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Does My Illegal In-Law Make My Single Family House Into A Rent-Controlled Building?

Does My Illegal In-Law Make My Single Family House Into A Rent-Controlled Building?

by | Sep 29, 2011 | Illegal Unit

Does My Illegal In-Law Make My Single Family House Into A Rent-Controlled Building?

I currently rent a single family home with in-law unit (more than likely illegal) that was built around 1930.

I moved in about a year ago and my lease is just about up.

My lease states that after the first year, my rent is supposed to go up $100, which isn’t that big of a deal, but now my landlord wants to raise the rent by $300 (12%).

My lease also states that I am allowed to sublet the in-law unit which I am currently doing.

The Housing Rights Committee’s website states: “If you live in a single-family dwelling and there is an in-law unit attached to it, or a garage or basement apartment (whether or not this unit is legal), then your building is considered to have two units and you are fully protected under rent control.”

This makes me believe that I am fully covered under rent control.

The SF Tenants Union website states: “Annual Rent Increase Effective 3/1/11-2/28/12: 0.5%” Is this correct?

Should I consider speaking to a lawyer? I want to have all my facts straight before speaking to my landlord.

The Housing Rights Committee is correct. A house, built before 1979, with an illegal in-law unit is a rent controlled unit for purposes of both the annual allowable restrictions on rent increases and for purposes of “just cause” evictions.

Rent Board Rules & Regulations §1.17 provides: “Rental Unit means a residential dwelling unit, regardless of zoning or legal status, in the City and County of San Francisco and all housing services, privileges, furnishings (including parking facilities supplied in connection with the use or occupancy of such unit), which is made available by agreement for residential occupancy by a tenant in consideration of the payment of rent.” Of course, there are several exceptions, but an illegal in-law in not one of them.

To determine if the in-law is illegal please read, “Tenant Troubles: Can I Be Evicted Just Because My Apartment’s An Illegal Unit?”

It seems that you should be able to make a strong case that, regardless of the provision in your lease that requires an illegal rent increase, your rent can only be increased by .05%

So this is a no-brainer, right? Not so fast. It’s clear to me that the landlord is going to argue that he rented the whole house to you. A single-family dwelling is not covered by the rent limitations of the Rent Ordinance. He’ll claim that subletting the illegal unit is your problem, not his. That’s why he wrote the lease as he did in the first place.

Does that argument win? I think it’s unlikely. Should you seek some advice before you assert your rights? Absolutely.

I don’t know if you need to talk to a lawyer, but you should at least bring your lease and all document related to your tenancy to either the San Francisco Tenants Union or the Housing Rights Committee and have a counselor read your lease to determine its impact upon your rights.

What’s the lesson here for tenants? Don’t do your landlord’s dirty work for him.

I think it’s fair to say that the landlord, in this case, knows the in-law is illegal. He allowed you to sublet it so that he could increase the rent on the house. If, for some reason, the tenant downstairs is injured due to inherent safety issues in an illegal unit, you’re going to be named in the lawsuit along with the landlord. If the tenant reports the unit to the Department of Building Inspection, sure, the landlord has the duty to remove the unit. But if you didn’t tell the sub-tenant that the unit was illegal, you may be on the hook for a fraud allegation.

Clearly there were some advantages to your arrangement with the landlord. The ability to choose the downstairs tenant is an obvious one. However, you should have added a clause in your lease indemnifying you from any problems or damages that could arise from sub-leasing the illegal unit.

You have stepped into the landlord’s shoes. You rent the unit independently and you have assumed many of the risks. Why do you wanna be a !$&#@!$ landlord anyway?

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Our Landlord’s Sawing Is Making Life Miserable

Our Landlord’s Sawing Is Making Life Miserable

by | Sep 8, 2011 | Habitability

Our Landlord’s Sawing Is Making Life Miserable

Landlord’s sawing.

For 16 years my wife and I have lived in the lower unit of a rent-controlled two-unit Victorian flat, built around 1875 in Hayes Valley.

My landlord has a woodworking shop in the basement. Several days a week he is there from around 1:00 PM to about 5:00 PM, using a table saw, sander, and other power tools which are very loud.
I work from home and my office is directly above his table saw.

