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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 nullity. 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, ROBERT DE VRIES 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, ROBERT DE VRIES 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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