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Poodle In The Microwave: Three Common Tenant Misconceptions

Poodle In The Microwave: Three Common Tenant Misconceptions

by | Apr 20, 2018 | Tenant Troubles Classics

Poodle In The Microwave: Three Common Tenant Misconceptions

Mama Cass choked on a ham sandwich. You won 400,000 euros in the Latvian lottery. Barack Obama wasn’t born in the United States. Gerbils. Best of all, after giving her poodle a bath, a woman thought it would be a good idea to dry the dog in the microwave. Urban legends all, but some of them stick. Tenants have some too.

1.  I have a five-day grace period to pay my rent.

Not unless your lease says so. Many tenants believe there is a law that requires landlords to give them a five day grace in which to pay their rent. Not true. Other tenants are justifiably confused about a clause commonly found in leases that provides that a late charge will not be assessed if the rent is less than five days late. A clause like this does not change the due date of your rent. Certainly, the landlord cannot charge you a late fee if you pay during the five-day period, but the rent is still due on the due date stated in the lease. You don’t want the landlord to attempt to evict you for habitually paying the rent late. Pay your rent on or before the the due date, usually the first of the month.

2.  It will take six months to a year for the landlord to evict me.

Sometimes this is true, but this is the exception, not the rule. As I point out in my blog post, The UD Shuffle: Notice, if you do nothing after you get a notice to quit, the sheriff could be knocking on your door in two to three weeks. Even if a tenant timely answers an unlawful detainer, the landlord’s lawyer can move to set the case for trial within 20 days of the answer. Without a very spirited defense that includes propounding discovery, pre-answer and pre-trial  motions and legal representation, a pro se tenant (one who represents herself) will, if she loses, be evicted in about six weeks. In other words, it is not a good idea to assume that you can buy much time just because you go to unlawful detainer.

3.  The unlawful detainer case will settle at the mandatory settlement conference.

Yes, it’s true that most civil cases settle before trial, but unless a tenant has a slam dunk defense or she is represented by an attorney vigorously defending the case, what impetus does the landlord have to settle? I speak to many tenants who answered the unlawful detainer complaint, did nothing else and went to the settlement conference  hoping to resolve their differences with the landlord. They often express bitter disappointment that they are offered “don’t let the door hit you in the ass” move-out deals. In San Francisco, mandatory settlement conferences are set the week before trial. Trials are set to begin on Monday. Usually discovery is cut off, i.e. there is no more time to depose witnesses or get the evidence that the landlord plans to use against the tenant. In other words the tenant is walking into the court on Monday completely unprepared. If the landlord’s attorney knows this, why would he recommend that his client settle for anything other than a move-out? And I’m talking about a move-out where the tenant may have to pay. We receive many calls from tenants on Thursday or Friday seeking representation for trial the next Monday. Trial preparation takes hours and hours and a lawyer needs to know what kind of evidence is going to be used against his client. Unless your case is an obvious winner, it is unlikely that I will want to spend my weekend preparing to go into court to get blindsided. Don’t think that just because you answered a UD the case will settle, or if it does settle, the settlement will be at all satisfactory.

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Adding Roommates to Your Lease is Much Easier These Days

Adding Roommates to Your Lease is Much Easier These Days

by | Mar 14, 2018 | Roommates

Adding Roommates to Your Lease is Much Easier These Days

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.

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Repeal Costa Hawkins? It’s the Democrats, Stupid.

Repeal Costa Hawkins? It’s the Democrats, Stupid.

by | Jan 1, 2018 | Costa Hawkins

Repeal Costa Hawkins? It’s the Democrats, Stupid.

I whole-heartedly support the efforts to repeal Costa Hawkins by tenant organizations like Tenants Together, the San Francisco Tenants Union, the San Francisco Anti-Displacement Coalition, the Housing Rights Committee of San Francisco and all the other hard working individuals and organizations supporting this worthy goal. I’ve been demanding Costa Hawkins repeal for years.

For those of you who can, I urge you to go to Sacramento on January 11, 2018 to attend the first Assembly Housing and Community Development Committee hearing and to loudly support Costa Hawkins repeal—to vociferously support the right of local government to enact rent control.

Democrats with a super majority, champions of the little guys, will support local efforts to control outrageous rent increases that create homelessness—No brainer, right?