Because our rent is so reasonable, and we have always been on very good terms with him, I am hesitant to complain about the noise.

Furthermore, he is a retired lawyer.

I feel that it is time to confront him and want to know where I stand legally before I do this.

Also, my wife suffers from MS and often requires a nap during the day to relieve her constant fatigue.

How should I approach this issue?

In San Francisco various city departments enforce specific areas of the San Francisco Noise Control Ordinance, Article 29, San Francisco Police Code. The Department of Public Health provides a list of the departments and noise enforcement for which they are responsible. For example, the Department of Building Inspection looks into construction noise and the Police Department is responsible for stereo, television, music, party, and animal noise.

Your landlord isn’t really making construction noise nor is he blasting his stereo. I think his noise is more related to “personal” noise that interferes with quiet enjoyment related to enforcement by the Police Department. In my experience, the cops are going to be reticent about investigating the noise as you describe it. Don’t call the cops yet.

Let’s step back for a moment. You say, “Because our rent is so reasonable, and we have always been on very good terms with him, I am hesitant to complain about the noise.” Here’s a learning moment for us all. Let’s take your statement apart.

First, your rent is reasonable because it is regulated by the San Francisco Rent Ordinance. That has nothing to do with your landlord. He may not like it, but he may not care if he has owned the building for a long time and he’s making a reasonable return on his investment. He certainly cannot evict you because you complain about the noise.

Second, you’re on good terms with the landlord. Is the only reason you’re on good terms because your rent is low? If that is true, it suggests that your civility is predicated upon fear. I guess one could make the argument that all human civility is based upon fear of punishment, but we have been out of the caves for awhile now. I have a feeling that you are just treating the landlord as would treat others–with consideration. Guess what? Your landlord doesn’t know why you’re civil to him, he just knows that you are civil.

One of the biggest problems for landlord and tenant relationships is that both landlords and tenants often have ulterior motives to be civil, rather than just respecting the relationship for what it is–a business relationship. If you have an ulterior motive for acting civilly, but you’re really just seething with anger and hate, you’re likely practicing a passive-aggressive approach that is destined to thwart any rational discussion with the landlord. That’s a waste of human energy more properly reserved for lawyers.

You have an opportunity to be powerful here. I’m not talking about the power of, “I’m going to sue your ass, if you don’t stop building your stupid little toy trains or whatever the hell you’re sawing.” I’m talking about the power of genuine human interaction.

Retired lawyers can be good communicators and maybe, just maybe, they are sick and tired of the adversarial process. I often would rather deal with older, more experienced lawyers because they don’t need to posture and they understand the value of settling an issue rather than duking it out.

I suggest that you simply talk to the landlord. Tell him that you didn’t have any problem with his work in the garage before (if that’s true.) Tell him that you work more from home now and that your wife is sick and needs to sleep during the day. Listen to him. Try to work out a schedule that will accommodate both your needs.

If the landlord acts like an asshole, walk away. Then look into writing him a request for a reasonable accommodation based on your wife’s disability. Request that he limit his noise during certain hours of the day.

Go to the San Francisco Tenants Union to discuss other options including filing a complaint with the California Department of Fair Housing and Employment.

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My Landlord Won’t Let My Boyfriend Move In

My Landlord Won’t Let My Boyfriend Move In

by | Sep 1, 2011 | Roommates

My Landlord Won’t Let My Boyfriend Move In

BIG fan of the column! Was feeling pretty good about having my boyfriend move into my apartment after your columns the last few weeks, until I hit a snag: my landlord said NO when I asked for permission.

Taking special care to follow every one of your instructions from the past two weeks, I asked my landlord for permission for my boyfriend to move in. I live in a one-bedroom, rent controlled apartment. I pay less than a tenant on a lower floor who has lived there longer. The landlord recently (less than 6 months ago) rented the unit across from me for almost $400 more a month than I’m paying… So when I asked for permission (in writing) his answer was:

“I have reviewed the lease and made a determination. Unfortunately, I must deny your request because the lease is clear on this type of situation. It is my option and wish not to amend our current agreement as set forth by the lease terms. “

There is a use/occupancy clause that says: “Tenant must have the prior written approval of owner if an invitee of Tenant will be present at the premises more than seven consecutive nights or fifteen days in a calendar year.” and

“Assignment and Subletting: Tenant may not assign this agreement nor sublet the whole or any portion of the Premises. This is a blanket prohibition which means that Tenant may not have any other person reside at the premises… no additional tenant or occupant will be allowed in the unit regardless of the relationship between tenant and said proposed occupant.”

