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Do I Risk Losing My Apartment If I Take An Out Of Town Temporary Job?

Do I Risk Losing My Apartment If I Take An Out Of Town Temporary Job?

by | Nov 15, 2012 | Tenant Law

Do I Risk Losing My Apartment If I Take An Out Of Town Temporary Job?

Out of town job,

I live in a Rent Controlled building near downtown. I have lived there more than 5 years but less than 10.

Years after I moved in my partner and I filed for a Domestic Partnership. We moved him in without much trouble, though the landlord instructed that he was an approved occupant only, and rent was to be paid by me only. Which was fine.

I got a job in LA and will be working and living down there for a while. My partner will continue to work and live in San Francisco in “my apartment”. Since this contract job in LA is likely to last only from between 3-24 months, I don’t want to give my apartment up. I likely will return to San Francisco every month for a weekend, and my partner will of course be here full time.

I will continue to pay the rent from my bank account. If the contract lasts more than 6 months, I probably will get small apartment in LA so I don’t have to live out of hotels.

My question is, at what point can my landlord consider me to be “no longer living” in the apartment? Is there a threshold such as 6 months or a year? I remember reading somewhere that rent control ceases to apply if you vacate the apartment for a certain period of time. Would returning for a few weeks at a time reset any clock that applies to these potential rules?

My relationship with my landlord is neutral, as we have never had much reason to interact over the years. I pay my rent on time, he fixes the sink when it leaks etc. But I have no allusions that he is my friend or has any loyalty to me. With rising rents across the city, I don’t want to give him any opening to turn from a fair landlord to a greedy one. My preference would be to not go out of my way to inform him of my new job, because again, if I am not breaking the lease or rent law, the less he knows about my personal life the better. I am willing to forgo this new job if it will cause me to be in violation of my lease, but of course my preference would be to find a solution.

Rent Board Rules & Regulations §1.21 foresees this issue. Rules & Regulations §1.21 defines tenant in occupancy: “Occupancy does not require that the individual be physically present in the unit or units at all times or continuously, but the unit or units must be the tenant’s usual place of return.”

Petitions in which landlords allege that a master tenant no longer resides in a unit as her principal place of residence are decided on a case-by-case basis, considering the applicable facts. There are no legal thresholds defining an exact period of time after which a tenant is no longer considered to occupy a unit—no set rules or laws that require a hearing officer to automatically rule in favor of the landlord. Clearly, though, if a tenant hasn’t lived in her apartment for many years, the hearing officer will take a long hard at the tenant’s explanation.

Think of it this way: If you were an active member of the military and you were deployed overseas, would you have to worry about losing your home while you’re gone? Of course not. Certainly, military deployment is not voluntary and there are federal laws that protect service men and women from eviction while on duty, but the issue is still analogous.

Given the facts as you relate them, you shouldn’t have any problem “moving” to Los Angeles to accept a contract that is temporary. You can probably argue that your job is necessary, financially and career advancement-wise.

You will also be protected because your partner still lives in the unit. Your partner is an approved subtenant based on Rules & Regulations §6.15D as well as the landlord’s overt consent. The landlord cannot evict your partner while you’re gone. And your partner is presumably taking care of the day-to-day issues and can alert you to come back in case the landlord files a petition at the Rent Board.

You don’t need to inform the landlord about your decision unless you feel there’s a benefit to that.

Feel free to accept the position, with the caveat that you may have to come back to the City to justify your decision. More information about Rules & Regulations §1.21 petitions can be found here.

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My Absentee Master Tenant Was Scamming Me And My Landlord

My Absentee Master Tenant Was Scamming Me And My Landlord

by | Nov 8, 2012 | Roommates

My Absentee Master Tenant Was Scamming Me And My Landlord

So in December 2011 I started living in an apt with 3 other girls in SF. Lo and behold I found out that the man who we were paying our rent to was the master tenant not an actual landlord and that he actually lived in San Diego. So since he was there he designated one of the roommates as his spokesperson. She kept in contact with him about any problems with the apartment was in charge of finding new roommates etc. She told me that the way deposits work is that the new roommate writes the deposit out to the old roommate that moves out and whenever I move out the same would be done for me. I have this all in writing in my original rental agreement that I was given.

