Under the San José Rent Ordinance, landlords are permitted to evict all tenants from a rental property and remove the property from the residential rental housing market. San José Municipal Code § 17.23.1100. Despite being a lawful just cause for eviction under the San José Rent Ordinance’s just cause for eviction protections provisions, the landlord must follow strict rules to perform and after performing an Ellis Act eviction. As with San José Owner Move-In Evictions, a landlord’s failure to comply with the San José Rent Ordinance may result in the San José tenant having a claim for wrongful eviction.

What is an Ellis Act Eviction?

California law allows landlords to remove a residential rental property from the housing market permanently. California Government Code § 7060, et seq. The Ellis Act permits landlords to evict all tenants from the residential building to remove the property from the rental market simultaneously. The Ellis Act is generally used to change a building’s use into condominiums, prospective demolitions, or the landlord’s personal use.

What Types of Units Does the San José Ellis Act Ordinance Cover?

The San José Rent Ordinance’s Ellis Act provisions only cover specific rental units. The San José Rent Ordinance covers rental units in any guesthouse, or unit building in which a certificate of occupancy was issued on or before September 7, 1979. San José Municipal Code § 17.23.1120(I). The City of San José Rent Ordinance’s Ellis Act Ordinance does not cover single-family homes, duplexes, condominiums, townhomes, in-law units/ADUs, hotels, boarding houses rented to transient guests for fewer than 30 days, nonprofit homes for seniors, school dormitories, rental units owned and operated by any government agency, and properties in unincorporated areas of Santa Clara County.

How Many Days’ Notice Are San José Tenants Entitled to Receive When the Landlord Performs an Ellis Act Eviction?

To perform a valid Ellis Act Eviction under the San José Rent Ordinance, San José tenants must receive at least one-hundred-and-twenty (120) days’ notice prior to the date the landlord intends to take the building off of the residential rental market. San José Municipal Code § 17.23.1160.

If at least one San José tenant in a unit receiving an Ellis Act termination of tenancy notice is either sixty-two years old, disabled (as defined by FEHA), terminally ill, or catastrophically ill, and has resided in the unit for at least one year prior to the date of delivery to the city of the notice of the intent to withdraw, then the landlord must provide notice of and allow the tenant to exercise an option to extend the tenancy for one year from the date of delivery to the city of the notice of intent to withdraw. San José Rent Ordinance § 17.23.1160. To exercise this option, the qualifying tenant must give written notice to the owner of the extension within sixty days of the landlord’s delivery to the city of the notice of intent to withdraw. Following receipt of the tenant’s notice of extension, the landlord must provide notice of the extension of the tenancy to the City of San José.

Where a San José tenant has a custodial or family relationship of a minor who has resided in the unit for at least a year before the date the landlord delivered the notice of intent to withdraw to the City of San José and is enrolled in a K-12 school, then the landlord must provide notice of and allow the tenants in that unit to exercise an option to extend their tenancy through the current school year, plus an additional sixty days from the completion of the school year. To exercise this option, the tenant must give written notice to the landlord of the extension within sixty days of the landlord delivering to the City of San José the notice of intent to withdraw. Following receipt of the tenant’s notice of extension, the landlord must provide notice of the extension of the tenancy to the City of San José.

Can A Master Tenant Invoke the Ellis Act on Subtenants?

No, a master tenant may not invoke the Ellis Act on subtenants. San José Municipal Code § 17.23.1120(F).

Can the Landlord Evict Only Certain Units in a Building Through an Ellis Act Eviction?

No, the landlord must evict every unit in the building to perform a valid Ellis Act eviction. San José Municipal Code § 17.23.1130(F).

What Requirements Must A Landlord Comply to Perform an Ellis Act Eviction?

The landlord must comply with several requirements to perform an Ellis Act eviction under the San José Rent Ordinance. First, the landlord must pay a fee to the City of San José before initiating the Ellis Act eviction, including serving any termination of tenancy notice on the San José tenant. Where the landlord fails to pay the required fee before serving the termination of tenancy notice on the tenant, the notice is invalid.

After paying the required fee to the City of San José, the landlord must file a Notice of Intent to Withdraw form with the City of San José.

Next, the landlord must provide each San José tenant with a notice of tenant rights, on a form published by the City of San José. This form notifies San José tenants of their right to extend their tenancy during the Ellis Act notice period. Additionally, this form may include the City of San José’s contact information and the following statement:

“In accordance with the State’s Ellis Act, the City of San José requires landlords to allow certain tenants to extend their tenancy beyond the minimum one hundred twenty (120) day notice period when a landlord intends to withdraw the dwelling unit from the residential rental market. The elderly, disabled, and households with a child enrolled in kindergarten through 12th grade may be eligible for extended tenancies if requested.”

Within ten days of filing the notice of intent to withdraw with the City of San José or at least one day prior to sale or transfer of any property that includes rental units the landlord intends to perform an Ellis Act upon, the landlord must record a memorandum, on a City of San José published form, encumbering the property according to the Ellis Act. The form must summarize the landlord’s, and any successor owner’s, obligations, including the right to return afforded to all San José tenants that will vacate due to the Ellis Act eviction at their prior rent-controlled rent. Additionally, the form must encumber the property for ten years from the Ellis Act withdrawal effective date. The landlord must also deliver a conformed copy of the recorded form to the City of San José within sixty days of delivery of the notice of intent to withdraw.

Further, the San José tenant is entitled to copies of all notices and forms upon request.

