15 Rental Rights Every San Franciscan Should Know
*This article was researched and written with help from tenant attorney and Broke-Ass Stuart columnist Daniel Wayne. To learn more about your rights as a tenant check out out Daniel’s other articles here or his website.
Did you know that not all buildings in San Francisco are protected by rent control? Did you know that a master tenant is limited in how much he/she can charge his/her roommates? Did you know that your landlord can’t evict you through an owner move in if you have lived in your rent controlled unit for 10 years and are over 60 years old? These are just a few of the rental laws that every broke-ass should know!
With San Francisco rents now among the highest in the country, keeping that rent controlled apartment might be the difference between staying in the city and moving out of State. Now more than ever, it is crucial that you arm yourself with an understanding of your basic tenancy rights. Here are quick and dirty things to know about renting in San Francisco. However, because these issues get complicated in a hurry you should always consult with a professional.
1. ESTABLISHING TENANCY – A person gains tenancy (or becomes a tenant) in an apartment by living there for more than 30 days and paying rent. They also gain all rights under rent control (if their building is under it) and state law. No actual written lease is needed in order to be a tenant. Of course, it is better to have something in writing to be able to prove the terms of your tenancy.
2.RENT CONTROL: In San Francisco, multi unit residential buildings (2 or more units) built before June of 1979 are subject to rent control pursuant to the San Francisco Rent Ordinance. Tenants who have lived in a single family home prior to 1996 are also protected by rent control. Your landlord is entitled to set your initial rent at market rate and then is restricted on how much he can raise it thereafter for as long as you remain in the unit. If you live in a building built AFTER 1979 it is not rent controlled.
3. EVICTION NOTICES Prior to serving you with an eviction lawsuit your landlord must serve you with a notice. The most common notice is the “Three Day Notice to Cure or Quit” which provides you with an opportunity to fix or “cure” the alleged problem within the three days or “quit” the premises. A three-day notice is not a notice that you will be thrown out in three days, but a warning that your landlord intends to file an eviction lawsuit if you don’t comply with the requirements of the notice. If you get served with an eviction notice you should seek assistance immediately from an attorney or one of the many tenant resources available.
4. OWNER & RELATIVE MOVE IN EVICTIONS (OMI) – Your landlord may be able to evict you in order to recover possession of your unit for his or her own use pursuant to a written 60-Day eviction notice. This is called a “no fault’ eviction. However, to qualify your landlord must provide proper written notice and abide by numerous requirements as outlined in the Rent Ordinance. If the owner lives in the building, she can also evict you so that an adult family member can move into the building. All tenants that have lived in the unit for over one year are entitled to relocation payments. If you are over 60 years old and have lived in the unit for over ten years or if you are catastrophically ill and have lived in the unit for five years or more then you cannot be evicted from a multi-unit building via an OMI or Relative Move In. There are no protections for disabled tenants in non-rent controlled buildings such as single family homes.
5. ELLIS ACT EVICTIONS : Your landlord can also seek to evict you via a state law known as the Ellis Act pursuant to a 120 day eviction notice. Under the Ellis Act, a landlord can evict all tenants in a building by removing the property from the rental market altogether. Like Owner Move-In Evictions, your landlord is required to pay affected tenants statutory relocation payments subject to a cap. If you are 62 years or older, you are entitled to additional time to move, but are not exempt from eviction.
6. SUBLETTING: Most residential leases either ban subletting altogether or require your landlord’s prior written approval. Failure to follow these rules could provide your landlord with a basis for eviction so be careful. For more information check out resident Broke Ass Stuart tenant attorney Daniel Wayne’s article on this subject here. If your lease is oral or is silent on this issue then you can sublet without permission. Some leases contain language prohibiting tenants from replacing an outgoing tenant with someone new. This is generally unenforceable. If a roommate on the lease moves out, you are entitled to a “one for one” replacement. Before you go enforcing this rule on your own though, be sure to talk to an attorney or housing rights counselor.
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7. PARTNERS/SPOUSES AND FAMILY MEMBERS: A tenant in a rent-controlled apartment may be entitled to have his/her domestic partner or family member move in despite lease restrictions on subletting / replacing roommates provided that it doesn’t violate the planning department’s requirements on maximum occupancy. See Section 6.15D of the Rent Ordinance Rules and Regulations for more information.
8. DISCLOSURES FROM MASTER TENANTS: A Master Tenant is required to provide any/all sub-tenants with information about the total rent for the unit prior to a sub-tenant moving in. If you believe you are paying more than your share of the total rent you can file a subtenant petition against your master tenant at the Rent Board. If you prevail at the Rent Board you are entitled to reimbursement for any and all months you may have overpaid rent. How do you know if you’re in this situation? If the master tenant has been living in the unit for ten years and is charging you over $1,000 chances are you are getting overcharged.
9. ORAL SUB-LEASES: If you are a subtenant the master tenant steps into the shoes of the landlord. Unless your master tenant provides you with a written agreement that includes language stating you are not entitled to just cause protections under the Rent Ordinance he/she cannot kick you out without going through the same eviction process a landlord would have to go through. That means providing you with a just cause basis for eviction such as non payment of rent, providing you with a written notice, and filing an eviction lawsuit against you. For more information contact an attorney or housing rights counselor.
