Boshernitsan v. Bach

 Facts: The owners of a residential duplex rent out one unit of the building to a tenant and live in the other. The owners transfer title to the building into an intervivos trust naming themselves as trustees and also settlors and beneficiaries of the trust. The owners serve the tenant a notice terminating their tenancy so the unit may be occupied by a family member based on a family move-in agreement of the city’s rent control ordinance. The local rent control ordinance defines a landlord as a natural person or group of natural persons who hold a recorded fee interest in the property. The tenant remains in possession on expiration of the notice and the owners file an unlawful detainer (UD) action to evict them.

Claim: The tenant claims the owners of the residential duplex do not qualify as a landlord under the city’s family move-in ordinance and cannot evict them since the property is vested in a trust which is not a natural person.

Counterclaim: The owners claim the UD action is valid since they are trustees, settlors and beneficiaries of their revocable intervivos trust as a title holding arrangement and thus the legal owner of the property.

Holding: A California appeals court holds the owners of the residential duplex are landlords with the right to evict the tenant since natural persons acting as trustees of a revocable intervivos trust and are also the trust’s settlors and beneficiaries qualify as a landlord under the family move-in ordinance. [Boshernitsan v. Bach (2021) 61 CA5th 883]

Editor’s Note —The court of appeals determined that a trustee who is also the settlor and beneficiary of a revocable living trust nullifies any tenants’ concerns regarding the ramifications of interpreting the term “landlord”.