How Much Relocation Money are San José Tenants Entitled for Ellis Act Evictions?

The San José Rent Ordinance provides for relocation assistance when a landlord invokes the Ellis Act to remove all of the San José tenants from the building. The San José Rent Ordinance requires the landlord to provide relocation in the following amount:

All San José tenants that receive an Ellis Act termination of tenancy notice are entitled to recover base assistance. Please note that the amounts are paid to the household, and not the individual San José tenants residing in the household.

Certain San José tenants may recover additional qualified assistance. A San José tenant may qualify for additional relocation assistance by meeting at least one of the following criteria:
• Low Income Households;
• Households with at least one senior (62 or older) San José tenant;
• Households with at least one disabled tenant, as defined by FEHA;
• Households where one tenant is terminally ill or catastrophically ill, as determined by a physician; and,
• Households with at least one minor child occupying the unit currently enrolled in a K-12 school.

For a tenant to obtain qualified assistance, the tenant household must complete a tenant qualification form and provide a copy of the completed form to their landlord and the City of San José.

How and When Are San José Tenants Entitled to Obtain Their Relocation Assistance for an Ellis Act Eviction?

The San José landlord must deposit into an escrow account when the landlord serves the Ellis Act termination of tenancy notice on the San José tenants. Where the San José tenant is entitled to additional relocation assistance, the landlord must deposit the additional assistance into the escrow account as soon as the tenant completes all necessary forms, and the City of San José approves the request.

The San José tenant may immediately obtain the base amount of relocation assistance from the escrow account. Additionally, the San José tenant may obtain the qualified assistance from the escrow account on or before the earlier of:
1. The first business day after the San José tenant gives a thirty-day notice to the owner under California Civil Code section 1946.1; or,
2. The last day of the tenancy for which the San José tenant pays rent.

The San José tenant’s right to relocation assistance does not impact their right to recover their security deposit, with interest, less lawful itemized deductions under California Civil Code section 1950.5.

Rather Than Receive Relocation Assistance for the Ellis Act Eviction, Can San José Tenants Move Into Another Unit Owned by the Landlord?

Yes, the San José Rent Ordinance contemplates a landlord’s ability to offer an alternative, comparable rent-controlled unit to a San José tenant facing an Ellis Act eviction. San José Municipal Code § 17.23.1151. Where a landlord invokes the Ellis Act, they may offer to relocate a San José tenant to another rent-controlled unit before delivering the first location payment into the escrow account.

To accept a landlord’s offer to relocate to an alternative, comparable rent-controlled unit, all tenants must accept in writing. Should the San José tenant agree to move into the alternative, comparable rent-controlled unit, the new lease agreement must be substantially similar to prior lease, including ensuring that the San José tenant’s rent remains the same. Where the San José tenant signs a new written lease for the alternative, comparable rent-controlled unit before inspecting the new unit, the new lease is contingent upon the San José tenant inspecting the unit and finding it acceptable. The San José tenant may revoke acceptance of the alternative, comparable unit following their inspection of the unit. Should the San José tenant choose to revoke their acceptance of the alternative, comparable unit, the San José tenant’s household shall be entitled to receive all additional relocation assistance to which they are entitled, as explained below. Where the San José tenant accepts the offer to relocate into an alternative, comparable unit, they will not be entitled to any relocation assistance for an Ellis Act eviction, except for a special assistance payment to cover moving costs.

When Do San José Tenants Have a Right to Return to their Former Rental Units Following an Ellis Act Eviction?

Where a San José tenant must move out of their unit due to an Ellis Act eviction, they maintain a five-year right to return to the unit at their former rent-controlled rent if their former landlord returns the unit to the residential rental market during that time. San José Municipal Code § 17.23.1170. To become eligible for the right to return, the San José tenant must provide the former landlord with their current mailing address and email address to receive such notice of a right to return.

Even if the San José tenant declines to exercise their right to return to their former unit, the landlord must offer the unit for rent at the tenant’s former rent-controlled rental rate, including any permissible rent increases under the San José Rent Ordinance, where the landlord returns the unit to the residential rental market within five years of the Ellis Act eviction. San José Municipal Code § 17.23.1180. If the landlord demolishes a building containing units that became vacant due to an Ellis Act eviction and offers them for rent within five years of the Ellis Act eviction, a certain number of the newly constructed rental units may be subject to the San José Rent Ordinance’s rent control limitations.

Where a San José tenant is forced to move out of their unit due to an Ellis Act eviction and more than five years but less than ten years have elapsed since the Ellis Act eviction, the San José tenant is entitled to receive 120 days written notice of the owners’ intent to return the unit to the rental market.

What Can San José Tenants Do When Their Landlord Abuses the Ellis Act?

San José tenants facing landlord Ellis Act abuse may contact the City of San José to file a complaint. Where landlord violations are willful, the City Attorney may act to impose a criminal penalty against the landlord and/or a six-month jail sentence. San José Municipal Code § 17.23.1190. Under certain circumstances, the City of San José may seek an injunction to prevent displacement.

Alternatively, San José tenants may bring a civil claim against their landlord for violating the Ellis Act. When forced from their home due to landlord Ellis Act-related fraud, the San José tenant may recover damages including actual damages, exemplary damages, and punitive damages.

To discuss the San José Tenant Protection Act, San José Ellis Act Evictions, San José Owner Move-In Evictions and Relative Move-In Evictions, or California Rent Control (AB 1482), contact Astanehe Law, including by phone or email to speak with a tenant attorney.