Since I began practicing as a tenant lawyer, I have always been appalled that a landlord could evict a tenant for “illegal” subletting (adding a roommate without permission). I maintain that it’s not a landlord’s business to approve of a subtenant as long as the original tenant keeps paying the rent and doesn’t burn down the building.

“It doesn’t make sense to give the landlord a say in picking your roommate. The original tenant or tenants are still responsible for paying the rent. The landlord retains all of his remedies to collect and to repossess the unit if the rent isn’t paid. Yet, in San Francisco the landlord is allowed to evaluate a potential roommate’s credit score; old bankruptcies; past unlawful detainers and anything else that could be argued to be relevant. The law isn’t clear on what is relevant.”

Over the years I’ve answered many questions from tenants asking about adding a roommate, like this one from 2014:

“I recently came across this post from 2011. I’m facing a similar situation (though haven’t gotten to the stage of asking my landlord yet, just want to know my rights before I start the process). I live in a 2-bedroom, rent-controlled apartment, and I’m the only one on the lease. My lease forbids subletting and says I need the landlord’s permission to add occupants.

 

My boyfriend would like to move in with me so we can both save on rent. I’ve seen references to a law passed in 2009 that you can add roommates even if the lease forbids it. How does that law factor into the response you gave in the article above?

 

The 2009 law, referenced in the Los Angeles Times article linked to your question, would have barred landlords from increasing rent above 33% of a tenant’s income and allowed tenants to add roommates other than family members to help pay rent. It was passed by the San Francisco Board of Supervisors on June 23, 2009. The law was later vetoed by Mayor Gavin Newsom, the rapacious, oily narcissist and shill for the real estate industry, who could occasionally squeeze out a crocodile tear for tenants. Now Lt. Governor, this “liberal” Democrat personifies Democrats everywhere. If you feel smoke blowing up your ass, it’s because your house is burning down.”

I explained the current law, hoping that the tenant had sublet the unit in the past with the landlord’s knowledge and consent. But essentially I had to conclude, given the state of the law at the time, “If your boyfriend isn’t replacing a former roommate, you might be better off marrying him.” Embarrassing, especially in San Francisco in 2014!

In 2015, the most important legislation for tenants adding a roommate in San Francisco came in the form of the “Kim Amendments.”

Supervisor Jane Kim, currently running for mayor, authored and championed the Kim Amendments or Rent Ordinance 2.0, (I would enthusiastically support Ms. Kim’s candidacy, if she renounced her membership in the Democrat Party, but that’s the topic for a separate discussion.)

Essentially the Kim Amendments amended Rent Ordinance § 37.9(a)(2) to include that a landlord cannot evict a tenant, despite provisions in a lease stating otherwise, for  adding a roommate to a rental unit so long as the maximum number of occupants does not exceed the lessor of two persons in a studio unit, three persons in a one-bedroom unit, four persons in a two-bedroom unit, six persons in a three-bedroom unit, or eight persons in a four-bedroom unit; or the maximum number permitted in the unit under state law and/or other local codes such as the Building, Fire, Housing, and Planning Codes. Because the Building, Housing, Fire and Planning Codes use a person per square foot calculation, they are often more lenient. One can almost always safely assume that the occupant per bedroom standard will apply.

The landlord cannot unreasonably refuse a tenant’s written request for adding a roommate. If the landlord fails to respond to the tenant’s request  in writing within 14 days of receipt of the tenant’s written request shall be deemed approved by the landlord. Nor can the landlord refuse based on the proposed additional occupant’s lack of creditworthiness, if that person will not be legally obligated to pay some or all of the rent to the landlord—meaning that unless the landlord wants to put the subtenant on the lease (and they never do), he can’t ask for credit reports or references.

Moreover, Rent Ordinance § 37.9(a)(2)(D) provides that a landlord must serve a 10-day notice to cure to evict a tenant for illegal subletting. If served tenant can cure by simply requesting in writing with 10 days, to add the offending roommate and avoid an unlawful detainer (eviction lawsuit) altogether.

So how would I answer the question today?

I would remind the reader that Lt. Governor Gain Newsom still remains a rapacious, oily narcissist and shill for the real estate industry, who can occasionally squeeze out a crocodile tear for tenants—a typical “progressive” Democrat politician.

And I would refer her to either Rent Board Rules & Regulations § 6.15A (absolute subletting prohibition in the lease) or § 6.15B (lease requiring landlord’s written consent to subletting).

I would advise her to write the landlord to request the addition of her boyfriend and wait to see if he responds at all or tries to refuse permission. In most case, that will be the end of the process, as most blanket refusals will be deemed unreasonable.

I would point out that the landlord cannot unreasonably refuse permission unless the boyfriend has intentionally misrepresented significant facts on the landlord’s standard form application or provided significant misinformation to the landlord that interferes with the landlord’s ability to conduct a typical background check; or where the landlord can establish that her boyfriend presents a direct threat to the health, safety or security of other residents of the property; or her boyfriend presents a direct threat to the safety, security or physical structure of the property.

In other words, if the landlord could prove that her boyfriend was a liar, a sex offender or a firebug, the landlord could refuse permission. I would also suggest that my reader think twice about adding her boyfriend to the tenancy if he had any of those particular traits.

Finally, if the landlord insisted upon unreasonably refusing to add the boyfriend to the tenancy, I would advise my reader to file a decrease in services petition at the Rent Board to reduce her rent by half.

Whew! No more need for me to assert the Victorian implication that San Francisco requires partners to be married for legal cohabitation! Thanks, Jane.