Now at the end of July 2012 I ended up moving to Chicago for my job. When I asked his “spokesperson” about when I would receive my deposit back she told me that it wasn’t her responsibility and for me to deal with the master tenant. When I did he told her no its your (his spokesperson) job since you deal with the apartment’s business. I have not heard from her since then. In fact she ended up abandoning the apt without notice and supposedly no one has seen her since. It has been almost 3 months and I still do not have my deposit.

I have been in constant contact with the master tenant and he constantly says that he hasn’t heard anything from the landlord and that he doesn’t know what to do. I felt bad for him until I received a forwarded letter in Chicago about a landlords petition where we (I was still included on the list even though i moved out already) were supposed to show up to a court hearing. All of our names were included even though it was dated almost 2 months after I left. Clearly the landlord is not sitting idly by. I brought it up to the master tenant and he says he had no idea and never received a notice (although his address included with his name on the petition was the same address we mailed our checks to.)

Since then I have contacted the SF Rent Board and was told I had the right to bring the master tenant to small claims court. When I brought it up to him in a very civil manner (I even gave him until the end of the month and have the email as proof!) he responded very nasty saying that I could bring him to court but he wouldn’t ever pay me so what good would that do and that I didn’t pay the deposit to him so what could I possibly do to him.

I find it hard to believe that somebody that is not doing all that he can to get us our deposit back is able to just do that with no sort of consequence. What can I do?

I find it hard to believe that you can actually muster up some concern for this sociopath after he blatantly ripped you off.

Before I tell you that your chances of recovering your security deposit are only slightly better than Mitt Zomney’s chances of winning last night’s election, you should call the Rent Board again and find out if decision was made on the landlord’s petition and get a copy of that decision.

I think the landlord probably discovered that the master tenant did not live in the unit and was likely making a profit on the rent by overcharging the roommates. The landlord probably filed a petition under Rent Board Rules & Regulations §1.21 alleging his right to increase the rent to market rate based upon the fact that the master tenant did not reside in the unit.

I’ve written about this issue several times. See, for example, “Tenant Troubles: Why An Absentee Master Tenant Is A Bad Idea” and “Bad Master Tenant.”

Simply put, your ex-master tenant is a liar. He received the notice from the Rent Board and he never talked to the landlord about getting your money.

Essentially a landlord can collect a security deposit at the inception of the tenancy, when the tenant or tenants sign a lease. The deposit is held, as security against damage, nonpayment of rent, etc. Even if roommates come and go, the landlord does not have to return the security deposit until the tenancy ends, until a new lease is signed with, presumably, new tenants. The building owner/landlord has no duty to return your portion of the security deposit.

The master tenant knew this. He would never jeopardize his little enterprise by contacting the landlord for you.

It is also likely that the lease provided that he had to seek the landlord’s permission to sublet. Do think he did that? You’re actually lucky that weren’t named in an unlawful detainer (eviction lawsuit). I recommend that you contact the real landlord and inform him that you moved out in July just in case he decides to evict the rest of the roommates.

Normally I would advise you to sue ’em all and let the court sort it out. But master tenants rarely have assets or jobs that you can lien and/or attach. That’s why they set up these schemes in the first place. To complicate matters, the roommate/manager (thief number 2) absconded with your security deposit and you don’t know where she is to be able to serve her with a summons to appear in Small Claims Court.

You don’t mention the amount of your deposit, nor do you say if you still live in Chicago. Each of those factors should be considered before you file a claim. Will the amount of the security deposit justify flying back to California to present your case when it’s likely you’ll be suing two deadbeats?

If you want to find out more about the small claims process read Everybody’s Guide to Small Claims Court from Nolo Press.

Sweet Jesus, Mary and Joseph! Tenants: Never, ever rent a room from an absentee master tenant!

