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Can Someone Be A Subtenant If They Aren’t Paying Rent?

Can Someone Be A Subtenant If They Aren’t Paying Rent?

Can Someone Be A Subtenant If They Aren’t Paying Rent?

I like your column, you appear to be on the slightly radical side of liberal. 🙂

Last August you wrote: 

“Many tenants are confused about the definition of subletting. If you lease a premises, even on a month-to-month basis and you charge another person to rent the entire premises or a portion of the premises without somehow changing the lease by adding her as a tenant, you are subletting. You are the only person liable to the landlord to perform the various obligations of your lease.”

What if no money changes hands? What if the person living there is just feeding the cat and taking care of the place until the renter returns from vacation, skilled nursing facility, etc? Does this still legally constitute a “sublet”, or a renter?

I’ll be happy to elaborate on the context if you’d like, it’s basically about my Mother’s situation.

She’s been fighting for her life in a skilled nursing facility for a few months with a live-in watching her place (and cat) until she returns. Getting a lot of heat from her landlord – in spite of the fact her caretaker is registered as a tenant with same landlord. The caretaker is staying there for the consideration of providing care. No money involved in the exchange.

Going to make a few assumptions here, because your question does not provide quite enough details. I’m going to assume that your mother lives in San Francisco and has a rent-controlled tenancy. Based on your representation that the caretaker is a registered tenant, I’m going to assume that the landlord somehow accepted the caretaker as a roommate; or at least knows about your mother’s condition and that the caretaker is house-sitting.

As I stated in my August article, sharing the rent with a roommate also falls within the definition of subletting. The classic definition of subletting is the payment of consideration to a leaseholder for an exclusive right to all or part of the leaseholder’s interest in the lease. The subtenant has a contract with the leaseholder (master tenant) but not with the landlord. In a roommate scenario, the subtenant usually pays rent or other consideration to the master tenant to exclusively occupy a bedroom in the apartment. Most residential leases provide for a landlord’s written consent to sublet.

In your case, the landlord could argue that the caretaker is subletting because she is providing consideration, i.e., cat care and security for a free place to stay. But the analysis does not end there. A court would also inquire if the caretaker had exclusive possession. In other words, if your mother comes back does the caretaker still have a right to occupy all or part of the apartment?

Procedurally, the landlord is required to serve a three-day notice to cure or quit. If the caretaker moved out, that should nip the argument in the bud.

I think it is unlikely that a San Francisco jury would find that the caretaker was a subletter. Nevertheless your mother could be vulnerable to defending an unlawful detainer (eviction) action. Of course, if she can prove that the landlord has accepted the caretaker as a subtenant, case over.

Before serving a notice to cure or quit and filing an unlawful detainer, a prudent San Francisco landlord should file a “1.21 petition” at the San Francisco Rent Board. If the Board ruled that the apartment was not your mother’s primary place of residence, the landlord could raise the rent to market rate without evicting her.

That’s what it’s all about anyway, landlords rarely give a rat’s ass about who lives in an apartment as long as the rent is paid. They only care about subletters when and if they think the rent is too low.

Readers: when you submit a question, you should provide as many details as possible. They don’t have to be confidential details, but I need to understand the basics that I outlined in Tenant Troubles: How To Help Dave Help You. That way I can give you a complete answer based upon the the facts of your specific issue. If you eventually need to seek the advice of a tenant attorney, you will need to provide these initial details, so it’s a good idea to have them on hand.

BTW, the best way to piss me off is to call me a liberal. Mush-headed liberals think the system can be fixed. I have to be balanced, unbiased when I try to explain how the law works. 😉  That doesn’t mean that landlord tenant law is either fair, just or reparable. Ask your mother about that.

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Can I Refuse To Sign A Lease?

Can I Refuse To Sign A Lease?

Can I Refuse To Sign A Lease?

