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In a tentative ruling that could have far-reaching implications, a San Francisco judge has found the city’s restrictions on creating tenancies-in-common violate privacy and due process provisions of the California Constitution. Superior Court Judge A. James Robertson II issued his tentative order without comment Friday. He is scheduled to hold a hearing on it today. Attorneys for the plaintiffs, Small Property Owners of San Francisco, said they will urge him to adopt and finalize the order. City lawyers will ask him to reconsider. Lead plaintiffs’ attorney Andrew Zacks said Monday the tentative ruling could knock out the city’s attempt to regulate the conversion of apartments into tenancies-in-common. Deputy City Attorney Andrew Schwartz said it is uncertain what the judge’s ruling means until he clarifies it and makes it final. “As far as what the judge’s ruling is, it’s not clear to me,” said Schwartz, who has battled Zacks and small property owners in court for a year. In July 2001, the city enacted an ordinance limiting the number of apartment conversions to tenancies-in-common — or TICs — each year. A TIC is a homeowner device in which several people agree to buy a building, with each owner given the exclusive right to occupy a particular unit. However, the city views the unrestricted conversion of apartments into TICs as reducing the number of available residential rental units. “TIC evictions cause severe hardship to tenants least able to afford housing in San Francisco,” Schwartz told the judge in court papers. The suit by the Small Property Owners of San Francisco and other plaintiffs, Tom v. City and County of San Francisco, 323591, argues that their rights were violated by the restrictions. The ordinance forbids owners of three- to six-unit buildings from granting exclusive occupancy to owners. Zacks says this denies owners equal protection, since tenants in such buildings may still be given exclusive occupancy rights. “The ordinance violates the right to privacy by prohibiting co-owners of property from granting each other the same equal right of occupancy that landlords grant to tenants,” he said in court papers. Schwartz disputed the notion that the TIC ordinance “remotely affected” anyone’s right to privacy in a TIC unit. “Petitioners are free to live with whom they choose,” he wrote. The deputy city attorney also argued that plaintiffs’ constitutional concerns are “purely hypothetical.”

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