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My Boyfriend Moved Out, And My Rent Went Up

My Boyfriend Moved Out, And My Rent Went Up

by | Nov 1, 2012 | Tenant Law

My Boyfriend Moved Out, And My Rent Went Up

I have a question about rental/tenant law for a multi-unit building in San Francisco that was built in the 1920s. When a person who was not on the original lease moves in and starts paying checks to a manager in their name, does that give them status as an official tenant for whom the rent cannot be raised? Basically, I moved into the apartment of a man who I was dating at the time.

He moved to LA, and I began to pay rental checks to the manager. About 2 years after the original tenant moved out, it came to the attention of the landlord that I was occupying the apartment and her lawyer sent me a letter raising the rent.

At that time, it was unclear to me whether I was considered an official tenant for whom the rent could not be raised – after all, the landlord’s agent, the manager, had been accepting my checks.

To keep things amicable, I negotiated a slightly lower rental increase (an increase of about 10% or $150/month) and signed a new lease. I’m wondering if I was a sucker and should have held out for maintaining the original rent?

No, you were not a sucker! As a practicing attorney, I have learned (sometimes the hard way) that outcomes in trial or other proceedings like Rent Board hearings are often uncertain. You simply settled your case without going to arbitration. Remember, about 95% of all court litigation settles before trial. You are not a sucker, you’re simply a pragmatist.

Now, let’s do some Wednesday morning quarterbacking.

There are two statutes that come into play when analyzing the facts of your case. If you had gone to arbitration, the landlord would have relied on The Costa Hawkins Rental Housing Act (Ca. Civil Code sections 1954.50-1954.535) to justify the rent increase. Specifically section 1954.53(d)(4) provides:

“Acceptance of rent by the owner shall not operate as a waiver or otherwise prevent enforcement of a covenant prohibiting sublease or assignment or as a waiver of an owner’s rights to establish the initial rental rate unless the owner has received written notice from the tenant that is party to the agreement and thereafter accepted rent.”

The landlord would argue that you are not an original occupant and, despite the fact that you paid rent directly to her agent, she did not waive his right to increase the rent.

By the way, Costa Hawkins should be repealed. I believe that all tenants should email their legislators every hour of every day demanding a repeal of Costa-Hawkins so that rent control can be uniformly applied to all buildings in San Francisco and other rent controlled jurisdictions.

Your counter argument would derive from San Francisco Rent Board Rules & Regulations section 6.14(c)(1-3). A subsequent occupant can show that a landlord , in fact, waived his right to increase the rent by:

“(1) Affirmatively representing to the subsequent occupant that he/she may remain in possession of the unit at the same rental rate charged to the original occupant(s); or

(2) Failing, within 90 days of receipt of written notice that the last original occupant is going to vacate the rental unit or actual knowledge that the last original occupant no longer permanently resides at the unit, whichever is later, to serve written notice of a rent increase or a reservation of the right to increase the rent at a later date; or

(3) Receiving written notice from an original occupant of the subsequent occupant’s occupancy and thereafter accepting rent unless, within 90 days of said acceptance of rent, the landlord reserved the right to increase the rent at a later date.”

(I’m assuming that inception of the original tenancy was after January 1, 1996 and that your BF moved out on or after April 25, 2000.)

In a hearing, you would argue that the landlord agent’s conduct of accepting rent from you for two years operates as a waiver to her right to increase the rent. Hopefully, you could add facts like, “I told the manage that my ex moved out; I handed my check to the manager every month; I made numerous repair quests, etc.”

I’ve seen many of these cases at the Rent Board and they all depend on the facts. Earlier this month we denied an appeal from a landlord because the facts were clear the his agent had accepted the subsequent occupant as a an ordinal tenant. But I have seen cases in which the landlord prevails with, frankly, similar but not as compelling facts.

So, no, you weren’t a sucker settling a case that, conceivably, you could have lost.

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Am I Still The Master Tenant If I Moved Out Of My Apartment For Six Years?

Am I Still The Master Tenant If I Moved Out Of My Apartment For Six Years?

by | Oct 12, 2012 | Roommates

Am I Still The Master Tenant If I Moved Out Of My Apartment For Six Years?

