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If Our Roommate Moves Out, Can Our Landlord Jack Up Our Rent?

If Our Roommate Moves Out, Can Our Landlord Jack Up Our Rent?

by | Sep 13, 2012 | Tenant Law

If Our Roommate Moves Out, Can Our Landlord Jack Up Our Rent?

My home is a duplex with my landlord living in the apartment above. It was built before 1979.

The original tenants moved in two and a half years ago. We will call them Dan, Josh and Ted. Ted moved out after the first year and my boyfriend moved in and signed a year lease with Dan and Josh.

After a year Dan moved out and I moved in but I did not sign a lease, my boyfriend and Josh signed a six month lease.

The six month lease is nearly up and my boyfriend and I would like to renew with a year lease without our third roommate Josh. My landlord wants to raise our rent claiming “the original tenant is moving out.”

My boyfriend has now been on two leases (one for a year and the other for 6 months) in this apartment, is he not considered an original tenant at this point? Is my landlord allowed to raise the rent any amount they wish? We have always paid on time and have never complained nor been complained about in this apartment and I am worried we will be taken advantage of if we don’t familiarize ourselves with the SF laws.

It’s not completely clear to me if the leases your boyfriend signed were subleases or leases also signed by the landlord. I’m going to assume that when your boyfriend originally moved in, he and Dan and Josh all signed a new lease with the landlord. I’m also assuming that your boyfriend and Josh signed the six-month lease with the landlord.

As you are probably aware, if your boyfriend only signed a sublease with the original tenants, your landlord may be able to increase the rent.

This is why a lawyer may ask questions to which the answers seem obvious. When you stated that your boyfriend “moved in and signed a year lease with Dan and Josh,” I thought he may have signed a sublease. The rest of the facts, however, indicate to me that the leases were negotiated with the landlord. Of course, the distinction is crucial to determining if your boyfriend is a co-occupant or a subsequent occupant.

Given my assumption, your boyfriend is clearly a “co-occupant” for purposes of the Rent Ordinance Rules & Regulations §6.14(a)(3): “‘Co-occupant’ for purposes of this Section 6.14 only, is a subsequent occupant who has a rental agreement directly with the owner.”

Rules & Regulations §6.14(c), the section applicable to your boyfriend, states: “When all original occupant(s) no longer permanently reside in a rental unit, and the last of the original occupants vacated on or after April 25, 2000, the landlord may establish a new base rent of any subsequent occupant(s) who is not a co-occupant and who commenced occupancy of the unit on or after January 1, 1996 without regard to the limitations set forth in Section 37.3(a) of the Rent Ordinance…”

Note that your boyfriend is not an original occupant within the meaning of §6.14 (a)(1): “Original occupant(s)” means one or more individuals who took possession of a unit with the express consent of the landlord at the time that the base rent for the unit was first established with respect to the vacant unit.

That brings up another issue. If the landlord increased the rent more than the Rent Ordinance annual allowable increase in one or both of the subsequent leases, you may be able to petition the Rent Board for an illegal rent increase.

Between you and me, when I read your question I thought, “WTF, the guy’s named on the lease. This landlord is out of his frickin’ mind!” But when I reread §6.14, which as usual, has the effect of a combination of Seconal and Wild Turkey, I understood your landlord’s confusion. Your boyfriend is not an original tenant/occupant, but the landlord still cannot increase the rent.

Rules & Regs §6.14 issues are always complex and one should always discuss them with someone trained in the nuance of the Rent Ordinance. Where can you find such a person? At the San Francisco Tenants Union! You can go over the facts with a counselor there and fashion a letter stating the applicable law, informing the landlord that he can’t increase the rent over the allowable limit.

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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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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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Why Can’t My Wife Sign Our Rent Check?

Why Can’t My Wife Sign Our Rent Check?

by | Jul 12, 2012 | Roommates

Why Can’t My Wife Sign Our Rent Check?