Remember, Costa Hawkins was a bipartisan measure authored by Jim Costa (D-Fresno), a congressman now and a member of the Blue Dog Democrats; and Phil Hawkins (R-Bellflower), a one-term 56th Assembly District representative.

The California Legislature enacted the Costa-Hawkins Rental Housing Act in 1995 with the passage of AB 1164 (Hawkins) and its predecessor, SB 1257 (Costa) with support from one-percenters like the so-called Coalition for Fair Rental Policy, the California Building Industry Association, the California League of Savings Institutions, the California Land Title Association, the California Mortgage Bankers Association, and various property owners and apartment associations throughout California.

The Costa Hawkins Rental Housing Act (CA Civil Code §§ 1954.50-1954.535) gutted rent control by prohibiting local jurisdictions from enacting rent control on any building with a certificate of occupancy issued after February 1, 1995. It banned any vacancy control–regulated rents for units despite vacancy (think Berkeley.) It also entirely exempted single-family dwellings from rent control.

Another pervasive effect of Costa Hawkins in already rent-controlled jurisdictions, is that it allows landlords to increase rent as they see fit upon subsequent occupants, roommates who still reside in a unit after the original tenant on the lease has vacated. The typical scenario here is that a new owner, usually a rapacious capitalist, MBA bean counter, will see that the current tenants are not those listed on the lease and serve a sixty-day notice to increase the rent. This often occurs with long-term tenancies in which the former owners allowed the original and subsequent tenants to replace roommates informally.

Democrats now understand that Costa Hawkins has caused massive displacement and economic hardship for tenants, right?

More recently, California Democrats had an opportunity to to support tenants and failed to do so. In 2013, then State Senator Mark Leno introduced a bill (SB 603) to amend the security deposit law to include, among other things two issues I’ve noted here. It would have required landlords to keep security deposit in separate accounts and to pay interest on the amounts. It would have also required that a court must award statutory damages with a finding of a bad faith claim or retention of a security deposit. The current law says “may” and statutory damages are only assessed in about 3.5% of cases. The bill was defeated by Democrats!

In an article for BeyondChron complaining about the defeat of (from my perspective) a relatively innocuous bill, Dean Preston wrote:

“[T]here appears to be an additional factor driving some of these votes. 17 of 39 senators, that’s 44% of the Senate, are themselves landlords. This results in a bias when it comes to landlord-tenant affairs, one that is easily exploited by landlord lobbyists.

 

The senators who betrayed tenants last week are relying on not being called out. They know things often fade quickly from public view, particularly votes cast in Sacramento. Tenants at the grassroots level need to get their pens, computers, phones, bullhorns, signs, bodies and sense of outrage ready. Senators who opposed this bill need to get an earful as they return to their districts.

 

There is no getting around this basic fact: a majority of Democratic senators voted to protect landlords who illegally withhold tenant security deposits. At this point, California Democrats cannot even be trusted to give tenants basic protections enjoyed by tenants in Alabama. Tenants may have helped elect the 2/3 Democratic majority, but so far they sure aren’t getting much in return.”

What has changed? It looks like only five of the democratic senators who voted against the security deposit bill are still holding office, but will the turnover be enough? I’m not holding my breath, especially since one of the ass-wipes who voted against the bill, Kevin De Leon, recently announced that that he will run for the U.S. Senate against Diane Feinstein—as a progressive. I’m no fan of Feinstein, but I will never vote for Mr. De Leon because he demonstrated his true nature with that one vote.

Why not call the Democrats out now?

Dean Preston’s words still ring true: “California Democrats cannot even be trusted to give tenants basic protections enjoyed by tenants in Alabama.” While I admire and support the effort to repeal Costa Hawkins on the legislative level, a warning to legislators should be included in any dialogue—You fuck us on this and we’ll fuck you back.

Thanks to Tenants Together and all the others, the tide is rising for tenants, but we cannot rely upon anyone but ourselves. I recommend that tenants, especially tenant organizers read Last Call: The Rise and Fall of Prohibition, by Daniel Okrent.

“There have been many studies that follow the rapid growth of the temperance movement in this era — the colorful saloon-busting of Carry Nation, the tent-revival magnetism of Billy Sunday — but none can match the precision of Okrent’s account. Momentum, he notes, depended on both a keen understanding of the political process and a ruthless approach to elected officials, who either joined the cause or found themselves under endless assault.” —New York Times Sunday Book Review, by David Oshinsky, May 21, 2010.