I live in an apartment building that has six units, built in 1907, in the Mission, near Dolores Park, in San Francisco. My brother and I and a 3rd roommate signed a one-year lease in 2004. In the last 8 years our apartment has been a revolving door of tenants, each we have subleased without the landlord knowing. They are very hands off and don’t ever visit or seem to care about the property as long as they get a check each month.

In 2005, I moved out along with the 3rd roommate on the lease, leaving my brother as the only original lease-signer living in the apartment with two subletters. We never told the landlord.

Fast forward 6 years and I move back in to the apartment, around January 2011, with my brother and a 3rd roommate not on the lease, let’s call her Jamie. Sorry as this gets complicated. My brother moves out in August 2011 and now I am writing the check to the landlord every month for the entire rent amount and I am now the only original lease-signer living here.

I subleased to somebody else, let’s call him John, when my brother moved out, and now our relationship is very rocky. I want to kick John out, and he wants me to leave. I am unsure of my rights and his rights at the moment.

He wants me to leave, but I think that since I’m the only original lease-signer still living here, if I left, Jamie and John would probably be kicked out and the rent would increase; if my landlord even allowed them to stay or sign a new lease.

As far as my landlord knows, I’ve been living in the apartment since my original lease signing, with my brother and the original 3rd roommate, and they have no idea other people live here other than us. This apartment is rent controlled as well.

So, what happens if I leave and nobody on the original lease lives here to write them a check? Am I within my rights to evict John who I’ve been subletting for the past year? What happens if John and I cannot resolve who leaves the apartment, and neither of us will leave willingly?

Whew! Before I answer your question, I have to tell you, “Warning! Warning! Danger! Danger!” If your landlord gets wind of these facts, he may be inclined, given the current rental market, to evict you for illegal subletting. If you plan to stay in the apartment, you should begin to seek permission to sublet for each new roommate you you take on. But that’s for the future.

Technically you are not an original occupant because you moved out for six years. If you find yourself in a Rent Board hearing of some sort, you will not be able to testify, under oath, that you are an original occupant. That could be a problem. You won’t have a great defense based upon the fact that the landlord has continued to accept your rent checks. The landlord can claim that he was ignorant of the facts and that he would not have accepted your checks had he known the truth.

Hypotheticals aside, when you vacate, the landlord will very likely assume that you are the last remaining original tenant. He will certainly be able to increase the rent to market rate pursuant to Rent Board Rules & Regulations §6.14.

Moreover, the roommates are unapproved subtenants and the landlord can evict them using Rent Ordinance §37.9(a)(7) which articulates a just cause allowing a landlord to evict holdover subtenants if “[t]he tenant holding at the end of the term of the oral or written agreement is a subtenant not approved by the landlord.”

You are correct in your first assumption.

I don’t think you have the right to evict John because you don’t have the standing to do so. In law, standing means the status of being qualified to bring a legal matter before a court because a plaintiff has a sufficient and protectable interest in its outcome. Only a master tenant can evict a subtenant. Technically speaking you are a master tenant, but you cannot demonstrate that you are an original occupant because you moved out for six years, unless you lie. Problem.

Even if you do have standing to evict John, unless he signed a sublease or other document that clearly stated his subtenancy was exempt from the just cause provisions of the Rent Ordinance, you cannot simply serve him a notice to vacate without cause. (See Rent Board Rules & Regulations §6.15C.)

As you presented them, the facts don’t seem to rise to the level of a just cause under the Rent Ordinance.

So, no, I don’t think you can evict John, but he cannot evict you either.

Finally, if you and John can’t resolve the issues between you, it looks like somebody’s gonna have to move. But to paraphrase the late Rodney King, Why can’t you all just get along?

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Does My Landlord Have To Fix My Broken Dishwasher?

Does My Landlord Have To Fix My Broken Dishwasher?

by | Oct 4, 2012 | Tenant Law

Does My Landlord Have To Fix My Broken Dishwasher?

My roommate and I have been living in our Victorian flat for 2.5 years. It was built in 1900, has 3 units, and all are owned privately by the same woman. She installed new appliances a couple years before we moved in, but we are well equipped with a dishwasher and a washer and dryer.

