Second Letter to RPD Commission by auweia


									                                           LAw OFFICES OF

                                  ROBERT DE VRIES
                                  785 MARKET STREET , SUITE    I I 50
                                     SAN FRANCISCO ,   CA 94 I 03

                                         (4 I 5) 546-5 100

March 2, 2011                                                    VIA MESSENGER

San Francisco Recreation and Park Commissioners
501 Stanyan Street
San Francisco, CA 94117

Re: Lease of Haight Ashbury Neighborhood Council at
    Kezar Triangle

Dear Honorable Commissioners:

This is a follow-up to my letter to you of December 2, 2010 , A copy of that letter is enclosed
in the event it has been misplaced.

In my December 2, 2010 letter, I provided legal authority for the proposition which I do not
believe is subject to reasonable dispute- that HANC holds possession of the premises under
a year-to-year lease that expires at midnight on June 30, 2011. Despite my citation of
statutory and case law authority, the only response was a letter sent directly to my client by
Mr. Ginsburg. That letter stated that the tenancy was a 90 day tenancy, not an annual tenancy.
Unfortunately neither Mr. Ginsburg (or perhaps the city attorney that may have ghostwritten
the letter for him) saw fit to provide any legal authority contrary to that which I provided
which would lead to the conclusion that HANC has anything but an annual tenancy. I assume
that if Mr. Ginsburg had legal authority for his position he would have stated it.

However, there is another problem with this eviction attempt. I could not raise it in my first
letter because the problem had not yet occurred. The notice sent by Mr. Ginsburg was a legal

Even assuming the assertion ofMr. Ginsburg in his December 3, 2010 letter was correct, that
"[tJhe Lease is a quarterly holdover, consistent wi th the rent payments", his letter of December
3, 2010 would have been ineffective to terminate a "quarterly holdover tenancy consistent
\-vith the rent payments " as of March 4, 20 11 as it purports to do.

The quarterly rental payments are due at the beginning of each calendar quarter-January 1,
April 1, July 1, and October 1. Therefore, underMr. Ginsburg's own logic (quarterly
holdover, consistent with the rent payments), each quarterly term would terminate on March
31 , June 30, September 30, and December 31 respectively.

However, Mr. Ginsburg's letter of December 3, 20l0, does not purport to terminate the
tenancy at the completion of any of the claimed quarterly terms. Instead, it purports to
terminate the tenancy on March 4, 2011, which under his own logic would be 27 day short
of the end of the quarterly term. The law does not allow the termination of a quarterly
tenancy in the middle of the term, but only at the end of the term.

Civil Code section 1946 provides as follows:

      A hiring of real property, for a term not specified by the parties, is deemed to
      be renewed as stated in Section 1945, at the end of the term implied by law
      unless one of the parties gives written notice to the other of his intention to
      terminate the same, at least as long before the expiration thereof as the tenn of
      the hiring itself, not exceeding 30 days.

While the above clause in section 1946 states the general rule on termination of periodic
tenancies, there is an exception for month-to-month tenancies (and no one is claiming that
HANC holds under a month-to-month tenancy):

      provided, however, that as to tenancies from month to month either of the
      parties may terminate the same by giving at least 30 days' written notice
      thereof at any time and the rent shall be due and payable to and including the
      date of termination.

The proposition that a periodic tenancy of more than one month can only be terminated as
of the end of the term is supported by the case law:

      Defendants contend, however, that, in any event, under the provisions of
      section 1946, the October 10, 1945, notice to quit terminated the lease, if one
      existed, one month thereafter. That would be true only if the hiring here were
      "for a term not specified." The section also provides that the notice shall be
      given "at least as long before the expiration thereof as the term of the hiring
      itself, not exceeding one month." Here the tenn of the hiring was impliedly for
      one year. That means that on September 1, 1945, the term was impliedly
      renewed for one year. To have prevented the renewal of the term, under
      section 1946, the notice to quit would have had to be given on August 1, 1945.
      The October notice could not terminate the year tenancy already in existence.
       Aaker v. Smith, 87 Cal. App. 2d 36, 42-43 (Cal. App. 1948)

In this instance, under Mr. Ginsburg ' s quarterly tenancy theory, the quarterly tenancy would
have been renewed effecti ve January 1, 2011 through March 31, 2011 , as there was no notice
terminating the quarterly tenancy before the January 1, 2011 renewal. Nothing in the law
allowed the involuntary early termination of that renewed tenancy as of March 4, 2011 as Mr.
Ginsburg has purported to do.

Mr. Ginsburg apparently made an understandable mistake that would be fairly easy for a non-
lawyer to make-he was probably aware that the law allows a month-to-month tenancy to be
terminated at any time based upon a 30 day notice, but was unaware that this provision does
not apply to periodic tenancies/or periods in excess 0/30 days. I am certain the Superior
Court would not share Mr. Ginsburg's ignorance of the law.