The strategies chronicled in “Last Call” were emulated by Tea Party Republicans, showing that pressure can be applied at the local level to successfully effect single issue change. The single issues in each case, prohibition and no taxes, were extremely narrow-minded. Imagine how successful tenants could be with the single issue of local control, or eventually, the right to housing. I believe an “endless assault” on Democratic legislators should not only come in the form of consistently calling them out, but also forming a Tenant Party to run tenant activists in local and statewide races. Certainly any Tenant Party candidate should run to win. In San Francisco and other cities with large tenant populations winning is possible. But even in losing a given election, a Tenant Party candidate would not bode well for a Democrat. If there’s a Republican out there who will vote to repeal Costa Hawkins, tenants should vote for that candidate as well.

Did I mention that it’s also time to repeal the Ellis Act?

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Do I Have to Use The Crappy Furniture That Came With My Apartment?

Do I Have to Use The Crappy Furniture That Came With My Apartment?

by | Aug 28, 2013 | Tenant Law

Do I Have to Use The Crappy Furniture That Came With My Apartment?

Crappy furniture.

I am a tenant in lower Nob Hill, building is more than 50 years old.  I live in a studio apartment that I signed a 6 month lease for in July of 2011.  The apartment came sparsely furnished with a futon bed (now removed because it was broken), a T.V./bookcase wooden thing, that probably dates back to the 70’s and a small table that is filthy, stained and ewwwwww.  

I want to remove the furniture and move my own in.  I wasn’t sure about how long I would be here, so the sorta furnished deal was appealing at the time I moved in.  Now that I know I will be here a few more years, I’d like to bring my stuff up from down south.  

The furniture is not worth anything and Goodwill and DAV will not take it because it is in too rough of shape.  

The landlord has threatened me with lawsuits and eviction stating to move furniture out would be a “serious crime”.  I have assured him that I will leave the apartment in better condition than what it was rented to me, but I was set on getting rid of the useless furniture.  

I have searched high and low for some kind of law or statute about this and I cannot find one.  I don’t mind giving up my deposit, which was 600 bucks.

The best solution to this problem would be to stash the furniture in a closet until you move. I’m guessing that may not be an option for you because the apartment is a studio. I also get that the cost of storing worthless furniture is a waste of money.

The first place to look to resolve, or at least understand how to deal with issues like this, is your lease. Check it carefully to see if it defines your obligations with respect to the firewood in your apartment. Look for specific clauses regarding the furnishings. Then read more general clauses that limit or prohibit alterations and repairs to the unit.

Read the lease as broadly as possible to see if any language that could be applied to removing the furniture could be used to evict you for breach of contract. Given his absurd claim that removing the furniture would be a serious crime, your landlord (or his lawyer) will be reading the lease the same way. Make sure the landlord cannot evict you for breach of the lease.

Next, make sure that the table isn’t a Federal inlay mahogany card table made by John and Thomas Seymour for which the landlord paid $30.00 now valued at $400,000 or that the T.V. bookcase thing isn’t an original Stickley.

As you already guessed, if you aren’t in breach of an obligation under the lease, removing the furniture is a security deposit issue. California Civil Code section 1950.5(b)(4) states that a deposit may be used by the landlord “to remedy future defaults by the tenant in any obligation under the rental agreement to restore, replace, or return personal property or appurtenances, exclusive of ordinary wear and tear, if the security deposit is authorized to be applied thereto by the rental agreement.”

You need to remind your landlord that you’re not committing any crime, he cannot evict you, and if he sues you in small claims court he will lose because he can’t prove any damages if the furniture has no value.

You can also tell him that he can use the deposit to replace the furniture in case he still wants to rent the apartment as furnished. Point out that this is a good deal for him because he can find replacement furniture on the street, just like he did the first time.

Then take lots of photos of the furniture before you toss it. The photos should be so detailed that one can smell the 70s. Ewwwwww!

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I Think We Have A Squatter In Our Garage

I Think We Have A Squatter In Our Garage

by | Mar 6, 2013 | Tenant Law

I Think We Have A Squatter In Our Garage

I have a question about a squatter that’s living in our building. I’ve tried doing research online regarding squatters living in a building’s common areas or garage, but haven’t come up with much.