All the websites discuss the SF Rent Control stuff about when your building was built, condo or single family home, etc. But I can never find an answer to THIS situation:

Assume I live in a rent-controlled building.

Why does the landlord make me sign a lease? OK, maybe it’s because they don’t want to look for a new tenant, so I’d sign a 1-year lease. But given the rents rise in the city, after a year they’d probably love if I move out. But let’s say they don’t, and they want me to stay.

One-year anniversary of lease rolls around. Landlord asks me to sign another lease.

What rights do I have then? While I wouldn’t MIND signing a lease, if I don’t, I’m under rent-control anyways, so wouldn’t the term go month-to-month? In other words, if I signed a lease, I’m just giving up the flexibility to move away any month I want…without getting anything in return. I’m stuck in the same spot for another year and liable to pay that rent.

BUT, I can never find the definitive answer in this. I read one place that as that year approaches, the landlord can ask you to re-up on a lease at all the normal rent-control same terms (same rent plus the allowable increase, no material changes, etc). In THAT case, if I refused to sign the lease again – I could be kicked out. The reasoning was that I was offered the ability to continue to stay there at basically the same terms…and I refused (instead I asked for “more” via a month-to-month tenancy, which the landlord doesn’t have to accept).

So, which is it? Should a tenant in a rent-controlled apartment ever re-up with leases? Or can they say “No” and rest easy knowing the landlord can’t kick them out?

My business partner, Solvejg Rose, a German lawyer, taught me a very valuable lesson. When in doubt, read the statute. In the United States when we study law, we read a lot of cases interpreting the law but we tend to forget to rely on the wording of a given statute, the actual law. Often, a plain reading of the law is enough to make a legal argument.

For lay people it can be tough to find the applicable statute to interpret. That’s why I always try to cite the law and/or provide links to the law in these articles. I hope my readers can learn the basics and then ask, as you have, how the law can be applicable to an individual set of circumstances.

So let’s look at the law. Rent Ordinance §37.9(a)(5) provides that a tenant can be evicted if

The tenant, who had an oral or written agreement with the landlord which has terminated, has refused after written request or demand by the landlord to execute a written extension or renewal thereof for a further term of like duration and under such terms which are materially the same as in the previous agreement; provided, that such terms do not conflict with any of the provisions of this Chapter.

Before I get into the application of this just cause in the Rent Ordinance, here’s a method for tenants to find answers to their general questions. First ask yourself, “Can I be evicted if I (fill in the blank)?” If your unit was built before June 16, 1979, begin your search in §37.9 of the Rent Ordinance. The subparts of §37.9(a) list the just causes for eviction in San Francisco.

If you need to consult other resources, we provide a complete list of them on the Crow & Rose Tenant Resources page.

You can be evicted if you refuse to sign a new lease, but only if the lease contains “terms which are materially the same as in the previous agreement.”

Rent Board Rules and Regulations §12.20 provides further guidance:

Notwithstanding any change in the terms of a tenancy pursuant to Civil Code Section 827, a tenant may not be evicted for violation of a covenant or obligation that was not included in the tenant’s rental agreement at the inception of the tenancy unless: (1) the change in the terms of the tenancy is authorized by the Rent Ordinance or required by federal, state or local law; or (2) the change in the terms of the tenancy was accepted in writing by the tenant after receipt of written notice from the landlord that the tenant need not accept such new term as part of the rental agreement.

When the one-year anniversary rolls around, just compare the old lease with the new, side by side. Hint: If your old lease is a one-page stationery store form and your new one is a 34-page San Francisco Apartment Association lease, you can bet there will be a few more new terms–like about 60!

It does seem counter-intuitive for a landlord to request that a long term rent-controlled tenant continue to sign a new lease, but counter-intuitive for landlords can be beneficial for tenants. You are protected from nasty rent increases, OMI notices or Ellis notices that become effective before the end of your lease.

