Mayor, Supes Must Stop Suval-Type Evictions

Monday, January 12, 2009
Randy Shaw
BeyondChron.org

As Dean Preston notes above, had Susan Suval's trial judge simply required landlord Mark O'Flynn to fulfill his agreement to rent his property to low or moderate income persons until 2010 in exchange for getting $27,215 in public funds, Ms. Suval would not face eviction from her home of 33 years. But Suval's experience also raises questions about the wisdom of the city's lead paint and other rehab programs that hand out money to landlords. For example, why is the city giving money to landlords like O'Flynn, who are clearly not low-income and spent far more than $27,215 in two eviction trials against Suval? And why give any money to landlords to keep units "affordable" when they house long-term tenants already protected by rent control? And if the answer is, "so they won't invoke the Ellis Act," Suval's experience sure disproved that. Add the lack of monitoring of these landlord subsidies and it's clear that significant legislative changes are needed. Mayor Newsom must immediately suspend city programs that grant loans to landlords, and the Board of Supervisors must introduce legislation to guarantee that no landlord who receives city funds will be able to initiate eviction proceedings in violation of agreed-upon affordability restrictions. Here's how to achieve this guarantee.

San Francisco Superior Court Judge Harold Kahn's refusal to enforce Mark O'Flynn's lead abatement agreement with the City exposed serious defects in the city's loan agreements with landlords. Most troubling is that had Susan Suval not had access to the Tenderloin Housing Clinic's stellar attorney Raquel Fox, who put at least $100,000 of hours into the case, the city would not even know that O'Flynn violated his affordability agreement. Sadly, well-meaning San Francisco is giving money away to even wealthy landlords like Mark O'Flynn without provisions ensuring that the terms of the deal are met.

Landlord Subsidy Programs Are Fundamentally Flawed

Many are likely surprised to learn that San Francisco gives public money to landlords apparently regardless of their wealth (since O'Flynn is an attorney who spent six figures evicting Suval), and irrespective of the affordability of the housing they are getting the money to preserve.

I have no idea why San Francisco has a program that gives landlords money for maintaining units as "affordable" when the tenant in place already is covered by rent controls and eviction protections. The chief reason would be to prevent Ellis evictions, which the city agreement fails to do.

Otherwise, landlords like O'Flynn are getting taxpayer dollars for simply complying with rent control laws. And when they violate those laws, they get away with it.

No wonder O'Flynn's attorney gleefully spread the news about the Suval eviction to landlord attorney listserves: word is now out that landlords can evict tenants despite agreements with the city preventing such action.

This situation must be stopped immediately.

Criminal and Civil Penalties

First, legislation is needed to subject violators of city affordability agreements to criminal and civil penalties.

If landlord O'Flynn had known that his issuance of the Ellis notice to Susan Suval would subject him to a minimum six months in jail, I don't think he would have tried to evict her. Similarly, if he knew that his eviction effort would trigger treble damages in penalties, he would not have been likely to proceed.

Second, only low-income landlords should get city funds. If that's the current requirement, then the District Attorney should investigate how attorney/landlord O'Flynn - who owns a mansion with an ocean view - qualified as low-income.

Third, recipients of public funds, and their successors, must be prohibited from invoking the Ellis Act. It's incredible that San Francisco allowed O'Flynn to invoke the Ellis Act after taking city money. With public money in short supply, the city must limit its distribution to landlords who agree to permanently remain in the rental housing business.

And to prevent absurd rulings like that issued in Suval's case, the agreement must specify that the tenants are third-party beneficiaries of the agreement (Judge Kahn said Suval could not raise the agreement because it was not designed to benefit her, not disclosing who else it was intended to help.)

Urgent Action Needed

To avoid more Suval-type evictions, Mayor Newsom must immediately suspend the lead abatement, loan rehab, and other programs where landlords get city money in exchange for keeping rental units affordable.

Second, any number of Supervisors can work with the City Attorney's Office to draft legislation imposing steep criminal and civil penalties for landlords who violate city affordability restrictions. This legislation should consider the above proposals and others.

I would assume fast and unanimous Board passage. My experience with landlords is that the vast majority detest the type of behavior exhibited by O'Flynn, and they will not be rushing to defend the right of landlords to break agreements.

City and District Attorney Action

The City Attorney's office is reportedly planning on suing O'Flynn for violating his agreement and to recover the city's funds. The city should also consider seeking a preliminary injunction against Suval's eviction, given that Judge Kahn ruled that only the city - and not Suval - could enforce the agreement.

If this fails, the City Attorney's office should file an amicus brief supporting Suval's appeal.

The District Attorney could potentially prosecute O'Flynn for unfair business practices and even mail fraud, but the lack of criminal sanctions in the regulatory agreements might make this a tough case. But tenant advocates should expect the District Attorney's office to support of the legislation imposing new criminal penalties, and then to prosecute violators.

San Francisco Knows Better

San Francisco is not a city whose residents and workers quietly accept the eviction of a disabled tenant from her home of 33 years by a landlord who broke city law to accomplish it. We know better, and the Mayor and Supervisors will soon show that we can do better to safeguard tenants whose landlords have profited from city dollars.

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