The weirdest thing happened today. My landlady sent me a note saying that I should be signing the rent checks (I have been doing this till now but the last check was written by my wife). We have a joint account and when I signed the lease I put my wife’s name on the lease.

I feel my landlady is bordering on harassment (there are other incidents) with these nonsensical notes she keeps leaving for me.

What is the law on this? Am I the only one who can pay her? What difference does it make, if the money is from a joint account and she can very well cash the checks?

If you are the only signatory to the lease, one could argue that you should be the one signing the rent checks. If both you and your wife are named on the lease then your landlord is just being an idiot.

Your landlord probably read some half-baked legal argument somewhere that advised her to be cautious about inadvertently accepting subsequent occupants.

If you are the only named tenant on the lease and you want to take care of this once and for all, you should read San Francisco Rent Board Rules & Regulations §6.15D. Section 6.15D outlines the process by which you can add your wife to the lease as an approved subtenant.

If you and your wife moved into the unit together and the land lord was aware of that fact, you can simply tell the landlord that your wife is a “co-tenant” entitled to all of the same rights you have. You should be familiar with San Francisco Rent Board Rules & Regulations §6.14 before you make that claim.

I’m guessing that your landlord simply doesn’t know what she’s doing as evidenced by the notes (always wonderful damning evidence if a case comes to court.) Your landlord is also too cheap to hire an attorney to advise her about how to professionally manage her building.

What difference should it make? Not a bit. Especially when the Costa Hawkins Rental housing Act, which screwed rent-controlled tenants everywhere in California and should be repealed says:

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 […] California Civil Code §1954.53(d)(4).

I’d be willing to bet that you have lived in your unit for about five years. That’s the time  some landlords begin to exhibit their “eccentricities.” Your landlord probably thinks it’s time for you and your wife to go so she can give herself a pay raise.

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I Think My Master Tenant Is Scamming Me

I Think My Master Tenant Is Scamming Me

by | Mar 1, 2012 | Roommates

I Think My Master Tenant Is Scamming Me

I thought this might be a good question for people like me who sublet temporarily in SF for a couple of months to give themselves more time to look for more permanent housing.

I am subletting an apartment in a 5 unit old Victorian in the Mission District of San Francisco for about 3 months from the original tenant who I met off Craigslist.  The tenant was temporarily leaving to take care of an ill family member on the East Coast.  I offered to write up the sublet contract because she was leaving for the East Coast in 5 days and was clearly distraught and still had a lot of things to take care of.

The tenant asked for an initial payment of the rent for the first month and the last month and an additional security deposit of a month’s rent of $1700 (in cashier’s check), plus utilities of about $60 in addition to rental reference and credit check.  She also asked me to include an option in the contract letting her move back in a week earlier and she promised to pay me back the prorated one week’s worth of rent before I vacated the apartment.  She has 30 days to return my security deposit.  She told me some other things to put in the contract about her plants and keeping the place clean and we agreed on the final version over phone and by email before meeting in person.

Before I moved in I asked to meet her landlord but she assured me she already talked to him.  We met the day before she left, went over the contract together and signed it then she gave me her keys.  A month into the sublet I ran into the landlord who was surprised to meet me and asked if I was living in that apartment.  I explained to him that I was subletting for about 3 months and was equally surprised that he didn’t know about it.  He told me the tenant had previously sublet to another people without telling him and he was unhappy about it but that generally she was an okay tenant who had lived there four years.  After some small talk, we exchanged contact information and he told me to let him know if there were any problems or anything that needed to be fixed.

Since that time, the tenant has exhibited more worrisome irrational behavior. 

1.     She called me trying to change the move back date in the contract to a much earlier date (not what we agreed to) and then promised both over the phone and by email to mail me the payment for the week’s rent plus utilities before my move out date in March (it’s been two weeks and I have not received it).  There is a specific provision in the contract saying that she needs to pay me that amount before I vacate.