The landlord and I talked on the phone and he wouldn’t point to any reason why he is saying no, and he gave me his lawyer’s number to call if I had questions. I asked if he would be willing to do a NEW lease for the two of us (saying “I understand I probably pay the least amount of rent in the building”) and he was not open to that either.

Landlord and I have had a decent relationship thus far. His daughter just moved in below me, so I’m worried that she will find a way to give him just cause (noise) if I make a fuss, or that she will rat me out if he moves in anyway, especially now that the landlord knows we were planning it.
The boyfriend is going to Asia for several months after his lease ends next month, so we don’t have to worry about this until December, when he was going to move in. We were going to look for another place when he got back (one with parking) so it’s not like we were planning on staying forever, but my landlord is being so shady about it that now I want to.

I was planning on getting a recommendation from him in writing before I challenge this nonsense later in the year, so when I am looking to move out, I can worry less about him not recommending me to future landlords. Anything else we can do?

Should I just let the boyfriend move in and try to say he can’t evict me on those grounds? I know I don’t want to be a defendant but I also don’t want to give him the pleasure of having me move out early so he can jack up the rent.

What to do?

I’m happy that reading my columns inspired you to ask the landlord for permission to sublet. You now understand his position on the issue. What if he is correct?

In this case, the landlord may be correct.

The last two TT columns have discussed the effect of replacing a roommate when the lease provides for a landlord’s written consent to do so. In your case the lease absolutely prohibits subletting. If you never had a roommate, you will not be replacing one.

San Francisco Rent Board Rules & Regulations §6.15A is applicable to these facts. The first few paragraphs state:
“This Section 6.15A applies only when a lease or rental agreement includes an absolute prohibition against subletting and assignment.

(a) For agreements entered into on or after May 25, 1998, breach of an absolute prohibition against subletting or assignment may constitute a ground for termination of tenancy pursuant to, and subject to the requirements of, Section 37.9(a)(2) and subsection (b) below, only if such prohibition was adequately disclosed to and agreed to by the tenant at the commencement of the tenancy. For purposes of this subsection, adequate disclosure shall include satisfaction of one of the following requirements:

(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.”

Look at the clause in your lease that relates to assignment and subletting. Does it conform to the Rent Board requirements? It looks like the clause has provided an explanation of a blanket prohibition on subletting. That’s a problem.

Does the lease allow for only 1 person? Are you the only named person on the lease? Have you always lived alone?
If the answers to these questions are “yes”, the no-subletting clause is probably valid. If any of the answers are “no”, you may be able to make a case to add a roommate.

Do not let your boyfriend move in without the landlord’s permission. You will be discovered because the landlord’s daughter lives in the building, but that’s not the point. I never recommend that a tenant blatantly breach a lease unless the clause is illegal or unconscionable.

You can explore two other options. You can ask the landlord to allow your boyfriend to stay as a guest until you find another place. The landlord may want you to give notice to move on a date certain. That could be a problem if you can’t find a new place in time.

Or you can get married or you and your boyfriend can register with the City as domestic partners. Check out “Tenant Troubles: Is My New Husband Going To Get Me Evicted?” to understand how the Rules and Regulations apply.
Before you take any other action, I strongly urge to bring your lease and any other relevant documents to the San Francisco Tenants Union for a counselor to review. You may even want to discuss this with an attorney. The TU has a list of approved tenant attorneys.

Sometimes following the rules won’t get you the answer you wanted. But following the rules won’t get you evicted either.

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Is My New Husband Going To Get Me Evicted?

Is My New Husband Going To Get Me Evicted?

by | Aug 25, 2011 | Roommates

Is My New Husband Going To Get Me Evicted?

I live in a four unit rent controlled building in San Francisco. I moved into the one-bedroom apartment in 2005.

