Can Move I Out and Sublet to New Roommates?

I was researching on how to add new roommates to my lease in SF, and found your super article, “Tenant Troubles: Can I add a new roommate to my lease?”

I would love some help. I have a 1-bedroom rent controlled apartment, and I would like to keep it, as I love the location. The lease is originally for 1 adult occupant (myself) and my son (a teen now, a toddler when we started renting). I’ve lived there for 10 years. I entered into a new lease in a different bay area city a month ago. I need more space for a home business, and it was getting very cramped with a teen son. I work in SF and it’s convenient for me to switch up and stay in this SF apartment at times, plus it’s nice to be in my old neighborhood/stomping grounds.

I have a couple who are interested in becoming new roommates. I read your article, it was a really nice confirmation of my understanding of Rent Board Rules & Regulations § 6.15E.

I’ve notified the landlord, and let him know that I am requesting to add 2 roommates, and remove my son as an occupant, so it ends up becoming 3 occupants total, for a 1 bedroom. I’ll be responsible for full payment. The landlord is unwilling to approve of it and he did not give a reason.

I have a few questions:

1. I would like to ask what are my options in challenging this? I see that your article suggests to petition for a rent decrease for a reduction in housing services. If I go this route, can I ask for 2/3 reduction since they are refusing for me to add 2 occupants?

2. Alternatively, can I ask the Rent Board to allow the new roommates, since the landlord has no reason to reject, and it is a roomy 1 bedroom, 550 square feet? What are my chances in pursuing this option? The roommates need a place, and they were expecting to move in soon, and it would be my preferred outcome.

3. Would you recommend I use a lawyer such as yourself? I have never approached the Rent Board before.

If you have read my other articles about absentee master tenants, you know that I advise potential new roommates to never, ever move into an apartment with an absentee master tenant. See, e.g. My Absentee Master Tenant Was Scamming Me And My Landlord; Why An Absentee Master Tenant Is A Bad Idea; and I Think My Master Tenant Is Scamming Me.

Arguably, the landlord’s refusal to sublet is per se unreasonable because he did not give you a reason for his refusal. Arguably, you can simply allow the new “roommates” to move in. But I still think it’s a bad idea and here’s why.

First, you should understand how a lawyer or a judge, including an administrative law judge at the Rent Board, might read your facts if they were offered as some sort of statement under oath:

“I have a 1-bedroom rent controlled apartment, and I would like to keep it, as I love the location.” You want to keep your apartment, but you don’t need to keep it.

“The lease is originally for 1 adult occupant (myself) and my son (a teen now, a toddler when we started renting). I’ve lived there for 10 years. I entered into a new lease in a different bay area city a month ago. I need more space for a home business, and it was getting very cramped with a teen son.” Your son is a minor and he still lives with you. He moved out because you did. You have a home business. You moved out of your San Francisco apartment to get more living and working space.

“I work in SF and it’s convenient for me to switch up and stay in this SF apartment at times, plus it’s nice to be in my old neighborhood/stomping grounds.” Earlier you said you have a home business, now you say you work in SF. Which is it? I’m not saying you can’t have both, but it’s not apparent that you must come to San Francisco on a regular basis for work. You confirm that, by saying you want to come to San Francisco, occasionally, to hang out.

Based upon the facts you’ve presented here (and I’m not saying that there aren’t more), I could conclude that you want to maintain a San Francisco pied-à-terre to which you could return once and awhile to get drunk in the old neighborhood and sleep on the couch to avoid driving home.

Second, think about the new “roommates.” I’m sure they’re delighted at being able to pay below-market rent, that is unless you’re charging them airbnb rates. They may even be willing to reserve a place on the couch for you when you come to the City, but for how long?

Moreover, if the landlord gets wind of your arrangement, he will likely serve a 60-day notice to increase the rent based upon the fact that the unit is not your permanent place of residence per the Costa Hawkins Rental Housing Act, which, hopefully will be repealed in November. The landlord can allege that he has the right to increase the rent because the new “roommates” are subsequent occupants and the unit is not your permanent place of residence.

The landlord also could attempt to evict them outright under Rent Ordinance § 37.9(a)(7):

“A landlord shall not endeavor to recover possession of a rental unit unless The tenant holding at the end of the term of the oral or written agreement is a subtenant not approved by the landlord.”

I don’t think an attempt to evict, based on this section would hold much sway over a court because the landlord has unreasonably refused such approval. But that doesn’t mean that the landlord won’t try to evict, subjecting you and your new “roommates” to the massive cost of defending an eviction in court. I also believe that this section of the Rent Ordinance should be eliminated, given the Kim Amendments.

Finally, your decision to sublet rather than to simply move out weakens rent control for the rest of us. As the campaign against Costa Hawkins repeal heats up, we’re going to see ads on TV depicting crying little old ladies, the “mom and pop landlords” crying and whining about how nasty tenants, like you, usurped landlords’ god-given right to increase the rent by moving out and subletting apartments to new roommates.

To briefly answer your questions: 1) For the reasons above, I wouldn’t advise you to try to seek a decrease in rent at the Rent Board, other lawyers might, but I wouldn’t; 2) The Rent Board does not have the jurisdiction to require that the landlord accept the new “roommates”; and 3) We would not take your case, others might, but we wouldn’t.

Bad idea! Don’t do it!