2.     When we discussed the security deposit she was cagey saying that she would mail it back to me but she needed to hang on to it for the 30 days. Honestly, there is nothing in her apartment repair or otherwise that would be $1700.  I’ve kept everything the way she left it, watered her plants for her, and I don’t use her dishes or cookware because I have my own

3.     When discussing move out the date, she asked me to vacate the apartment and leave the keys in an envelope in her mailbox because she was going to “emotional” coming back to her apartment and wanted to be alone.  I objected saying that I felt more comfortable handing her the keys in person to make sure she received them, also that we should inspect the apartment together before I left so she could point to things that were “broken” she would use the security deposit to fix.  She reluctantly agreed but I have the feeling she wanted to avoid me.

I am worried that she is going to try to keep both my security deposit and also my week’s rent.  What can I do?  Refuse to vacate the apartment until she pays me at least the week’s rent?  Should I ask for a cashier’s check?  Get her landlord involved in this?  If she doesn’t pay me my security deposit what would I be able to do?  Small claims court?

Do I have any rights as a subletter?  What can I do to protect myself at this point?

I feel bad thinking this way but she has given me the impression that she is hanging on to my money because she’s not doing so well financially.  I don’t think she’s working right now.  Of course, I am hoping for the best but in our interactions with each other she has given me a negative impression of her in a short amount of time.  At first, I felt bad for her and thought this arrangement was mutually beneficial but now I feel like she’s trying to take advantage of me. 

Cases like this drive me crazy. It’s not enough that we in the tenant defense business have to deal with unscrupulous and/or uninformed landlords, we have to deal with tenants who decide they own their units and rent them out like landlords.

Master tenants who sublet in this manner rarely obtain the landlord’s consent to sublet. I write thousands of words complaining about landlords who don’t give a rat’s ass about their tenants. It’s always money. money, money, me, me, me.

The master tenant here is no different. She didn’t bother to consider that she could be subjecting you to a costly lawsuit that could ultimately effect your credit rating to the extent that future landlords won’t rent to you, not to mention that this could be a scam. She’s a Bad Master Tenant.

Luckily you’re not presenting the worst case scenario. The landlord could have served a notice to cure or quit alleging illegal subletting. Then the master tenant and you could spend the next couple of months defending an unlawful detainer (eviction) action–a lawsuit that the landlord would likely win. I have to say , your landlord gracefully handled the news that you were the new subletter.

The master tenant is either oblivious to the Rent Ordinance or she is relying on your naiveté. Bad.

To understand the scope of your rights as a subtenant you should first read Rent Board Rules & Regulations §6.15C. The regulation is very specific. Unless the master tenant has informed you in writing, before you sublet, that you are not subject to the just cause eviction provisions of the Rent Ordinance, the only way the master tenant can evict you is by alleging one of the just causes like nonpayment of rent, nuisance, habitual late payment, etc.

Even if you have been informed that you are not subject to “just cause” eviction, the master tenant would have to serve you a 30-day notice to quit.

Essentially, you have obtained most of the rights of a subtenant and you could tell your new “landlord” that you plan to live in the unit forever.

You also have to ask yourself if she’s simply scamming you. Believe me, that’s more common than one might think. Is she charging you more rent than she pays? What’s with the $5,100.00 charge for a temporary sublet? Did she use the dough to finance her trip? Check the Superior Court website to see if she has been sued for this before.

And here’s a thought for you: It’s not usually a good idea to give a stranger you’ve met on Craiglist over $5,000.00 unless the services are performed immediately.

So what do you do?

The landlord won’t want to get involved and he doesn’t have any duty to you anyway. He might get fed up and evict the entire household, but that does you no good.

I think you should simply tell the master tenant that you will move out, if she returns all of the unused rent  including the security deposit. (BTW, Civil Code §1950.5 provides that the landlord must return the deposit in 21 days, not 30.) She needed to hang onto to it for thirty days? Bad.