If you’ve lived in your apartment a couple of years, the market value of your rental will be markedly higher. If you decide to move and you give the landlord a 30-day notice to vacate before the end of the term of the lease, you will be in breach of your lease. The landlord, however, has a duty to mitigate (lessen or eliminate) his damages. He can do that by renting the apartment for the same amount of rent as you pay. As you said, the landlord will be happy to see you go because he can charge more rent.

Some landlords tell you that they can sue you for all of the rent that would be paid if you did not move out early. Not true. Others will attempt to keep your security deposit as damage for your breach. If you leave the apartment in the same condition (excepting normal wear and tear) and the landlord rents the place for the same amount you were paying, he has been unjustly enriched.

If you have a lease and you want to break it, I recommend that you make a deal with the landlord ahead of time. Before you give him a thirty-day notice, point out that you want to move and he will be making bank because you are vacating. Ask him to agree to release you of any claims he might have for your breach and to return you security deposit. Get the agreement in writing.

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My Landlord Said I Could Add Roommates, Then Changed His Mind

My Landlord Said I Could Add Roommates, Then Changed His Mind

My Landlord Said I Could Add Roommates, Then Changed His Mind

Add roommates.

I have lived in the same building for 5 years. It was built in 1913, has 64 units, and is a tax credit building. I am 38 years old, and am on Section 8. In the middle of last year the management rented an apartment through the Veterans Administration to a man who turned out to be a drug dealer. Drug addicts, dealers, and prostitutes started coming into the building. The man was evicted but the people found others in the building to let them in.

These people use the hallways as toilets, have sex in the hallways, sleep in the stairways, and regularly break into the building by both kicking in the front door and climbing up the fire escapes. The manager has done everything he can but the management company and the buildings owner refuses to hire full-time security even though the residents demand it.

People have tried to break into my apartment. And in January our maintenance man, who lives in the building, was assaulted. And out building has been cited by the police department. Is this enough to ask the landlord to pay for me to move (which is extremely hard being on Section 8)? Or what can I do to try to get this terrible situation dealt with?

You evidently don’t understand a basic tenet of life in the United States of America. If you’re poor, you must live in a crime-ridden shit hole.

If you haven’t already, you should start to develop a strategy to hold the building owner accountable by researching past complaints on the building. Go to the San Francisco Department of Building Inspection website: Permit Services > Online Permits and Complaints. You can enter your address to see if other tenants have made similar complaints.

You can also go to the San Francisco Superior Court website: Online Services > Case Name Search to understand what kinds of cases have been filed by and against the owner of the building.

Finally, a simple Google search of the address and owner made be helpful to provide additional information.

Since you confidentially provided your address, I did some online research of your building and found a number of court cases and complaints to the Department of Building Inspection. There was at least one news article that could shed some light about the current issues in the building. At the time the article was written, the tenants in the building seemed to be well organized.

You mention that the residents demanded tighter security and my research indicates that the resident have been organized in the past. The key to getting some action is to organize tenants in the building again. Document your complaints with police reports and photos depicting any defective security devices that can be immediately repaired or replaced. Without compromising your safety or risking an altercation, get photos of anyone engaging the activities you describe.

Organize a letter writing campaign that informs the owners of their obligations and remind them that they could be held liable if someone is assaulted in the building.

Call the City Attorney’s office, (415) 554-4700, to alert them about the security issues and the building owner’s negligence.

Join the San Francisco Tenants Union to get them to help to organize the tenants in the building.

You should complain to the Housing Authority since you are a Section 8 tenant.

You mention that the building is a “tax credit” building. If a building has been subsidized in some manner by a government entity, there may be contractual, ongoing requirements to maintain that subsidy. Find out how the building qualified for the “tax credit.” You may want to report your problems to the agency that oversees the building.

It is highly unlikely that your landlord will pay you to move. In fact, it will be difficult to get the landlord to do anything absent some pressure as I described above.