My two roommates and I live in a three-story apartment building in San Francisco (built in the early 1990s, so no rent control).  It has three units total – two flats, and a small, most likely illegal unit in the rear of the garage. 

Our garage is large enough for two cars to park side-by-side. 

While we are not on a lease right now (and have not been for four years), I’ve lived in the top flat for over six years, and a garage spot has always been reserved for our flat, as well as the flat on the second floor.  Other than that, the garage houses all of the building’s electrical switches, the main water shut-off, washer and dryer for tenants’ use, two water heaters (shared among the three units), and also a gas heating unit for the second-floor flat. 

Our problem is that there is a squatter living in our garage.  The squatter is a former tenant of the second-floor flat below ours, who must have gotten kicked out by her roommates.  She has an 8-year-old child with a man who still lives in the flat below us, and it seems that they share custody.  However, we suspect that the woman is homeless.  

Although she is no longer living in the second-floor flat, she retained her keys, or at least the key to enter the gate that allows access to the building.  There were a few days when she didn’t have keys and was constantly ringing our doorbell (a.k.a. harassing us) in an attempt to gain entrance to the building. 

Her car remains in the garage, where it has been for the last 7+ years.  She sleeps in the car, but that isn’t even the worst part.  One day about six or eight weeks ago, out of nowhere, all of her possessions appeared in garbage bags in the garage.  

To describe the disaster, it looks like she put all of her possessions in the room above the garage and the ceiling caved in.  It has quite literally turned our garage into a landfill.  There are clothes, food, food wrappers, garbage, and old appliances strewn everywhere, blocking walkways and making passage through the garage to the backyard difficult.  My roommate’s parking space in the garage is often blocked by, or filled with, this junk. 

For instance, my roommate will leave for the day and come back in the evening, and the squatter will have moved junk into my roommate’s parking space.  Our water main shutoff is blocked by garbage and appliances that are piled against the wall.  The squatter makes use of our washer and dryer whenever she feels like it (utilities that we are paying for, by the way).  Lord only knows where she uses the restroom, because her former roommates, the second-floor tenants, do not seem to allow her to enter their flat.   

The situation gets worse on a daily basis.  At first, we were sympathetic, as she apologized for the mess, saying that she was moving to another apartment, and everything would be out in a couple of weeks.  However, that doesn’t seem to have happened. 

Last week, we called the property manager and told him what was going on.  He said he needed to think about it and would call us back.  The following day, I sent him a letter detailing everything I have mentioned here, complete with several photos of the possessions and garbage in the garage.  I suggested that he call me ASAP because something needs to be done about this situation promptly.  No reply yet.  As tenants, I don’t believe we can legally do anything about this situation, and the landlord is the one who needs to formally evict the squatter.  Am I correct?  If he does not take any action, what can we do as tenants?

Strictly speaking, squatters do not need to be formally evicted, that is served with notice and sued in unlawful detainer. Squatters have no tenancy rights and can simply be ejected from a building by the police. You can call the police, but my years at the Homeless Advocacy Project make me queasy, even given your frustration, to suggest that course of action right off the bat.

It is the landlord’s duty to deal with the squatter and you were correct informing the property manage in the manner you did. However, in this case, you’re probably going to act more compassionately than the landlord. Rather than simply looking at this woman as a nuisance to be cleared away, I hope that you can see her as a human being who needs help. The question is what kind of help and what can you do to steer her in the right direction.

I think the first thing to do is to find out why the woman is no longer living in her apartment. Ask the downstairs neighbors what happened. Clearly, their perspective may be biased, but it will help you get an understanding of the woman’s current dilemma. You can learn the circumstances of her “eviction.” You can, perhaps, ascertain her mental state; find out if she is employed.

To me something smells about the circumstances in which baby-daddy kicked out the mother of his child, but clearly, you don’t have any obligation to delve into that.

You don’t mention if the child lives with his or her mother in the car. If that is true you’ll need to act faster.

I would speak to the woman one more time to get a clearer understanding of her mental state and her plans or lack thereof. Does she get that she can’t simply live in her car in the garage?