My ex-husband moved out in 2009, and I finally got around to telling my landlord in 2010, so I am now the only “original occupant”.

However, my new fiancé has been living with me, and paying all the rent since August 2010.The lease requires that, “a substitution, addition, replacement, or sublet of tenants or roommates is not allowed unless the landlord has given specific, written consent.” and “In the event subsequent occupants, co-occupants or substitute roommates are accepted into this rental unit by prior written consent of the owners, the provision the of sf rent control ordinance, part 6, 6.14 & 6.15 will apply. “

We are going to get married in less than a month, I’m going to change my name, which I don’t think is going to be a problem since I pay my rent through money order. But, apparently him living with me but not on the agreement is a violation.

We wanted to act like he hasn’t been living at this address, and do all the stuff to get him on the agreement, but his credit report will state this address as an address. So, that’s sort of a give-away, right? Is there anything that I could do to help alleviate this situation, or will we have to move when we get back from our honeymoon so I won’t get evicted? I love this apartment so freaking much…

As you noted in your email, in your email your situation is almost exactly like our reader’s last week who wanted to swap girlfriends (on his lease.) If your fiancé had not already moved in, you could very easily use the method prescribed in Rent Board Rules & Regulations §6.15B to request permission form the landlord for him to move in. If your ex-husband was originally on the lease you would simply be making a one-for-one roommate replacement.

Of course it would be difficult to make the replacement now because your fiancé already lives with you. It is always tough to fake the approval process. He could move out and move back in. Or you might argue that he is an original tenant if he has been paying directly to the landlord for the past year. But guess what?

Rent Ordinance § 37.9(a)(2)(B) states: “[…] a landlord shall not endeavor to recover possession of a rental unit[…]as a result of the addition of the spouse or domestic partner of a tenant, so long as the maximum number of occupants stated in Section 37.9(a)(2)(B)(i) and (ii) is not exceeded.” The maximum number of people allowed in a one-bedroom apartment per the regulations is certainly more than two, depending upon which code you read.

Rent Board Rules & Regulations §6.15D also addresses this. Creditworthiness cannot be a bar to the addition of a family member unless the family member is going to be legally liable for paying the rent. In your case, no matter where the money comes from, you’re the person who is legally liable because yours is the only name on the lease.

You do not have to engage in any subterfuge.

Readers: It’s never a good idea to try to backpedal to get a landlord’s consent to the addition of a roommate after the roommate has moved in. Follow the rules before you add a roommate. If you’re married to your roommate (or joined in civil union) you should still understand that the rules apply, but they are much more forgiving.

Go get married, have a great honeymoon and don’t worry about eviction.

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I Need To Swap Girlfriends (On My Lease)

I Need To Swap Girlfriends (On My Lease)

by | Aug 18, 2011 | Roommates

I Need To Swap Girlfriends (On My Lease)

Swap girlfriends?

I live in a pre-1979 rent controlled building. I moved in with my GF (we are both on the lease) in 2003. She moved out a while ago and I just left everything lease-wise as is and paid the whole rent. I now want my current GF to move in and get on the lease. Is there anything besides notifying them and filling out the usual rental forms (she has great credit and would get glowing reviews from her current landlord) that I should know? Things always seem so simple until I read emails sent to you, and you point out a whole bushel of stuff that could go wrong.

Your issue actually seems fairly simple.

I’m assuming that you have a clause in your lease that allows subletting with a landlord’s written consent. San Francisco Rent Board Rules and Regulations §6.15B applies if that is the case.

Essentially, if you do not receive a landlord’s consent or the landlord withholds his consent to replacing your roommate, the lack of consent cannot constitute a breach of your lease for purpose of eviction under Rent Ordinance §37.9(a)(2) if you have followed all of the following steps before the new roommate moves in:

“(i) The tenant has requested in writing the permission of the landlord to the sublease or assignment prior to the commencement of the proposed new tenant’s or new subtenant’s occupancy of the unit;

(ii) The proposed new tenant or new subtenant, if requested by the landlord, has completed the landlord’s standard form application, or, in the event the landlord fails to provide an application or has no standard form application, the proposed new tenant or new subtenant has, upon request, provided sufficient information to allow the landlord to conduct a typical background check, including credit information, income information, references, and background information;