Our dishwasher recently stopped working and when I reached out to her to see if someone could come take a look, she said that it was our responsibility to pay for repairs. I asked about a warranty for the dishwasher or if there was repair history, and she said no. I don’t think we should have to pay for repairs when we don’t technically own the dishwasher, and we would practically pay for her updates since we wouldn’t take it with us when we move out. But at the same time, I know that not all apartments in the city come with dishwashers, as they are considered more of a “luxury item.”

Do you have any advice?

When you initially rent an apartment, any amenities that come with the apartment are factors that determine the unit’s initial value. For example, a top-floor apartment with a view may be more expensive than an apartment in the same building without a view. Amenities and services are factors that prospective tenants use to make their decision to rent.

A dishwasher is a housing service provided as part of your initial rent. Who knows, you may have decided to rent the apartment specifically because it had a dishwasher. You are paying a portion of your rent, albeit a small one, for working dishwasher and it is the landlord’s responsibility to repair the dishwasher when it breaks.

Your tenancy is governed by the San Francisco Rent Ordinance. Rent Ordinance §37.2(g) defines housing services:

“Services provided by the landlord connected with the use or occupancy of a rental unit including, but not limited to: quiet enjoyment of the premises, without harassment by the landlord as provided in Section 37.10B; repairs; replacement; maintenance; painting; light; heat; water; elevator service; laundry facilities and privileges; janitor service; refuse removal; furnishings; telephone; parking; rights permitted the tenant by agreement[…]”

Take a look at your lease. Hopefully the dishwasher is specifically mentioned as a service provided by the landlord, but even if it is not, you should not be deterred.

You should write the landlord a letter explaining that your dishwasher needs to be repaired and point out that you will file a petition for a decrease in services with the Rent Board to reduce your rent accordingly until the repairs are made. Give the landlord a date certain to repair. If she refuses or fails to do so, file the petition.

Is this a luxury problem? Sure, in that the ceiling isn’t caving in and it will soon be raining in your kitchen. Nevertheless, your landlord is in breach of the lease. You are not receiving the services that you paid for and it’s worth making the landlord perform her obligation under the contract.

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My Master Tenant’s Fallen In Love, Am I Screwed?

My Master Tenant’s Fallen In Love, Am I Screwed?

by | Sep 20, 2012 | Costa Hawkins, Roommates

My Master Tenant’s Fallen In Love, Am I Screwed?

Renters wait for hours to apply for a Tenderloin studio apartment priced at $2500.00 per month.

Master tenant in love

So in the midst of Rentpocalypse 2012, I managed to score a nice room in a spacious flat at a reasonable rate. I know, right? It’s been a good year. Concurrently, however, the master tenant has fallen a little head-over-heels for someone and has increasingly been spending time at their place. As in enough time that even her cat spends more nights over there than in the apartment lately.

I’m thinking there’s a non-zero possibility that she could be moving out, and possibly soon. Not to push my already good luck, but I was wondering: As a subtenant, what are my rights if she gives notice? Would I have to negotiate a new lease entirely? Would I inherit any rent protections? The only interaction I’ve had with the landlord, in writing or otherwise, was a check written out to him personally for August rent, which he cashed.

Master tenant in love? Welcome to Rentpocalypse 2012! Have a seat, but don’t stay too long.

As you might guess, this is a common scenario, but at least you are in the position to gather information and make some plans.

You don’t mention how rent the landlord is receiving for the flat. If your roommate has leased the unit for fifteen years and the rent is $2,000 per month below market, the landlord will have plenty of incentive to increase the rent if your roommate departs. On the other hand, your roommate will have plenty of incentive to keep the place until she is absolutely certain she wants to move.

You need to speak to your roommate and ask her if she has any future plans to move. Point out that it is important to understand her plans because it’s likely that you will either have to pay increased rent or move as well. Read last week’s column to understand why.

Essentially you are a subsequent occupant as defined by Rent Board Rule & Regulations §6.14(c). Your landlord will be entitled to increase the rent when you vacate.