Suggest that she drop into the Homeless Advocacy Project, 1360 Mission Street Suite 201 (between 9th and 10th Streets), on a Tuesday between 1:30 p.m. and 4:00 p.m. for their new client drop-in clinic. They will evaluate her case based on a holistic assessment of her needs and either take her as a client or refer her to an agency who can help.

Let her know that she may qualify for shelter service for her and her child. She can contact Compass Community Services, Hamilton Family Center, or St. Joseph’s Family Center.

If she refuses to try to get help, especially if she has her child in tow, then it’s time to call the cops. Call the non-emergency number, (415) 553-0123, explain the situation, and ask if they can bring a social worker.

If you’d prefer that your landlord take steps to remove the squatter, show him this article and suggest that he take the steps I’ve outlined.

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My Landlord’s Threatening To Evict Me Because My Boyfriend Moved In To Take Care of Me

My Landlord’s Threatening To Evict Me Because My Boyfriend Moved In To Take Care of Me

by | Jan 31, 2013 | Roommates

My Landlord’s Threatening To Evict Me Because My Boyfriend Moved In To Take Care of Me

I saw your post on subletting and assignment. My lease has a blanket prohibition in it but I feel my situation is different than other people’s.

Recently my boyfriend moved in. I asked him after several months of coping with a debilitating injury. I asked the landlord several times to fix the intercom which she never did and I was unable to get groceries or answer my door. I live on the fourth floor of a walk-up. I told her he was coming in writing and why. She responded by saying i had to keep her informed of my condition. I have kept her up to date on a regular basis but it is a tendon injury and can take 6 months to initially recover and even longer before I can lift heavy things. She also prohibited me from giving the door code to anyone and basically made me a prisoner. No laundry service. No ability to live.

My boyfriend and I were broken up. But after one long night of crying and feeling like my stomach was going to implode from hunger, I begged for him to come stay here and help me out. Now, since she spies on everyone in the building, she is threatening to evict me because he is here. Even though being here has allowed me to rest and recover. And I am slowly getting better. I am not better yet and am lucky that I have a job that does not require any walking or standing, and which pays enough to pay the 3500/mo I pay for this 2 bedroom apartment. Trust me he would not have been invited if I didn’t absolutely need a caretaker. I have mounds of doctor bills to prove my injury and she won’t budge. Is there nothing I can do?

To paraphrase David Mamet, the landlord business is a people business. It’s a fucking people business. I’m sure your landlord understands this, but $42,000.00 in annual rent just isn’t the market rate any more. Your landlord must be suffering from compassion fatigue.

Does your boyfriend pay you any rent? If he does not, he cannot be characterized as a subtenant. Does he maintain his own residence despite staying with you much of the time? If he does, you should give the landlord a copy of his lease to show that he is not a subtenant.

If your boyfriend pays your a portion of the rent and he does not live elsewhere he is a subtenant subject to San Francisco Rent Board Rules & Regulations §6.15A. This section is applicable to absolute prohibitions on subletting.

Take a look at your lease and see if it includes these items as stated in Rules & Regulations §6.15A (a)(1-2):

(1) The prohibition against sublet or assignment is set forth in enlarged or boldface type in the lease or rental agreement and is separately initialed by the tenant; or

(2) The landlord has provided the tenant with a written explanation of the meaning of the absolute prohibition, either as part of the written lease or rental agreement, or in a separate writing.

Then take a look at your original letter to the landlord. Did you ask her to add your BF to the tenancy. If you did and she didn’t respond in the negative, the landlord may have waived her right to refuse the subtenancy by not responding in 14 days.

I also noticed that you live in a two-bedroom apartment. If you had a roommate in the past, to add your BF to the tenancy you can simply go through the rest of the steps as outlined in Rules & Regulations §6.15A. The rules allow a one-for-one replacement despite an absolute prohibition on subletting.

Intercom systems are integral to multistory buildings. You should call a housing inspector from the DBI to inspect the intercom and any other potential violations in your unit or the building. Then file a petition for substantial decreases in services at the Rent Board.

I also did a little research to determine if you could request a reasonable accommodation to allow your BF to stay with you pursuant to the Americans with Disability Act. While this is not my area of expertise, I found this from the Disability Rights California website:

The length of time that an impairment affects major life activities may help to determine whether the impairment substantially limits those activities.
Even so, the law expressly states with respect to those “regarded as having such an impairment” that protection under the ADA shall not be given to “impairments that are transitory and minor.”  “A transitory impairment is an impairment with an actual or expected duration of 6 months or less.”

