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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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Adding A Roommate, Losing A Garage

Adding A Roommate, Losing A Garage

by | Jan 28, 2011 | Roommates

Adding A Roommate, Losing A Garage

I have been in my current (rent-controlled) two-unit apartment here in San Francisco since September 2008. The property manager states they will not process nor approve any application until they have received a positive verbal or written referral from the prior landlord/property manager/roommate.

I am not aware of any city, state or federal law supporting this requirement and understand that a property manager/landlord may only use personal information from an application to rent to confirm proof of income and credit worthiness, and the approval must be completed within a reasonable period of time (as far as I can tell, five business days).

This requirement by the property manager nearly sabotaged my new roommate when, after almost two weeks, they refused to allow him to move in because his prior landlord/roommate apparently wasn’t returning their calls.

My second question: the property manager has also refused to allow me to remain the master tenant on the lease, but instead insists that the new roommate be a co-tenant despite the fact that I have never been late paying the rent (with and without a roommate) since I moved in.

I would like to remain the master tenant (and the new roommate was aware of this wish and agreed to it prior to applying), but the property manager created a “Modification to Lease” placing my new roommate on the lease as a co-tenant.

Under the lease, I am entitled to park two motorcycles and a vehicle in the garage, and since I moved in, have neatly stored items in the storage area (I essentially have sole access to the garage since the tenant downstairs does not drive). After the new roommate moved in, the property manager sent me a letter stating that we must remove all items in the garage despite knowing of the storage matter and no one (that we know of) complained about our storage. I checked the lease and it states, “storage in unit only.”

Are the first two issues lawful, and do I have to move our things despite their constructive notice that I/we have always stored things in the garage/storage room?

All of your issues involve gray (unclear) areas of the law. By that, I mean that your issues, if litigated, will be subject to administrative or judicial interpretation. All of your issues are interesting. And you should understand that when a lawyer says your case is “interesting” that translates as “expensive.”

Can the property manager refuse to process a roommate application without a reference from a former landlord? Rent Board Rules and Regulations § 6.15A and B govern the process by which a roommate can be added to a tenancy. Assuming you have a clause in your lease that allows subletting with the landlord’s written consent (most leases do) the applicable section is 6.15B(b)(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.”

I imagine that most “standard applications” ask for the name of a former landlord. Read narrowly, one could interpret the rules as only requiring the tenant to fill out the application. However, no one is going to argue that the landlord cannot, upon receiving the application, “conduct a typical background check.” There’s the rub. I would certainly argue that a new roommate should not be penalized by a former landlord’s recalcitrance in providing a reference. What if the guy is on an extended silent meditation retreat in an ashram in India? Or recently deceased? What if the new roommate doesn’t have a former landlord, having just moved out of her parents’ house?

The problem is that there is no clear answer. Would it be worth a shot to litigate this at the Rent Board? Perhaps, but in your case you would not have standing to do so because your roommate was, finally, approved.

Can the property manager insist that a new roommate become a co-tenant? Frankly, I’m surprised that they would want to. Your roommate will have all of the rent ordinance protections you now have. Simply put, the landlord cannot increase the rent to market rate if you move out.

The only advantage of being a master tenant is the ability to evict a subtenant, either with or without just cause. (See Rules and Regulations §6.15C.) If your roommate becomes a co-tenant you would not be able to evict her at all because co-tenants cannot evict each other. Personally, I don’t see a problem because I don’t think anyone should want to be a landlord.

That said, you may not have to sign a new lease with the modification as proposed by the property manager, but the law is not completely clear. Rent Ordinance §37.9(a)(5) provides that a tenant can be evicted if he or she refuses to sign a new lease “under such terms which are materially the same as in the previous agreement.” Your roommate is a party to the lease not a term in the lease, yet the modification itself is, arguably, a material new term.

Finally, the storage issue is also subject to interpretation. Your lease specifically requires “storage in unit only.” Did the property manager “waive” that requirement? Waiver is the intentional relinquishment of a known right. That the property managers knew about your storage in the garage is not necessarily enough to prove their intent.

