This article was posted on Friday, Jan 04, 2013

What do you do if you learn that your tenant has moved in a roommate without your permission? 

This topic comes up often in our monthly Legal Panel and is one in which we devoted an entire meeting to.  Some of you reported that you are presently experiencing what you believe to be unwarranted occupancies and asked for immediate help.  Attorneys Steven Adair MacDonald and C. Danny Wang offer additional helpful tips below on dealing with subtenants.  If you feel that the information out there is at times contradictory and confusing, join the crowd.  Since 2003, when the infamous Gonzalez Amendment to the Rental Ordinance made adding roommates a new tenant right (while leaving many questions unanswered), the law has never been tested in the courts and lawyers are divided on the best course of action.

Have you ever had a master tenant take in a roommate without advising you or asking for your permission?  When you found out about it, what did you do?  Here is what others shared:

Maxine:  This is what I do – I just give a 6.14 Notice to the master tenant to have the subtenant fill out.  If I get no response, I then personally give a 6.14 Notice to the roommate and explain its purpose.  IF there are any future problems with the roommate, I just contact the master tenant and advise him/her of the consequences of unacceptable behavior.  Also, I never accept payment of rent from anyone other than the master tenant.

Kira E:  I did nothing when I first found out.  They were all nice people and shared the space as a pied-a-terre.  I was not happy about it, but said nothing.  Later, however, I found out that the master tenant had bought a home in the wine country.   I told him that since this was no longer his primary residence, he was no longer protected by rent control and that I would be increasing his rent to market rate.  He understood and shortly thereafter, gave notice and moved out.

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Cliff:  Yes.  This happened many years ago when we first bought property inSan Francisco.  When I went before the Rent Board to complain about the unauthorized resident, the administrative law judge said that I had waited too long to petition the board.  I never found out what was “too long,” so the “guest” ended up becoming a tenant.  This was way before the Gonzalez Amendment that allowed these kinds of move-ins.

Cecilia M:  I used to give the uninvited subtenant a 6.14 Notice when I found out.   But now, with any one-for-one replacement, I do not acknowledge the subtenant in any way and I intend to enforce Costa-Hawkins when the last original tenant leaves.  The rules inSan Francisco are dysfunctional and the current advice as to what to do in such a situation seems to be to “do nothing.”

The below information is given by Steven Adair MacDonald and C. Danny Wang, Attorneys with Steven Adair MacDonald & Associates, P.C.

  •  Every situation must be determined on a case-by-case basis.  It’s always wise to consult with an attorney before taking action.
  • Check your lease’s language regarding subletting.  Realize that per current San Francisco law, even if your lease includes a clause absolutely prohibiting subletting, if the  master tenant jumps through certain hoops and you unreasonably withhold consent to sublet, then the master tenant is not in breach of the lease and you cannot prevent the move-in.  The hoops include, but are not limited to, the tenant making a written request to the owner or simply replacing an outgoing person with another, but not exceeding the maximum number of occupants authorized in the lease.
  • The master tenant is in breach of the lease even if s/he jumps through all the required hoops to see your permission to sublet after s/he has already started subletting the unit.  If s/he just started subletting to a subtenant without even bothering to request your permission, then there is a breach of the lease.  You can serve a 3-Day Notice to Perform Covenant or Quit and if not cured within three days, proceed with initiating an unlawful detainer lawsuit against the master tenant/subtenants.
  • Only accept rent from the named parties on the lease.  NEVER take rent from anyone else, especially the subtenant.  Note that, legally speaking, the master tenant is the landlord of the subtenant.  The subtenant pays rent directly to the master tenant.  Deal ONLY with the master tenant in collecting rent.
  • DO NOT add the new subtenant directly to the lease.  Adding him/her to the lease doesn’t benefit you in any way, and there’s a definite downside if the (original) master tenant leaves and the new person stays.
  • It is illegal to raise the rent to account for any additional subtenants/occupants, even if you have a signed document or addendum to the lease permitting you to do so.  The tenant can file a petition of unlawful rent increase with the Rent Board and obtain a rent credit for those amounts paid above the allowable rent increase amount.  As long as at least one of the original signers on the lease still resides in the apartment, the apartment’s rental amount is restricted by rent control.

 Reprinted with permission of the Small Property Owners of San Francisco Institute (SPOSFI) News.  For more information on becoming a member of SPOSFI or to send a tax-deductible donation, please visit their website at or call (415) 647-2419.

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