Readers: The next time some free-market wanker starts moaning about market rate rents, give them this example. This is the market jackwad–$42,000 per year for a fourth-floor walkup with no doorbell and a three-headed bitch (Cerberus was a hound) guarding the gates of ones own personal Hades.

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Can I Be Evicted For Subletting Without Permission?

Can I Be Evicted For Subletting Without Permission?

by | Sep 6, 2012 | Roommates

Can I Be Evicted For Subletting Without Permission?

Recently a friend of mine was handed an eviction notice from her landlord for subletting one of the rooms in her apartment while she was traveling. It shocked me that out of nowhere, the landlord could evict someone for something like this. She was already back at the house, and the issues was solved. It makes me a bit nervous about my own situation.

I live in a two bedroom flat in the Mission with a third room; a small “office.” Like many tenants in San Francisco, we have rented out the small, extra room to a friend. Having a third tenant was expressly verboten by the landlord when I signed the lease. However, this third person has lived with us for almost three years and there is a good chance the landlord already knows about it; he has made comments in passing such as “let your roommates know,” has probably seen the third person around, etc. I get along very well with my landlord and always pay my rent on time.

I have two questions:

1. A lawyer friend of mine mentioned something about “implied consent,” in terms of tenant/landlord relations, where if there is sufficient reason to believe the landlord is aware of a situation that is in violation of the lease, he or she is implicitly consenting to the violation. Is there any truth to this?

2. Can a landlord serve someone with an eviction notice without warning, or without a notice telling the tenant he or she must fix the situation? If landlords find out you’ve been subletting your room, or you’ve got an extra person in your flat, can they just evict you on the spot without telling you to stop subletting or ask the extra person to leave?

Issues with sub-tenants and people living in laundry rooms are issues that will increasingly apply to San Francisco tenants; this is an expensive place to live. I think we would all benefit from some extra information on the matter.

Having a third tenant was expressly verboten by the landlord when I signed the lease. What can I say? If your lease prohibits a third roommate and your landlord decides that the rent is too low and decides to evict you, it’s his prerogative. He can serve a three-day notice to cure or quit and if the roommate is not gone in three days, boom, the landlord can serve an unlawful detainer (eviction lawsuit). End of story.

Your lawyer friend is referring to the concept of waiver. Waiver is defined as an intentional relinquishment of a known right. In your case the landlord must know about your roommate’s presence and essentially consent it. Notice the term “intentional relinquishment.” How are you going to prove that in court? Certainly not by alluding to vague comments in which the landlord used roommates in the plural form.

The landlord never can evict a tenant “on the spot.” They must follow the rigid procedures defined in state and local law. The first step would be to serve a three-day notice to cure or quit as I described.

A couple of years ago, my business partner Solvejg and I represented a tenant whose predicament was similar to your friend’s. In that case the landlord had served a three-day notice to quit for illegal subletting. By the time we got the case, the landlord had served an unlawful detainer. Our client had to come back from the East Coast to defend the action.

We wrote a demurrer to the complaint alleging that the complaint was defective because the notice did not allow the tenant to “cure” the default as required in the San Francisco Rent Ordinance, but not state law. The notice did not allow the tenant an opportunity to remove the illegal subletter. Our client got lucky, but it cost her about five thousand dollars to keep the tenancy. She was lucky because she had the money to defend the case, and she made a good business decision because her rent was well below market rate.

Most tenants don’t have the kind of dough to pay lawyers to assert their rights and that’s the real point. Yes, tenants have rights and various defenses to unlawful detainer actions, but they often don’t have the resources to adequately assert those rights or to allege a viable defense. Landlords are well aware of this.

Clearly you, and most tenants, don’t understand the stress, pain and costs of defending a lawsuit, otherwise you would not knowingly violate your lease.

Why would you put your roommate through this? He didn’t do anything wrong, yet he could be either forced to move in three days or be named in a lawsuit and potentially screw up his credit.

San Francisco is expensive and many landlords these days want to cash in on the new Twitter/tech boom. One of the easiest ways to remove rent-controlled tenants is to sue them for illegal subletting. Often subletting from which the landlord turned a blind eye in the past, but that was the past and now those eyes are open.

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