I think the best strategy is to remove the items from the garage. Then consider filing a petition for decrease in services at the Rent Board. Bear in mind that you will have to show that losing the storage has some monetary value; that losing the storage is a substantial decrease; and that the property managers intended to give up their right to demand that you remove the items. It’s a close call.

When presented with cases like this, I ask my clients to think long and hard before they risk their tenancies based upon unsettled issues in the law. For example, if you were my client, I may have advised you not to allow your new roommate to move in had the property manager refused to accept her based on their inability to contact the old landlord.

Defending evictions is expensive, time consuming and stressful. Often it’s better to make a business decision. Ask yourself, “Is my tenancy going to be worth it after I amortize these costs?”

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My Landlord Wants To Jack Up My Rent Because I’m Getting A New Roommate

My Landlord Wants To Jack Up My Rent Because I’m Getting A New Roommate

by | Jan 14, 2011 | Roommates

My Landlord Wants To Jack Up My Rent Because I’m Getting A New Roommate

Jack up the rent.

I am a tenant in a two-bedroom apartment. There are two units in the building and it was certainly built before 1979. I do not have a Section 8 lease with the Housing Authority. The unit is not a condominium. I have been renting this apartment for 5 years with my housemate. We are both on the lease. My housemate is moving out and I want to have another friend move in. I told my landlords this and they said that they want to jack up the rent from $1700 to $2250. I don’t think this is allowed under San Francisco ordinance.

The landlord insisted that he could increase the rent. I resisted. Now he thinks I have to move out with my roommate, writing:

Per your Addendum to Residential Agreement dated 07/22/2005, provision 4: ‘All tenants shall move in and out together as one tenancy.’ Therefore, per the agreement signed by you and (name redacted), both of you have to move out and the lease is terminated. Please vacate the property within two weeks. Thank you.

P.S. For your knowledge: I contacted San Francisco Housing Authority and it stated that the Landlord can increase the rent if the new tenant/roommate moves in.

Does my landlord have any justification to evict me?

No, no, no!

Before I go off on your landlord I want to point out to my readers that your opening statements about the facts of your tenancy tell me everything I need to know to answer your question. I can tell that you live in a unit that is subject to both the rent control and just cause provisions of the Rent Ordinance. That means the landlord can only increase the rent as much as allowed under the ordinance and that he must have a “just cause” to evict you. I know that you are an original tenant on the lease. I also know that the landlord is not going to get any information from the Housing Authority other than, “Call the Rent Board.”

To be fair to your landlord, if he called the Rent Board and asked the question, “Can we raise the rent for a new tenant moving in?” without anything else, the Rent Board might tell him that he can raise the rent.

But you are not a new tenant. If the landlord forgot to mention that important fact, he is not the sharpest tool in the shed. Of course sending an email with an illegal notice to vacate isn’t very bright either.

The other possibility is that the landlord thinks he can lie about his call and expect you to rely on his information. All in all, I think it might be fair to characterize your landlord as a stupid liar.

What should you do?

First become familiar with Rent Ordinance Rules & Regulations §6.15A and §6.15B. As you may know the Rent Board provides “Information to Go” on subletting and many other topics.

Follow the applicable rule to the letter. Write the landlord(s) to request permission to sublet to your friend before he or she moves in. Your friend should be willing to provide all the necessary credit information to the landlord(s).

If they fail to respond or they unreasonably withhold their consent, you can petition the Rent Board to reduce your rent by half. In this case it might be wise to provide the landlords copies of the applicable laws and procedures.

It’s best not to allow your friend to move in until the dust settles. You don’t want to defend an unlawful detainer (eviction). Even when you are in the right, defending an eviction is often too costly to justify. Landlords rely on that and file meritless lawsuits all the time.

If your landlord insists upon requiring you to vacate, you should point out that the clause in the addendum (likely penned by the landlord and their imaginary lawyer) is void as against public policy. It’s an attempt by the landlord to arbitrarily remove themselves from Rent Ordinance Jurisdiction. It’s like putting a clause in the lease that allows the landlord to raise the rent whenever he wants, regardless of the law.