When you move out, the transaction should be a “cash for keys” exchange. That’s cash or a cashier’s check, not a rubbery gotcha note.

If the master tenant balks, you’ll know she spent your money. As distasteful as this may be, you may have to tell her that she just acquired a new roommate until she pays you.

You can also move out and sue her in small claims court, but the likelihood of ever collecting is small. The master tenant is unemployed and, think about it, her only source of income may be the next sucker she finds on Craiglist.

Why am I so freaking nasty when it comes to master tenants like this? They screw it up for the rest of us. Ironically, whatever the internal justifications master tenants sublet in this manner–ineptitude, desperation or greed–those justifications provide the fodder for landlords to demand the repeal of rent control. Of course, the repeal of rent control would further subject tenants to landlords’ greed, desperation and ineptitude.  Bad, bad, bad.

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When I Break The Lease, Is My Roommate Screwed?

When I Break The Lease, Is My Roommate Screwed?

by | Jan 26, 2012 | Costa Hawkins

When I Break The Lease, Is My Roommate Screwed?

Break the lease.

I’ve read your columns on the SF Appeal and tried to find a direct answer to my question in a few of them, but haven’t really hit the nail on the head. Here’s my situation:

I live in a building (not a house) in the USF/Pandhandle area in San Francisco that was built in 1917. It is 6 units. I am 25 years old, and have lived in the unit since May 1, 2011. The rent is $2050 per month.

In May when I moved, I found a roommate off Craigslist, Alison. She and I both planned on being there for at least a year, and so we both signed the lease. There were zero issues, and the move went smoothly.

My landlord seems like a good guy. When Alison told me in September that she would be leaving the city for work, my landlord agreed to let her sublet her room to a new tenant. I found a replacement roommate,  Bijou. Bijou signed a 6.14 notice. I didn’t realize the implications of this notice at signing – he sent it to her and she sent it back to him — I didn’t even look it over. My mistake.

Fast forward to today. My boyfriend and I decided to move-in together, and due to high rent and low availability, we ended up snapping up an apartment now instead of waiting until my lease ended in May. My new lease starts Feb 1, and I plan on moving at the end of this month.

I wrote an exhaustingly long email to my landlord about this, asking if I can sublet my room for the remainder of my lease. Bijou said she would even sign a new year lease if need be with her friend who is interested in moving in. My landlord said that it was “okay” for me to move out (aka I didn’t have to pay a fee for breaking my lease?) but that since I was the “original occupant” on the lease, that the lease would be null and void. That didn’t make sense to me, since he let Alison (old roommate) do it easily – I figured I’d be in the same boat.

My landlord then went on to say that he “might” raise the rent (no word yet on how much – my emails and calls have gone unanswered) and that he wasn’t sure if he wanted Bijou and new tenant to sign a lease but that he wouldn’t evict them, either. Huh? What are his rights in this sense, and what are Bijou’s rights? I feel responsible since I’m the one leaving early and complicating matters, but the landlord hasn’t told me I’m doing anything illegal or wrong — yet.

I made it very clear that I wanted to do a walk-through to get my security deposit back, and have been pressing him for information regarding the lease ending early, Bijou signing a new lease, and the rental cost. What else do I need to do to cover myself? What are his rights and what are Bijou’s rights in this situation?

What does being an “original tenant” mean, and why was Alison (old roommate) allowed to leave and sublet easily, but he won’t let me do the same?

Welcome to the world of Rent Board Topic No. 153:  “Rent Increases Under Section 6.14 And Costa-Hawkins.” San Francisco Rent Board Rules & Regulations § 6.14 and California’s Costa-Hawkins Rental Housing Act (Civil Code § 1954.50 to 1954.535) were designed to deal with “revolving door” tenancies–tenancies that pass from roommate to roommate over the years until everyone on the original lease is gone.

San Francisco’s ordinance has always provided that a landlord can increase the rent as he sees fit after all of the tenants vacate a unit. Rule 6.14 was designed to determine when a tenancy ended for purposes of increasing the rent.