When you visit the Tenants Union you should pick up the approved attorneys list and discuss the feasibility of a lawsuit with several lawyers.

Remember, the more tenants involved, the better.

 

Call the Tenant Lawyers now for a free consultation.
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My (Ex) Girlfriend’s Moving Out, Will My Rent Be Going Up?

My (Ex) Girlfriend’s Moving Out, Will My Rent Be Going Up?

My (Ex) Girlfriend’s Moving Out, Will My Rent Be Going Up?

I moved into an apartment with my girlfriend 2.5 years ago. We signed a year-long lease as co-tenants and are now on a month to month. All rent checks come directly from me. The building was built long before 1979 and has about 20 units. The rent is $1850. 

We are now breaking up and she is going to move out. I want to stay in the apartment. Can the land lord increase my rent because she is leaving?

I didn’t edit your space between land and lord because it serves to remind us that, as tenants, we are always subject to the whims of a lord.

The answer to your question, however, is a flat out no. No, the landlord cannot increase your rent beyond the allowable increase set by the Rent Board because you are an original tenant on the lease. Reversing the situation, if you were moving out, your girlfriend could not receive a rent increase either. She too is an original tenant despite the fact that you wrote all the rent checks.

The Costa Hawkins Rent Housing Act, a heinous infringement upon local government and self determination which should be repealed, provides that a landlord can only increase the rent controlled rent upon a subsequent occupant. You’re in the clear as an original tenant.

You will also be able to get a roommate if you so desire because the Rent Ordinance allows for a one-for-one replacement of roommates. Be sure to follow the step-by-step provisions of San Francisco Rent Board Rules & Regulations §6.15A or §6.15B depending on the terms of your lease.

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Does My Landlord Need To Clean My Chimney?

Does My Landlord Need To Clean My Chimney?

Does My Landlord Need To Clean My Chimney?

I live in a 15 unit building built in the 1950s. I’ve been in my apartment for two years.  Already the fireplace is unusable because my place fills with smoke when I attempt to have a fire. I have no idea when the landlord last cleaned the chimney.  She did not indicate that when I moved in.

Who is responsible for cleaning my chimney, me or my landlord?  If my landlord, how often are they expected/required to clean it? Is it interval based, e.g. every five years?  Or on an as-needed basis, e.g. my apartment fills with smoke?

Have you ever seen Mary Poppins, the answer to your first question is easy–Dick Van Dyke, of course. At least that’s what your landlord will tell you.

While fireplaces aren’t primary sources of heat, their maintenance, repair and inspections are the responsibility of the landlord. Think about it, if a landlord has been warned about a malfunctioning chimney and a subsequent chimney fire burns down half the neighborhood, who is going to be sued?

We might not think about chimney fires much in San Francisco, but according to an American Red Cross article written in 2009, fireplaces and chimneys were the number one source of home heating equipment fires.

All of the publications I consulted recommended annual chimney inspections. Most of them point out that cleaning intervals largely depend upon use.

This depends a lot on how much you use your fireplace or stove. The National Fire Protection Association says, “Chimneys, fireplaces, and vents shall be inspected at least once a year for soundness, freedom from deposits, and correct clearances. Cleaning, maintenance, and repairs shall be done if necessary.”

The CSIA (Chimney Safety Institute of America) says that fireplaces should be cleaned when 1/8″ of sooty buildup is evident inside the chimney and flue system. If any glaze is appearing in the flue, cleaning should be done even if there is less than 1/8″ of build up. Any time an appreciable accumulation of soot and creosote occurs it can be enough to fuel a chimney fire that may damage the chimney and even spread to the roof and home. Furnace flue systems also require cleaning, so don’t neglect regular cleaning of those venting systems.

If you are using the fireplace correctly and smoke is still billowing into your apartment, then it looks like a chimney cleaning is in order.

Certainly, you should inform your landlord about the problem. If she starts humming “Chim Chim Cheree” when you ask her to fix it, consider filing a substantial decrease in services petition at the Rent Board.