Join the San Francisco Tenants Union. Bring all of your documentation and discuss the issue with them. They will explain the applicable law in detail and help you draft a letter or letters to your landlord. They can also inform you about filing a petition at the Rent Board.

Readers: This was an easier question to answer because the reader is an “original tenant” named on the lease. The issues get murky when dealing with unnamed tenants, “co-occupants”and “subsequent occupants” as defined in Rent Board Rules & Regulations §6.14 and the Costa Hawkins Act (which should be repealed.) There are many scenarios when the landlord can, in fact, increase the rent to market rate. This is not such a scenario. The point is: don’t read this and assume that your landlord may not have a valid rationale to increase your rent.

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Losing Your Security Deposit For Subletting?

Losing Your Security Deposit For Subletting?

by | Oct 16, 2010 | Security Deposits

Losing Your Security Deposit For Subletting?

I started subletting a room in an apartment in June. The lease was up this October. A week before I was due to move out, the landlord (who I had never met) showed up in my room at 8:30 in the morning, surprised as to who I was. Turns out the girl I was subletting from (who was on the lease) wasn’t allowed to have subletters. But she never told me that!

Now she told me “we” might not get our security deposit back. I feel like I should get my portion back as I was unaware that I wasn’t allowed to sublet. I’d even take her to small claims court. Do I have any legal claim to my security deposit, or is it my fault for assuming she was allowed to sublet if she was posting ads for subletters on craigslist?

The fact that you were, arguably, an illegal subletter has absolutely nothing to do with your security deposit.Your (and your roommate’s) security deposit is just that–a deposit held by the landlord from which to deduct damages in the unit, caused by tenants, that exceed “normal wear and tear.” The landlord can also deduct unpaid rent from the deposit. This is clearly spelled out in California Civil Code §1950.5.

This could be a ploy by the landlord to keep your security deposit. I believe that the illegal retention of security deposits by landlords is simply theft. I also think that landlords could be bilking tenants to the tune of tens of millions of dollars a year in California. So I wouldn’t be surprised if the landlord is trying to use this as an excuse to keep your dough.

Hopefully, you and your roommate have taken some precautions to prove that you deserve the return of your security deposit when and if you have to take the landlord to small claims court. You can find a list of them in my blog post, “Grand Theft Security Deposit.”

If you have to take the landlord to court and he offers up the lame excuse that he kept the money because you were an illegal subletter, boom (the sound of a righteous gavel), case closed. It is more likely that the landlord will say you damaged the premises in ways that exceeded the scope of normal wear and tear. That’s why it is important to have photographs to prove him wrong.

The landlord may provide photographs of his own at the hearing. Study them carefully. Are they closeups that could be from anywhere? Do they show anything other than normal wear and tear? In a trial we had over a similar issue, the landlord submitted a photo (blown up to 11″ x 14″) of a pubic hair on the hardwood floor. I don’t know if the guy expected the case to be tried by Clarence Thomas, but nevertheless, he lost.

You should tell your roommate not to accept the landlord’s rationale for refusing to return the deposit. Show her this article.

Of course, the other possibility in this scenario is that your roommate is lying to you about the security deposit. I hope that isn’t true, but if it is, you can sue her because she, as the master tenant/landlord, retained your portion of the security deposit in bad faith.

It’s time to start getting all of these bozorific statements to you in writing. Read California Civil Code §1950.5 so you can respond, in writing, with ringmasterish authority. Emails will be fine.

Bring all of your evidence to the San Francisco Tenants Union and ask them to help you begin to prepare for your small claims case.Good luck. Only you can stop grand theft security deposit!

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Why An Absentee Master Tenant Is A Bad Idea

Why An Absentee Master Tenant Is A Bad Idea

by | Jun 24, 2010 | Tenant Law

Why An Absentee Master Tenant Is A Bad Idea

Our issue is this: we have a ‘new’ housemate that just is not working out well. She’s constantly being a nuisance despite many verbal and written requests to change her behavior and has a habit of damaging other housemates property as well as the unit itself. We would like to have her out but don’t know if it is legal for us to ask her to move or do we ask the master tenant to evict her?