Assuming that the Conunission does not wish to reverse Mr. Ginsburg's decision to evict
BANC, proceeding based upon Mr. Ginsburg's letter of December 3, 2010 would be
particularly ill-advised and a waste of resources . BANC has the defense set forth in my
December 2, 2010 letter (that it holds under a yearly tenancy which ends at midnight on June
30,2011.) Additionally, even ifRPD genuinely believes that HANC holds under a qual1erly
tenancy as stated by Mr. Ginsburg, the December 3, 2010 letter that purports to terminate that
tenancy on March 4, 2011 in the midst of one of the quarterly terms is invalid.

A private litigant, in the face of these two valid defenses, would do the math, pick up its
marbles, and go home. One would hope that RPD, utilizing taxpayer funds and resources,
would do the same.

Very truly yours,


cc: Philip Ginsburg
    Virginia Dario Elizondo
                                          LAw OFFICES OF

                                 ROBERT DE VRIES
                                785   M A RKET STREET , SUITEI I 50
                                   SAN FRANCISCO ,   CA 94 I 03

                                         (4 I 5 ) 546-5 I 00

December 2, 2010                                                VIA MESSENGER

San Francisco Recreation and Park Commissioners
501 Stanyan Street
San Francisco, CA 94117

Re: Lease of Haight Ashbury Neighborhood Council at
    Kezar Triangle

Dear Honorable Commissioners:

I represent The Haight Ashbury Neighborhood Council (referred to in this letter as "HANC")
regarding its lease at the Kezar Triangle.

I was surprised to read in the memo to the Commission from Marvin Yee dated November 29,
2010 that "[a]ccording to the City Attorney and pursuant to state law, the Department may
issue a notice to vacate with thirty-day written advance notice. II

While I am not privy to advice given by the City Attorney and therefore do not know if the
City Attorney did make any such statement, I do know for a fact that HANC cannot be forced
to leave based upon the service of a 30 day notice. In fact, BANC holds possession of the
property rentedfrom the City under the terms ofa lease that expires on June 30,2011.

I suspect that ifRPD is indeed under the impression that HANC may be evicted with a 30 day
notice, RPD may be laboring under the misconception that HANC is a month-to-month tenant.
This misconception is understandable. In most cases, when a fixed term lease ends, the law
provides that the tenant then becomes a month-to-month tenant. This is the case because most
tenants pay their rent on a monthly basis.

However, in a lease such as this, where the rent is payable on a quarterly basis, if a tenant
holds over after the end of the term the tenant is not deemed to be a month-to-month tenant.
Instead, when a tenant holds over after the end of a fixed term lease and the rent is payable
quarterly or annually, the lease is automatically renewed for the same term as the lease term
that ended, not to exceed one year.
San Francisco Recreation and Park Commissioners
December 2, 2010
Page Number 2

This rule is set forth in California Civil Code section 1945, which provides as follows:

       If a lessee of real property remains in possession thereof after the expiration
       of the hiring, and the lessor accepts rent from him, the parties are presumed
       to have renewed the hiring on the same terms and for the same time, not
       exceeding one month when the rent is payable monthly, nor in any case one
       year [italics added.]

The fact that Civil Code section 1945 means what it says has been recognized by the courts:

       A tenancy from year to year is created where a tenant holds over after the
       expiration of a former lease for one or more years and pays rent. Miller v.
       Stults (1956) 143 Cal. App. 2d 592, 599.

To walk through the analysis step-by-step:

•      BANC originally took possession of the premises under the terms of a five-year fixed
       term lease that began on July 1, 1996, and ended on June 30, 2001.

•      HANC remained in the premises after the initial five-year term of the lease expired,
       and continued to pay rent to the City on a quarterly basis.

•      Under Civil Code section 1945 , when BANC remained in possession after the
       expiration of the fixed term lease in 1996, the lease was renewed under the same
       terms, for a year (the lease did not renew for a five-year term because Civil Code
       section 1945 provides a one-year maximum renewal when the rent is paid other than
       monthly, or one year when the rent is payable monthly.)

•      This process repeated each year-each year's renewal term expired on June 30 of the
       following year. BANC then remained in possession and paid rent, thereby renewing
       the lease for another one-year term.

Obviously I am writing as an advocate for my client, but I do not believe that the above facts
and law are subject to reasonable dispute.

In light of the fact that HANC's lease of the premises does not expire until the end of June
2011, it is readily apparent that the timetable contained in the Yee memo makes no sense-
San Francisco Recreation and Park Commissioners
December 2, 2010
Page Number 3

construction and other preparations in the leased property cannot begin until (if and when)
HANC vacates the space that it is currently leasing. HANC cannot be forced to vacate the
space it occupies until the expiration of its lease at the end of June, and the rendering of a
judgment against it in an unlawful detainer action should HANC choose to fight the
eviction l .

HANC has no intention of vacating the premises any earlier than legally required. HANC
is also not willing to allow disruptive construction work or other activities to go forward on
the leased property while it is in possession.

Very truly yours,


It is not the purpose of this letter to discuss the vitality ofHANC's defenses to any unlawful
detainer action that RPD might choose to file after the expiration ofHANC ' s current lease.
However, should HANC elect to not voluntarily move at the expiration of its lease term and
defend an unlawful detainer action, the Commission should not assume that the result would
be favorable to RPD.

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