The fires are now believed to be contained. The Governor has already sent crews to begin the debris cleaning. While parts, or maybe all of PCH, is now open to traffic, there are still concerns over the air quality in parts of Los Angeles like the Pacific Palisades (including Pacific Coast Highway and Malibu) and Altadena areas where the largest fires burned. In response, there is a lot of proposed and passed legislation in response to the fires. Some of the regulations are overreaching, and others are overdue. All property owners are encouraged to read through the news, and reach out to city council, board of supervisor, and state representative offices that are proposing sweeping measures.

A few matters have come across my desk from clients that have unfortunately lost their homes in the fires and are looking to move into a tenant occupied rental. In theory, that sounds very doable, however, there are strong tenant protections in most if not all parts of Los Angeles. Here are some frequently asked questions that may assist you in understanding the process to owner occupy in the aftermath of the fires.

• What are restrictions to owner occupy a property?

There are several overlapping laws when it comes to owner occupancy. There is the state law, which we know as the “Tenant Protection Act” or Assembly Bill 1482, that affords tenants in certain properties protections- you cannot evict a tenant without just cause after they have occupied the residential rental for 12 or more months.

At a local level, you have individual rent controls depending on the jurisdiction. Some of those jurisdictions limit your ability to owner occupy a property if the tenant has resided in the unit for a certain number of years and usually is either a 62+ or is disabled. In that case, you would not be able to evict that tenant. Further, at a local level there are some rules about last one in, first one out (I call this LIFO). If there are comparable units for you to occupy, the newest tenant, and most likely the highest paying tenant, would be the first one to go.

Also, on the topic of minimum duration, owners are often required to owner occupy the unit for a minimum length, usually between 1-3 years, depending on the jurisdiction. The main factors to consider are: type of rental (e.g., multifamily, condominium, single-family), if that rental falls under a rent control or just cause (tenant protection) eviction ordinance, if the tenant meets a criteria protecting them from being evicted, and if that specific unit is one you plan to live in for the minimum duration required.

• It is my property, can’t I demand a tenant move out if I need somewhere to live?

The short answer is…well, not really. Both state and local government have drastically curtailed a property owner’s ability to terminate tenancies since 2019. Year over year the rules become stricter. I’ve seen clients try to legitimately owner occupy their rentals and struggle through the eviction process when the tenant retains counsel and drags the case out or “gets” the landlord on a minor technicality.

You may have rights that afford you the option to owner occupy, but if the tenant does not vacate as required then your recourse is eviction. The most common reason tenants do not vacate is that they have nowhere to go or can’t find a comparable rental for the same price that they have been paying.

• Do I need to pay a tenant to move out, even though I’ve been displaced myself?

If you are owner occupying a rental that is subject to some form of eviction restriction, then you likely need to pay a relocation fee. Some properties may be exempt from just cause eviction restrictions that necessitate a relocation fee, but that heavily depends on the jurisdiction the property is located in.

• What happens if the tenant does not move out after I give notice?

If you give proper notice, and where applicable, comply with the local jurisdiction requirements, but the tenant does not vacate, you will need to file an eviction lawsuit (a/k/a, “unlawful detainer”). If you are in a rent-controlled jurisdiction, it would behoove you to find an eviction attorney familiar with your jurisdiction to assist you with the owner occupancy process. Some jurisdictions require applications be filed, application fees be paid, and even escrows be opened to hold and pay tenants relocation fees. Then, some jurisdictions may have rules about annually reporting to that jurisdiction that you are still owner occupying as required.

• What options do I have if the law says I can’t evict the tenant to owner occupy?

You can always offer the tenant a buyout/ cash for keys, which allows the option to reach a voluntary move out agreement with the tenant. Even if you do have the option to owner occupy, sometimes it makes more sense to reach a voluntary move out agreement with the tenant as a way to get the tenant to mutually agree to moving out.

Many times just being upfront, having the dialogue, and engaging in a meaningful conversation makes it more palatable to a tenant, rather than just getting a bunch of paperwork terminating their tenancy. Once they become aware of what rights the landlord has, they will likely engage in discussions to confirm the move out date and relocation funds. Plus, most buyouts reached result in the tenant vacating on time or sooner.

It is a tough position for some property owners as they navigate an unexpected loss of their home or the home of a family member. It is great to own real estate, but it also comes with a great deal of regulation. Tenants are afforded a great deal of rights, some of which may impede on your ability to owner occupy, or to do some on your own timeline. You want to make sure whatever decision or course you wish to take you do some with correct guidance and a game plan.

By Sasha Struthers, Esq., Struthers Legal, APC

If you are interested in learning more about tenant buyout agreements and wish to have a one-on-one session to go over your specific situation, you can sign up for a consultation with Sasha. Sasha Struthers is a California licensed Attorney and Real Estate Broker with a law practice that focuses on ‘Cash for Keys’/ tenant buyouts and government agency complaints such as REAP, CRD, and Orders to Comply. Sasha’s experience managing a 15-building real estate portfolio, including five apartments subject to LARSO has allowed her to help landlords strategically reposition their portfolios, maximize income, and reduce management stress. You can check out her law practice at www.struthers.legal.