If you file a petition at the Rent Board you will have to establish that the loss of the fireplace is a substantial decrease in services. You will need to prove that the fireplace and its use has value. Here are are few things to discuss:

  1. The fireplace in the unit is unique. It was one of the factors you considered when you rent the unit.
  2. The landlord factored in the increased value of the fireplace to determine the initial rent.
  3. The fireplace is a secondary heat source.
  4. Cleaning the fireplace will alleviate a fire hazard.

You will need to be thorough. At first blush, the person who decides your case could conclude that the fireplace is a luxury that you don’t really need. You must be prepared to argue why loss of use of the fireplace is more than simply losing something you didn’t need in the first place.

If you need to file, take all of your evidence to the San Francisco Tenants Union to discuss your case with a counselor.

Call the Tenant Lawyers now for a free consultation.
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My Landlord Said I Could Add Roommates, Then Changed His Mind

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

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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My Landlord Said I Could Add Roommates, Then Changed His Mind

I Think I Have An Illegal Clause In My Lease

I Think I Have An Illegal Clause In My Lease

My father, brother, and I have lived in a three-bedroom rent-controlled flat in SF for the past six years. My brother and father are going to move out in a few months, but I plan to stay. In order to pay the rent, however, I’m going to need one or two roommates, but the lease says (in bold) “even if one tenant leaves, no replacement tenant(s) will be permitted and no additional occupant will be allowed in the unit.”

I’m “named” on the lease as “son #1” and moved in (with the landlord’s knowledge) at the same time as my brother and father.

Do I qualify as an “original occupant”? If so, do I just start paying the landlord rent once the rest of my family moves? Or do I have to sign a new lease, etc.?

As for roommates, my understanding is that I can have up to two roommates, with the landlord’s permission, per Section 6.15A.

We get along great with the landlord; I just want to ensure that I do everything “by the book” so I don’t put myself or my future roommate(s) at risk of being evicted or otherwise souring our relationship with the landlord.

Good question. I don’t often get a chance to address this topic. What do you do if you have an illegal clause in your lease?

Let me pose a hypothetical question. You’re about to sign a lease for a unit in a San Francisco building built before 1979 with multiple, legal units. It’s the perfect place—a tastefully remodeled, three-bedroom apartment overlooking Dolores Park with a garage, view and a nice deck in the back—$1,500.00 per month. Ah, the good ol’ days…

A clause in the lease, however, states: “Tenant acknowledges that his or her tenancy is subject to the San Francisco Rent Ordinance but waives any and all rights he or she may have under the Ordinance, including but not limited to any right to contest rent increases over and above the annual allowable increases imposed by the Rent Ordinance.”

Do you sign the lease and move in? Hell, yes you do! When the landlord increases the rent to $4,000.00 per month next year, you petition the Rent Board alleging an illegal rent increase and you win.

There are many, less obvious, illegal clauses that one can find in a lease. For example, a tenant cannot waive his or her right to a habitable premises in a lease (Civil Code §1953). Nor can a lease designate a cleaning fee as “non-refundable” (Civil Code §1950.5(m)).

The clause prohibiting the addition of replacement tenants is illegal unless the landlord reduces your rent accordingly. In other words, the landlord could refuse to allow you to sublet to one-for-one replacement roommates, but you can file a petition at the Rent Board to reduce your rent by two-thirds or so.

Yes, follow the procedures outlined in Rent Board Rules & Regulations §6.15A to request new roommates.

If your landlord does not respond, or if he unreasonably refuses your request, citing the illegal clause in the lease, file a petition to determine your lawful rent at the Rent Board. Be prepared to prove that you are Son #1.

I truly hope I’m wrong here, but in my experience, whenever a tenant challenges a landlord’s absolute authority and control, the relationship sours.

Call the Tenant Lawyers now for a free consultation.
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