10. COSTA HAWKINS & 6.14 RENT INCREASES: If you are not on the lease but pay rent directly to your landlord (not to the master tenant) you may still be entitled to the same rent control protections as an “original occupant” if you can establish that you have created a direct tenancy relationship. Other evidence of such a relationship may include correspondence directly with the landlord / evidence of consent to your tenancy under the same terms as an original occupant/master tenant. This is a very messy area that requires it’s own article to fully explain. The issue of whether a tenant is an original or subsequent occupant leads to countless disputes between landlords and tenants in San Francisco. For clarification about your situation contact the Rent Board or one of the other resources referenced in this article.
11. BUYOUTS: Buyouts have become a common way for landlords to recover possession of rent controlled units. A new amendment to the Rent Ordinance, Section 37.9E requires landlords to provide certain disclosures to tenants prior to negotiating, and to record buyouts with the Rent Board. Buyouts can vary in value anywhere from $20,000 to the six figures depending on the circumstance. For more information see Daniel Wayne’s article on tenant buyouts here. Information is also available from the Rent Board, Tenants Union and any number of other resources.
12. SECURITY DEPOSIT: Most leases require a security deposit upon move in. Your landlord is required to return your deposit within 21 days of move out, minus any deductions for damage to the unit beyond normal wear and tear. At a minimum your landlord is required to provide you with an accounting for the funds that were not returned and include copies of receipts/invoices. Failure to return your deposit or otherwise show the accounting could provide a basis for a small claims action against your landlord.
image from Jumpshell
Landlords often keep security deposits if the tenants break their lease or move out without giving 30 days’ notice in writing. If you break your lease, but a new tenant moves in the day after you leave, the landlord can’t withhold any part of your deposit (you can sue in Small Claims Court if he/she does). If you break the lease and it takes the landlord 2 weeks to find a new tenant, he/she may be able to legally deduct 2 weeks’ worth of rent from your deposit. Always notify the landlord as early as possible, in writing, when you want to move out, to avoid this type of situation and losing your deposit money.
13. WARRANTY OF HABITABILITY Your landlord owes you an implied and statutory duty to provide a habitable premises. California Civil Code Section 1941.1 lays out the obligations of a landlord as it relates to habitability. If you have a problem with your apartment/house you must notify your landlord of the problem and give them the opportunity to make the necessary repairs. Be sure to put any notifications in writing. If your landlord is on notice of the need for a repair and fails to fix it within a reasonable time, this may form the basis for a lawsuit.. If the conditions are particularly bad it might make sense to contact the Department of Public Health or Department of Building Inspection. As with all of these rights before you go out and start withholding rent or throwing accusations at your landlord you should speak with someone about the situation.
14. TEMPORARY EVICTIONS: Your landlord can temporarily evict you if he/she plans to perform capital improvements, seeks to substantially rehabilitate or rebuild the building, or to get rid of lead paint. Any landlord who seeks to carry out capital improvements is required to pay relocation expenses to each authorized occupant, regardless of age, who has resided in the unit for at least one year from $4,500.00, with a maximum payment of $13,500.00 per unit (and more if you are over 60 or disabled). For permanent evictions, you can read all “16 Just Causes” here.
15. AIRBNB AND SHORT TERM RENTALS
The short answer to the question – should I rent out my spare bedroom on Airbnb – is NO!! While San Francisco has enacted legislation that relaxes restrictions on short term rentals, renting out all or part of your unit could still leave you vulnerable to an eviction lawsuit from your landlord for illegal subletting, using your apartment for a non residential purpose, or for illegal use – if you go outside the requirements of the new law. In short, it’s just not worth it.
Register: Hosts are required to register and obtain a permit from the city planning department to engage in short-term renting, and pay a $50 fee every two years. Hosts will also need to obtain a city business license. Short-term rentals will be listed and tracked by the city in a registry. However, the registry listings will be kept internally by city officials. They will not be available to the public unless a public records request is filed.
Insurance: Hosts are required to be covered by liability insurance with at least $500,000 in coverage. Alternatively, they may offer their units for rent through a hosting service that offers at least this much coverage
Hotel Tax: The 14% San Francisco hotel tax must be collected and paid to the city. Airbnb now started collecting and remitting such taxes for its San Francisco hosts.
Rent Control Law: Hosts who are tenants are not allowed to charge their guests more rent than they are paying to their current landlord. Tenants who violate this provision may be fined up to $1,000 per day and could have their units de-listed.
Notifying landlords: The new law does not affect lease restrictions against subletting. It also requires tenant to notify their landlords before they engage in short-term rentals of their units. If a lease agreement prohibits subletting, a landlord may evict the tenant. However, a tenant must be given 30 days’ notice to cure a first violation before an eviction is allowed.
A recent survey done by the Chronicle shows that close to 5,000 San Francisco homes, apartments, and private or shared rooms were for rent via Airbnb, and of these two-thirds were not hosted rentals. Airbnb is costing the city valuable housing stock – do your part by getting educated and by discouraging visiting friends and family from renting a place in the city on AirBnB.
It is important to understand your rights as a tenant in a city with such a vast affordability crisis. The city has seen a mass exodus of long-term tenants and it’s costing our city its diversity and character. It may seem counter intuitive to think long term in such a transient city, but I urge every broke ass out there reading this to get educated. There are many resources here in San Francisco. If you find yourself wondering if you can do something regarding your apartment don’t gamble – ask a professional, it might just save your home.