S.F. Daily Journal - Jun 23, 2004
S.F. Property Law Overturned
A 1st DCA panel says an ordinance limiting tenancies in common violates the constitutional privacy guarantee.
By Tyler Cunningham
Daily Journal Staff Writer
SAN FRANCISCO - A San Francisco ordinance designed to limit tenancies in common violates the California Constitution's privacy guarantee, a state appeal court ruled Tuesday.
The ordinance violates the privacy guarantee because it gives TIC co-owners access rights to all units on the property, the court found. As a result, the ordinance would force people living in certain multi-unit buildings to share living space.
"No reasonable person would consent to having neighbors or other unwanted persons wandering through one's home or occupying it," wrote Justice Lawrence T. Stevens.
He was joined by Justices Barbara J.R. Jones and Linda M. Gemello in Tom v. CCSF, A101950.
The decision is a victory for all middle-income families who aspire to buy property in San Francisco, said Andrew Zacks, a San Francisco lawyer who represented the property owners challenging the law.
The ruling is legally interesting, Zacks said, because it enforces civil rights in the property arena.
"We usually deal with economic rights," he said. "The idea of using more traditional civil liberties to protect property interests makes the case somewhat unique. It is somewhat of a first in that regard.
"This is obviously a very good sign for people who want to buy and own a TIC. It gives people confidence that there's a viable and affordable form of home ownership available for them."
A TIC is an ownership structure, popular with first-time homebuyers, that allows people to jointly buy a building. Often, the tenants in common agree among themselves to give each owner an exclusive right to occupy a particular unit within the property.
In an effort to stem the rising number of evictions caused by TIC conversions, and to preserve the number of rental properties available in San Francisco, the city passed an ordinance in 2001 limiting the number of TICs created each year. The ordinance essentially placed TICs under the same cap the city imposes on condominiums.
The ordinance required that parties to a TIC have access to all units on the property - that is, they cannot agree that each tenant has an exclusive right to occupy his or her unit.
Noting that the home has traditionally received the highest protection against privacy intrusions, the 1st District Court of Appeal panel said that the ordinance leads to an "extreme privacy violation" by forcing homeowners to share their living space with others who might be unwelcome.
The decision upholds a ruling by San Francisco Superior Court Judge A. James Robertson II.
Deputy City Attorney Andrew Schwartz said he disagrees with the decision, but was unable to say whether the city would petition the California Supreme Court for review.
"The court finds a constitutional right to own a TIC with an exclusive right of occupancy," he said. "There is no fundamental right to that type of housing."