I don’t put too much stock in the argument that because the landlord cashed a couple of your checks, you’ve established a new tenancy. The Costa Hawkins Rent Housing Act (which should be repealed) in Civil Code §1954.53(d)(4) states:

“Acceptance of rent by the owner shall not operate as a waiver or otherwise prevent enforcement of a covenant prohibiting sublease or assignment or as a waiver of an owner’s rights to establish the initial rental rate unless the owner has received written notice from the tenant that is party to the agreement and thereafter accepted rent.”

You should keep paying the rent to the landlord because the longer that goes, the stronger the argument that you are a party to the agreement. But you should not have any illusion that you can keep renting the flat at the current rate simply because you paid rent directly to the landlord.

Go to the San Francisco Tenants Union to more fully discuss your potential issue.

More importantly, talk to your roommate. Hopefully, she doesn’t have any immediate plans to move. Knock on wood. Maybe you can ride out Rentpocalypse.

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Can I Put My Apartment On Airbnb Without Informing My Landlord?

Can I Put My Apartment On Airbnb Without Informing My Landlord?

by | Aug 9, 2012 | Roommates

Can I Put My Apartment On Airbnb Without Informing My Landlord?

I’d like to list the apartment I rent (long-time, rent-stabilized) on Airbnb in hopes that someone staying in my apartment while I am on vacation will help cover the expense of my trip. It is not my intention to make a business of doing this, as some renters and most especially some landlords seem to be doing. I just want to offer my place to someone who will enjoy it while I am away – I once did a swap and many times have had house/cat sitters while on vacation. But obviously this is different in that it involves money changing hands and through a third party.

I’m pretty sure my lease says no “subletting,” but is what I want to do actually “subletting” if I am not assigning the lease to someone else, just taking money from a house guest?

If this would be a lease violation on the subletting clause, what is the real risk to me should what I am doing come to the attention of the owner? If they would take an action, would it be a final action (unlawful detainer) or more like a cease-and-desist, warning not to do this type of thing? (I’m actually not sure the current owners are in possession of a copy of my lease post-Lembi and receivership, but in case they are…)

I am aware of pending legislation regarding taxes on airbnb rentals – which would be fine with me – but I’m not clear about how what is being proposed would apply to a situation like mine.

Short answer: If your lease requires the landlord’s written permission to sublet, get the landlord’s written permission and have at it.

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.

So you can understand why I get pissed off when I hear that a landlord accuses a tenant of illegally subletting when the tenant’s partner frequently stays overnight. No rent is changing hands. Landlords often use this ploy to embroil tenants in costly ligation and don’t care if the accusation is true or not. It’s almost always a pretext to remove a rent controlled tenant to increase the rent–a dishonorable, scumbag pretext.

If I was your landlord, I’d give you permission to sublet your apartment so that you could take a vacation. I think vacations are a necessary part of life. But I’m not your landlord and, never will be for that matter. If you read my column, you know that I believe that many landlords can be parasites, and that being a landlord can be a dishonorable profession, even if it’s temporary.

I also think that the City should enforce a ban on renting apartments meant for tenants to tourists, essentially removing much needed housing stock from the market. It’s another dishonorable ploy to violate our rent control laws.

Notice that I’ve repeatedly invoked the concept of honor. It’s also dishonorable to try to go behind the landlord’s back to sublet your apartment without his permission.

If you read my column, you also know that I rail away against master tenants who sublet their apartments because, when they get caught, unsuspecting subtenants get evicted.

What can happen if you are caught subletting without permission? Plenty. Let’s say you’re at the base camp of Mount Everest and you get an urgent email (providing there is reception) from your “guest” telling you that the landlord has served a three-day notice to cure or quit. What are you going to do? Tell the guest to get out? Put him up in a hotel, tell the sherpas to take a hike and book a quick flight from Kathmandu to deal with this issue?

Meanwhile the landlord can develop a fairly solid case to evict you. Why? Well, for starters, he has a copy of the ad you put on Airbnb.

How much money did you think you were going to save?

That’s the point. Almost all dishonorable decisions these days are made in the name of saving or making money.

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