On the other hand, California rent control ordinances were stripped of “vacancy control” by Costa Hawkins in 1996. For example, in Berkeley a landlord had to register his units price and all. Rents were only allowed to increase by allowable limits even after all the tenants vacated a given unit. Before Costa Hawkins it wasn’t as important to determine when a tenancy ended because the rental rate was controlled unit by unit.

Flash forward to now. In order to determine if a tenant is an “original occupant” a “subsequent occupant” or a “co-occupant” one must understand the interplay between 6.14 and Costa Hawkins. As you might guess, it can get very complicated. This is an issue that is often adjudicated at the Rent Board because it is misunderstood by landlords and tenants alike.

You have correctly kept the landlord and your new roommate in the loop and your tenancy is new compared to those who operated for years, adding roommates with or without the landlord’s consent.

In a nutshell, you are the last “original tenant” on the lease–the last named tenant, the last signatory. Your landlord consented to adding your roommate, Bijou, because likely he could not have unreasonably withheld that consent. Check your lease and Rules and Regulations §6.15A or §6.15B. He had no reason to deny consent anyway because you still had a one-year lease and he had ample remedies if you breached the lease, i.e. left without paying the rent.

In your case, however, one cannot readily apply the rules of either of the relevant statutes. Why? Because both Costa Hawkins and Rules & Regulations § 6.14 assume that a tenancy is a month-to-month tenancy. You have a term lease that does not expire until April 30, 2012.

You and your landlord can agree to terminate the lease now. Any agreement to do so, should be in writing. At that point Bijou would assume the status of a holdover subtenant–a subsequent occupant for purposes of Rules & Regulations § 6.14.

After you leave, the landlord cannot evict Bijou because he consented to her subtenancy. He can, however, increase the rent because you, the last original occupant, vacated. That she signed a 6.14 notice is irrelevant.

This alternative is advantageous to you because terminating the entire lease would entitle you to a refund of your security deposit upon move-out. It is advantageous to the landlord because he can increase the rent, using the rationale of Costa Hawkins that allows a rent increase:

“Where the original occupant or occupants who took possession of the dwelling or unit pursuant to the rental agreement with the owner no longer permanently reside there, an owner may increase the rent by any amount allowed by this section to a lawful sublessee or assignee who did not reside at the dwelling or unit prior to January 1, 1996.” (Civil Code § 1954.53(d)(2).)

Yet as you scramble to get out of the lease and your greedy landlord tries to increase the rent you forgot about the person who will be hurt under this scenario–Bijou. One of the factors upon which she based her decision to move in was the amount of rent. At the very least she relied upon the fact that the rent could not be increased at all until April 30, 2012. She may also have relied upon the fact that the rent-controlled tenancy would only be subject to annual allowable increases. What is she supposed to do?

If the landlord increased the rent, I might advise her to sue you for the difference between the original rent and the increased rent because she relied on your representation that you had a valid lease and that she was a lawful subtenant.

The best way to deal with this is to execute a “novation,” a new agreement in which all parties consent to replace Bijou as the original tenant on the lease. That way Bijou can get a new roommate. Bijou can collect half of the security deposit which she can refund to you. The landlord will continue to collect rent based upon his original deal (and financial expectation) with you.

If the landlord balks, you should point out that he will not be damaged at all. He signed the lease with you and agreed upon a rent amount that he knew was controlled. You may have lived in the unit for years. He agreed to the deal and understood its ramifications. There is absolutely no difference between his deal with you and his new deal with Bijou.

If you just leave, I would argue that the lease is still valid until at least April 30 regardless of Bijou’s presence. It’s an argument I might lose. You would still be responsible if Bijou breached the lease and you would not be entitled to refund of the security deposit until everyone moved out.

Bottom line: this is going to be a mess, no matter how you play it. And it’s your fault.

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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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