She’s been living here 8 months and there has been some issue each month that causes us utter consternation at her lack of respect of property and forgetfulness as to the written house rules (despite the verbal and written reminders). If nothing else, due that I cannot keep my property from being damaged (I’m not talking normal wear and tear), I have to now keep furniture/appliances/etc… in my room and have lost space in the house–would this constitute a loss in services and may I reasonably ask for a rent reduction because of it?

When I received this question, my first inclination was not to answer it at all. Why? Because you are asking me a question, in your capacity as a landlord, for advice on how to evict a tenant. I don’t give eviction advice to landlords, period. But, as you can see, I think your issues need to be addressed because they are, after all, very common.

What you have here is a personality conflict. The San Francisco Rent Ordinance does not articulate a just cause to evict someone because of a personality conflict. Your facts, as you state them, do not indicate that your roommate is at all a nuisance in the legal sense. So, based on your question, I don’t believe it would be legal for either the household or the master tenant to attempt to evict your roommate. In fact, you could be liable for any damages she suffers from any “wrongful endeavor” or “harassment” to evict her.

Work out your problems with your roommate. If you need help to resolve your differences, you should try mediating the dispute with Community Boards. I don’t have any direct experience with them, but I have heard, from many sources, that they provide effective, professional and successful meditations for disputes like these.

With respect to a claim for decrease in services, I don’t see that moving your stuff into your room constitutes a substantial decrease in services. Besides, who would you name in your petition? The landlord? The so-called master tenant?

This brings me to real tenant issue implied in your question. The master tenant doesn’t live in the unit and he may not have permission to sublet.

With every complaint to the landlord you run the risk that he will begin an “inquiry” into subletting in the unit. He could claim that, despite any prior permission he gave the master tenant to sublet, he never gave permission to sublet to the current set of tenants. This happens all the time. The landlord was fine with the situation as long as there was no trouble. If he has to deal with trouble anyway, why not just get rid of all the tenants and raise the rent? The fact that the landlord lives in the same building and probably knows you and your roommates is a good thing, but that doesn’t mean that you won’t be spared a long and costly legal battle to save your tenancy.

Every complaint to the “master tenant” increases his desire to evict you. As I pointed out in, “Tenant Troubles: What Rules Govern Master Tenants?” many master tenants like to throw their weight around.

Let’s say the “master tenant” is a great person who isn’t profiting on his control of the unit and won’t try to evict you. (An unlikely scenario, as I point out in my blog post, “Bad Master Tenant.”) What if the landlord sells the building or dies? Do you honestly believe that your tenancy wouldn’t be jeopardized?

Tenants, it’s always a bad idea to rent a room in an apartment with an absentee master tenant. Too many things can go wrong.

Your problem, simply put, is that you have too many landlords. You’re a landlord wannabe. The master tenant is an absentee landlord. To top it off, the real landlord lives in the building. I see a shit storm in your future.

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Read Your Lease!

Read Your Lease!

by | Nov 11, 2009 | Roommates

Read Your Lease!

If you are living in an apartment with more people than provided for on the lease, but the landlord knowingly accepts rent checks from the extra parties, does this constitute a sort of “oral agreement” in which the landlord must abide the same laws governing his relationship with the other tenants? More simply, if he accepts my rent check as one of the “extra parties,” can he still “evict me” because I’m not on the lease?

Ah, leases…scintillating, page tuning reading, NOT! Imagine a Broadway musical called, “Lease!” No amount of nudity could keep it from flopping.* Unfortunately you need to understand your lease to answer many questions about your tenancy. So my general advice to tenants is: “Read your lease.”

Most leases have a clause governing assignment and subletting. Interestingly, many tenants think that subletting only occurs when one vacates an entire unit and turns it over to somebody else. When you add or replace roommates you are subletting part of the unit, so the subletting cause in your lease applies.

Typical leases provide that tenants may not sublet without the written consent of the landlord.

Assuming your lease is typical; your case is relatively straightforward. Your landlord accepted and presumably cashed your check. It’s likely that he signed the back of it when he deposited it into the bank. By accepting rent directly from you he has waived (given up) his right to evict you and your roommates for breach of the covenant against subletting.