(iii) The tenant has provided the landlord five (5) business days to process the proposed new tenant’s or new subtenant’s application;

(iv) The proposed new tenant or new subtenant meets the regular reasonable application standards of the landlord;

(v) The proposed new tenant or new subtenant has agreed to sign and be bound by the current rental agreement between the landlord and the tenant;

(vi) The tenant has not, without good cause, requested landlord consent to a new tenant or new subtenant more than one time per existing tenant residing in the unit during the previous 12 months;

(vii) The tenant is requesting replacement of a departing tenant or tenants with an equal number of new tenants.” (Rules & Regulations §6,15B(b)(1)(i-vii))

If you follow these steps to the letter, you should be okay.

The days of simply replacing your roommate without the landlord’s involvement are long gone. Many tenants don’t realize this. They think they can simply add a roommate and as long as the rent gets paid, no harm no foul. Or they verbally inform the landlord about new roommates without obtaining a consent in writing.

Over the years, landlords in rent-controlled jurisdictions have increasing relied on “no subletting” clauses to evict tenants. Why? To increase the rent, of course.

Just this week, our office is dealing with a case in which the landlord is threatening the tenants with eviction because roommates were added without written consent. The landlord didn’t give a rat’s ass about that until he decided to sell the building and then raised the issue. Remember, buildings are worth more either without tenants or with tenants who are paying market rate.

Unfortunately, it is difficult to prove that a landlord waived his right to consent to subletting. And it is expensive to prove it because to do so means defending an unlawful detainer (eviction) lawsuit.

If you are living with roommates, you must begin to abide by the Rules & Regulations to avoid eviction.

Ask the landlord for his permission to add you new girlfriend to the lease.

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Can I Be Evicted Just Because My Apartment’s An Illegal Unit?

Can I Be Evicted Just Because My Apartment’s An Illegal Unit?

by | May 19, 2011 | Illegal Unit

Can I Be Evicted Just Because My Apartment’s An Illegal Unit?

Apartment’s an illegal unit.

I’m a protected tenant (65yrs old + 15 year resident) in an illegal unit. The building was recently sold and purchaser was aware of my protected tenant status. It appears that the strategy that is being used to get me out, is to have a building inspector come in to declare unit illegal and also possibly identifying some kitchen defects (venting). Owner has offered $5000 above relocation costs if I agree to get out without having inspector involved. The new owner would be reclaiming my unit for his own use without plans to use it as rental unit.

Can you please tell me what if any options I have if my apartment’s an illegal unit.

First, you need to determine if indeed your unit is illegal. Often illegal units take the form of in-law units under single family dwellings. One can find many of them in the Richmond and the Sunset. There are three characteristics that indicate a unit may be illegal.

No separate PG&E bill. If you are sharing your gas and electric bill or the landlord is paying the utilities, the unit is not separately metered. Of course there are quite a few big buildings and complexes like the Golden Gateway that are not separately metered. But two and three unit buildings usually have separate meters.

Ceiling height. Generally the Uniform Building Code requires a minimum ceiling height of 7’6″. If the ceilings in your unit are lower and you share PG&E, there’s an even bigger chance the unit is illegal.

Secondary egress. If a unit has no secondary means of egress (a second door or window to use to escape from a fire), that’s another big indicator that the unit could be illegal. Think garden apartment at the back of a garage where the only entry and exit is through the garden. Units that only exit into a garage are usually illegal. Converted attics without a fire escape are often illegal units.

SF Assessor-Recorder’s website. In a typical scenario one will find that the Assessor lists the property as a single family house with one unit, even though there is an in-law in the building.

Finally, you can search the Online Permit and Complaint Tracking at the DBI website or if you cannot find any information there make a records request to view the permits and the certificates of occupancy or certificates of final completion at the DBI Office.

Now to your question. You can never be a protected tenant if you live in an illegal unit. Not possible. Because the unit is illegal, it should not be rented at all. You must dispel yourself of the notion that you will be able to stay if the landlord calls the DBI to violate the unit.

