Superior Court judge strikes down San Francisco’s ten-day barrier to serving a notice to pay rent or quit

Novel San Francisco Eviction Defense Violates State Procedural Law

The San Francisco Apartment Association and the Small Property Owners of San Francisco Institute – two leading associations in property rights education and advocacy – claimed a victory in defeating San Francisco’s latest intrusion into the rights of housing providers.

The Law: This February, San Francisco amended the rent ordinance to require that a landlord serve a “ten-day notice to cure” tenant defaults, before they could avail themselves of state law unlawful detainer procedures by serving an eviction notice (and particularly, the “three-day notice to pay rent or quit”). Under the new regulation, housing providers would need to wait until the middle of the month before proceeding to collect rent or recover possession.

The Case: Zacks & Freedman , PC challenged the subject ordinance on the basis of state law preemption in San Francisco Apartment Association, et al. v. City and County of San Francisco, Case No. CPF-22-517718. Specifically, the state unlawful detainer statutes require (in most cases) that the landlord serve a defaulting tenant with a three-day notice to cure breaches or vacate before the landlord can file an eviction lawsuit. ZF argued that, while local governments may create substantive eviction defenses, state procedure does not permit the City to interfere with the timing of the eviction remedy.

The Decision: On July 22, 2022, the Honorable Charles F. Haines of San Francisco Superior Court granted the challenge in part. While the court found itself bound by a decision upholding an Oakland ordinance that elongated the notice period for certain defaults, the payment of rent “is the most fundamental of all aspects of a tenancy” – what the tenant exchanges for occupancy.

The decision is surely welcome for San Francisco’s housing providers, who have endured two years of eviction moratoria and “15-day notices to pay rent or quit”. (Of course, the state has the authority to extend timing.) As life begins to return to normal, the decision marks a bright line where housing providers may pursue procedural remedies, unfettered by local obstruction.

ZF founder Andrew Zacks argued the matter, with the support of managing shareholder Scott A. Freedman. Of the ruling, Freedman said, “though well-meaning, the San Francisco Board of Supervisors has been unchecked in their enactment of unbalanced, and radically pro-tenant ordinances throughout the pandemic. As the state of the law was beginning to return to normal, San Francisco intruded into the timing of housing providers’ state law remedies. It has long been established that cities can create substantive eviction defenses, but that local law is preempted when it interferes with state law procedures. Sometimes the distinction can be shadowy and difficult to draw in practice, but we’re pleased to see the court get this one right.”

Charley Goss, the Government and Community Affairs Manager for the SFAA, added, “core to SFAA’s mission is education and support for the rental housing community so that our members operate ethically and fairly. It can be frustrating to have to sue our own city just to restore balance to the law. Our members appreciate that they can continue to expect and enforce the basic bargain of a tenancy – the timely payment of rent.”

The president of SPOSFI, Noni Richen, welcomed the news. “It can be difficult for San Francisco’s smaller housing providers to conform to the many, nuanced regulations in this industry, and it’s all the more disheartening when their remedies for a tenant default are illusory or attenuated. This isn’t a ‘pro-landlord’ ruling, but merely one that affirms these remedies, and we’re thankful for that.”

Zacks & Freedman, PC is a law firm dedicated to advocating for the rights of property owners. With experience and knowledge in rent control issues, zoning, permitting, transactional disputes and other real estate matters, Zacks & Freedman, PC has successfully advocated its clients’ positions before local administrative tribunals and at all levels of the State and Federal courts, including the U.S. Supreme Court. For more information, call (415) 956-8100 or visit

Click here to read the Court’s decision.

Categories: 2022 News