We lawyers also argue that by his conduct of directly accepting your check, the landlord is estopped (prohibited) from claiming that he did not accept your tenancy.

The landlord may attempt to serve you and your roommates a 3-day notice to perform covenant or quit for breaching the lease. If you don’t move out after 3-days, theoretically he can serve an unlawful detainer (eviction) lawsuit to evict everybody. A landlord cannot legally evict one tenant in the premises; he must sue to get possession of the entire unit.

Given what you’ve told me, if the landlord tries to accuse you of breaching the lease, you have a good defense. You should contact your bank and get copies of all of your checks indorsed by the landlord to use as evidence that he accepted your tenancy.

Mind you, more lies per square foot are told in court than anywhere else but church. And landlords suffer more amnesia than soap opera starlets. Just because you have a good defense to an eviction doesn’t mean the landlord won’t try to boot you out.

I’d like to take my husband off our rental agreement because he left and refuses to pay rent. How can I do that without having hassles from my landlord that I can afford to live in my apartment on one earning? Do I have to enter into a new lease, with a new rent? I’m on the lease now, and the building is protected under rent control, (if that matters.)

It does matter that your tenancy is rent controlled. The just cause eviction provisions of the Rent Ordinance allow your lease to continue on a month to month basis because you can only be evicted for one of the 16 just causes. The Rent Ordinance also provides that your rent can only be increases by the allowable annual increase.

If you are named on the lease you probably don’t have to do anything. You certainly do not have to sign a new lease with a new rent. Rent Board Rules and Regulations §12.20 specifically prohibits a landlord from endeavoring to evict a tenant based on a breach of a term in a lease that “was unilaterally imposed by the landlord and not agreed to by the tenant and either was not included, or is not materially the same as an obligation or covenant in the rental agreement mutually agreed to by the parties.” A new rent amount, unless it is lower, will qualify as such a term. How many times has your landlord tried to lower your rent?

Read your lease. If there is a term requiring you to notify the landlord that your husband moved, do so. Other than that, you should be fine.

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What Rules Govern Master Tenants?

What Rules Govern Master Tenants?

by | Nov 4, 2009 | Roommates

What Rules Govern Master Tenants?

If you’re a sub-tenant/not on the lease, what are your rights? Can the master tenant kick you out, or raise the rent, at his/her discretion?

Some master tenants just can’t resist throwing their weight around. The really bad ones think they own the unit. They can be as oppressive as the worst landlords. “It’s my way or the highway, Chucko!”

The worst master tenant doesn’t even live with you. He tells you that his stuff in the closet means he’s a roommate and he can drop in whenever he wants. He charges the subtenants $1,000 per month per room. Because the total, rent controlled, rent is only $400.00 per month, he can rent a really cool loft in Los Angeles while he works on his screenplay…until your landlord finds out.

Imagine the brouhaha when the landlord finds out he’s losing, say, $2,600.00 per month or $31,400.00 per year. You can bet that everybody’s going to get the boot. Not to mention that master tenants who pull this shit are the stuff of urban legend to the landlord class. They screw up rent control for the rest of us. But I digress…

Your rights in San Francisco with regard to a master tenant can be found in the Rent Board Rules and Regulations § 6.15C. A master tenant may be able to evict you without one of the just causes in the Rent Ordinance only if, “prior to commencement of the tenancy, the Master Tenant informs the tenant in writing that the tenancy is not subject to the just cause provisions of Section 37.9.” Section 37.9(a) lists the just causes, like nonpayment of rent, nuisance, etc.

Usually a master tenant will include that language in a sublease. If you were not informed

in writing that you could be evicted at will, the master tenant cannot just throw you out. Even if a master tenant can evict without cause he must provide you with a 30-day notice or a 60-day notice if you have lived in the premises for more than one year.

Master tenants don’t raise rent, landlords do. One of the more controversial provisions of Rules and Regulations 6.15C(3)(a) provides that a master tenant cannot charge a subtenant more than his proportional share of the rent, with differential calculations including services provided by the master tenant, room size comparison, etc. Arguably, if the master tenant increased your rent without a corresponding increase from the landlord, he may be in violation of the Rules and Regs.

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