Though dozens of Ellis Act evictions occur each year in San Francisco, 1049 Market St. is a unique situation and the zoning of the building has been disputed for years.

In 1991, the top floor of the six-floor building was permitted for live-work lofts, a type of commercial zoning specifically for tenants who operate a business out of their residence. The first through fifth floors of the building are permitted exclusively for commercial use and were never approved for residential use.

Nonetheless, many of the units on those floors have been rented to residential tenants since the 1990s. Many of the units have lofted beds and small kitchenettes, and most tenants share communal bathrooms on each floor.

In 2013, the landlord issued eviction notices to 39 units on those first five floors, citing plans to demolish the residential units and rebuild the spaces for commercial use. Those tenants have been in legal gridlock with the landlord ever since, and final decisions about the legality of the eviction are still pending in court.

The seven sixth-floor units were spared eviction notices because of their live-work zoning. Johnson and her neighbor, Tony Breaux, are the only residential tenants remaining on the sixth floor.

As other sixth-floor tenants have moved out, the landlord has begun renovating the empty units and renting them to businesses. Currently, unit 602 is rented by PritchardPeck Lighting.

Though Johnson and Breaux were not involved in the 2013 eviction, they have sparred separately with the landlord.

In 2014, Breaux filed a petition with the San Francisco Rent Board against John Gall, one of the owners of 1049 Market St. LLC, after his monthly rent was increased by nearly 13 percent, from $970 to $1,095.

The board ruled in Breaux’s favor, stating that no certificate of occupancy had ever been issued for the sixth floor of the building, making his unit illegal and subject to rent control laws. Gall presented a certificate of occupancy to the court in his appeal in 2014, indicating the certificate should be backdated to 1991 — when the units first became live-work lofts. That case is still in litigation.

Preparing for Eviction

Johnson, who operates her own personal training business and has been in the building since 2005, plans to fight the eviction but has already started packing up her apartment. She says she doesn’t plan to leave on her June 23 eviction date, but she wants to be prepared either way.

“If this is a live-work loft situation, can you even Ellis Act?” Johnson asked.

Andrew Zacks, the landlord’s attorney, concedes there is some ambiguity around live-work units. But he says he believes his client is complying with the Ellis Act, since Johnson and Breaux’s units are residences.

Zacks said if the sixth-floor tenants fight the eviction by citing their live-work commercial zoning, it would then open the tenants up to even more legal troubles.

“If they are commercial month-to-month tenants, they are not subject to rent control,” Zacks said. “They can be evicted with 30 days' notice.”

Steve Collier, the tenants’ attorney, did not comment on the live-work status of the sixth-floor units.

Breaux, who will turn 79 this year, must vacate his unit next February because of an Ellis Act clause that extends the eviction period for seniors and people with disabilities. He's lived in the loft, decorated with massive wood carvings and an assortment of potted and hanging plants, since 2003. Though he is retired, he still works as a sculptor and musician.

“I won’t go,” Breaux said. “We’ll fight this down to the bone.”

Eviction, he says, is like a death sentence. He says it would be nearly impossible to find another rental unit in the city for his current $970 rent.

Zacks says his client intends to pay the tenants of all 23 units relocation fees, in compliance with San Francisco law. The required relocation payment is $5,555 per person, with an additional $3,703 for each elderly or disabled tenant and each household with a minor child.

The median monthly rent for a one-bedroom apartment in San Francisco is $3,590. The $5,555 relocation payment would cover less than two months of that.

Warehousing People in Illegal Units

Zacks places the blame for the situation at 1049 Market St. squarely on the city.

He says the city, cracking down on various code violations in the building, told his client they would either have to bring the building up to code for residential units or convert all residential units back to office space. The cost of bringing the building up to code, according to Zacks, would be too much for his client to reasonably spend.

Zacks said the city is relying on landlords to maintain below-market-rate units, while the city itself has not done nearly enough to address the regional housing crisis.

“We need to find folks like this housing where the burden is not on my clients to provide it,” Zacks said. “Is [the housing crisis] really that bad that we will warehouse people in illegal units?”

But Breaux and Johnson have both been in their units for more than 10 years and consider 1049 Market St. their home. Despite the units not being up to residential code, they say the units meet all of their needs.