at the same rent is essential to prevent displacement. Otherwise landlords are incentivized to allow the buildings to fall into disrepair. 

The sections regarding “relocation assistance” are poorly written and come with their own loopholes. Under §98.0706(b-c) of the draft Tenant Protection Ordinance, landlords can “elect” between providing either relocation payment or rent waiver. However, as written, seniors, for example, would only receive the 3 months of relocation assistance if the landlord elects to provide direct payment rather than a rent waiver. If a tenant received a 30-day notice pursuant Civ. Code § 1946.1, and the landlord elected to waive rent rather than provide direct payment, would the tenant still receive 2 months of relocation assistance? It would appear not, as there is no language in the ordinance requiring that the notice period be extended in accordance with the relocation assistance to which they are entitled when the landlord elects to provide a rent waiver. We can’t count on the courts to interpret this liberally in tenants’ favor and for landlords to not take advantage of this loophole. 

The Ellis Act is a deeply reactionary, pro-landlord, republican-drafted law which allows landlords to evict tenants by claiming they are withdrawing from the rental market. However, the Ellis Act also authorizes municipalities to implement detailed tenant protections to prevent landlord abuse. Our members and tenant advocacy organizations including PANA and ACCE have repeatedly demanded City Council implement all allowable protections of the Ellis Act. However, based on the draft Tenant Protection Ordinance, the Mayor and City Council President are taking the position that the meager tenant protections authorized by the Ellis Act go too far and should not be implemented in San Diego. In fact, they are attempting to roll back the protections we currently have! The San Diego Municipal Code §98.0730(h) currently reads: “Withdrawal of Residential Rental Structure from the Rental Market. The landlord intends to withdraw all rental-units in all buildings or structures on a parcel of land from the rental market.” However, §98.0704(b)(2) of the draft TPO now reads “The landlord seeks to recover possession to withdraw the residential rental property from the rental market.” Based on the definition of residential rental property in the draft TPO, a landlord can now evict select units under this “just cause.” Furthermore, while the draft TPO adopts portions of the recently passed TPO in Chula Vista, it failed to incorporate any of the remedies available to Chula Vista tenants who have been fraudulently displaced due to false claims of withdrawal. This is an embarrassment to the democratic-majority City Council in San Diego posturing as progressives. 

The state-wide Tenant Protection Act of 2019  (“TPA”) created a massive loophole for landlords to claim the withdrawal of single units from the rental market. That the TPA was preempted by our municipal code was a godsend when landlords targeted naturally occurring affordable units by serving notices on long-term tenants only. The Mayor and City Council President’s proposed changes substantially weaken our protections in this regard. Further, unlike the other grounds for eviction, landlords can evoke “withdrawal from the rental market” in bad faith and for pretextual reasons, so long as they have a bona fide intent to withdraw the property. Unless the tenant controverts the landlord’s bona fide intent in an unlawful detainer action, which most tenants are unlikely to do given their relative lack of power and resources, the landlord need not provide a reason for withdrawal. Further, the draft Tenant Protection Ordinance still fails to state how long the unit must be removed from the rental market. This loophole would make useless all the procedures a landlord must strictly comply with under §98.0704(b)(1), (3) & (4), as landlords will notice all evictions under §98.0704(b)(2).

Furthermore it seems clear that the Mayor and Council President do not understand the fundamental imbalance of power between tenants and landlords – landlords have money, tenants do not. An ordinance that proposes so called protections but does not require any sort of governmental check on landlord misconduct is ineffectual. Given the City’s apparent lack of interest in standing with tenants against landlords, it is abundantly clear that tenants must organize themselves to fight for their own interests. Power cannot be given to us with lousy reforms, workshopped with developers and Apartment Association lackeys, but must be seized collectively through direct struggle against our landlords. 

We are not interested in an ordinance that negotiates the terms of our defeat with pathetic and ambiguous ‘rights’ to assist us in relocating to the streets or to another city where we are deprived of our community. We are interested in an ordinance that keeps us housed and in our communities! For these reasons, among others, Tenant Councils of San Diego adamantly opposes the draft Tenant Protection Ordinance. Our position is not about perfection over progress. Rather, as tenants who are currently facing displacement or have recently defended against evictions, we are telling you that this draft TPO is a farce and puts us at greater risk of displacement. We will not be moved! 

If you’d like to some tenant protection ordinances that actually protect tenants and that the Mayor and City Council President could have pulled from rather than reinventing the wheel in the shape of a triangle, see below:

• Berkeley
• Beverly Hills
• Burbank
• Oakland
• City of West Hollywood
• East Palo Alto
• Glendale
• Hayward
• Milpitas
• Mountain View
• Pasadena
• Petaluma
• Pomona
• Richmond
• Sacramento
• Santa Cruz
• Santa Rosa

Stronger tenant protections are desperately needed to prevent landlords from exploiting a system already in their favor. But without tenant organization, we will forever be stuck within that system. When we have no laws to protect us as tenants, we must still have each other. We encourage all tenants to oppose these weak reforms, organize with their neighbors against their landlord, and join Tenant Councils of San Diego, where we all can stand together as unionized tenants.