The “kitchen defects” to which you refer are not defects. If the DBI cites the unit as illegal, the landlord will be required to “remove the unit from the rental market.” That is accomplished by removing the kitchen, the factor that defines the apartment as a separate dwelling unit.

You should be aware that in order to be legally evicted, the landlord will have “to demolish or to otherwise permanently remove the rental unit from housing use” pursuant to Rent Ordinance section 37.9(a)(10). The landlord must obtain all the necessary permits, give you with a sixty-day notice to vacate and provide you $8,502.00 in statutory relocation benefits.

It is interesting that the landlord does not want to report the unit to DBI. He has not offered you much more than the statutory amount to vacate and he misrepresented (lied about) the relocation amount. Something is very fishy.

I flat out don’t believe the claim that the new owner wants to use the unit for himself. If that’s the case, why all the subterfuge? Forgive me my cynicism, sometimes I can confuse cheap and cheesy with diabolical. But the results are the same–the tenant gets screwed.

You should also understand that the landlord may be liable to you for civil damages. For example, if the landlord originally rented the unit to you and represented it as a legal unit, you may have damages for fraud and/or void contract that could, theoretically, entitle you to demand that the landlord refund all of the rent you paid for 15 years. I say theoretically because there are a whole bunch of factors that need to be evaluated for your specific case.

Go to the San Francisco Tenants Union to discuss your specific options. In the meantime don’t sign anything.

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My Landlord Isn’t Depositing My Rent Checks, Should I Worry?

My Landlord Isn’t Depositing My Rent Checks, Should I Worry?

by | May 4, 2011 | Tenant Law

My Landlord Isn’t Depositing My Rent Checks, Should I Worry?

I have been following your articles on SFAppeal for a while. I just had two questions to ask: 1) My landlord has not been depositing the checks I send to them for rent. 2) My landlord also has not been sending a receipt as note of receiving my check.

I’m not sure what the rules and regulations are about the two concerns. I couldn’t find anything at the SFTU and SFRB sites. Any advice would be greatly appreciated, thanks.

This is one of the oldest tricks in the landlord playbook. We used to see it employed all the time when I worked at the Homeless Advocacy Project. If an SRO hotel landlord (think Sixth Street) didn’t like a tenant but could not find any reason to evict her legally, he would simply stop cashing the tenant’s rent checks or accepting rent. The logic is simple: Tenants, especially at risk, low income tenants, will spend the rent money. At some time in the future, if the landlord deposits all of the checks tenant’s checks at once, oops, the checks bounce. The landlord could serve a 3-day notice to pay or quit and, boom, the tenant is out.

The tenant harassment section of the Rent Ordinance (Section 37.10B) provides a long list of prohibited conduct if the conduct is done with ulterior motive and designed to harass tenants. Section 37.10B(a)(11): Refuse to accept or acknowledge receipt of a tenant’s lawful rent payment; (12) Refuse to cash a rent check for over 30 days. California Civil Code §1499 also requires receipts for rent payments.

Unfortunately in Larson v. City and County of San Francisco (2011), a case testing Proposition M remedies, the court found that the Sections 37.10B(a)(4-15) could not be enforced by the San Francisco Rent Board. But my reading of the case is that you can sue the landlord for violation of the Sections 11 and 12 in small claims court.

Obviously, the first thing to consider before you start any inquiry of the landlord is if you have all of your rent saved. If you don’t have the money, get it now because your tenancy is doomed if you don’t.

The next thing to do is to write your landlord a letter. Tell him that you noticed he isn’t cashing your checks. Ask him why. Or if you want to be more aggressive, demand that he cash your rent checks and cite the law that requires him to do so. Tell him you’ll take him to small claims court and demand “injunctive relief.” In other words you’ll ask the court to order him to cash your checks.

As usual, I suggest that you go to the San Francisco Tenants Union to go over your strategy with a counselor.

I also believe tenants should start referring these matters to the San Francisco District Attorney’s Office.

After all, Rent Ordinance §37.10B(c)(2) states: “Any person who is convicted of violating this Section shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not greater than one thousand dollars or by imprisonment in the County Jail for not more than six months, or by both such fine and imprisonment.”

Maybe it’s time for the cops to start busting scofflaw landlords rather than pot smokers.

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