Surviving Rent Control When You’re Not the Master Tenant

Ask a Tenants’ Rights Lawyer is your chance to learn how to survive as a tenant in San Francisco. Tenant’s Rights Attorney Daniel Wayne has a lot of the information you need to keep you in your home. This month’s topic: roommate rights and relationships. For more posts from Daniel check out his blog at www.wayne-law.com/blog. Have a suggestion for a topic you want Daniel to tackle? Send an email to alex@brokeassstuart.com and we will forward it on.

Living the Subtenant Life: Rights and Responsibilities

For many people in the Bay Area, sharing a home with housemates, friends, distant relatives, or Craigslist subletters is just a fact of life – like BART delays or six-dollar toast.

But how much do you know about your legal status as a subtenant? Depending on the details of your lease agreement (or lack thereof), your rights in relation to your landlord and housemates might vary a great deal. There are a number of different dynamics that come up in landlord/tenant situations and each one carries with it different rights and responsibilities. This month we will explore these relationships and how they affect your rights.

Co-tenants vs. Master / Subtenants

Housemates who have equal rights in their relationship with the landlord are typically considered “co-tenants.” Co-tenants have a direct relationship with the landlord. Most commonly this is reflected in the form of a written lease agreement which names all co-tenants and the landlord/s. Co-tenants also pay rent directly to the landlord. They cannot evict one another, and are “jointly and severally liable,” which means, among other things, that each of them is legally responsible for paying the entire rent if the other tenants can’t–or won’t–pay, or cause damage to the apartment.

A master tenant / subtenant relationship, by contrast, is typically created when one or more housemates move in before the other/s. The most common situation is one in which someone on the lease moves out; the other/s stay and replace them with new people – subtenants. Master tenants are therefore typically named on the written lease (if there is one), and are responsible for writing rent checks to the landlord. Most landlords will only deal with a master tenant and refuse to engage with subtenants as a means to avoid creating complicated landlord/tenant relationships (but this is a whole different topic).

As a rule, if you pay your rent directly to the master tenant, don’t have a direct relationship with the property owner, and are not named on the owner’s written lease agreement, you’re probably a subtenant.

Well these look like pretty happy roommates!

Duties / Responsibilities of Master Tenants

Because a subtenant has no direct relationship with the landlord, a master tenant takes on the role of landlord in relation to any subtenants they may have. This means that the master tenant takes on many of the basic responsibilities and duties of a landlord, including the right to collect rent and to evict.

In practice, this often works out smoothly among housemates, with the master tenant simply acting as the point person in communications with the property owners. However, just like with landlords, we sometimes come across situations where master tenants have abused their power or neglected their duties. To avoid a messy situation for all involved, it’s important that both master tenants and subtenants be aware of their rights and responsibilities to one another.

Subtenants’ Rights

To prevent subtenants getting pushed around, Section 6.15C of the SF Rent Ordinance Rules and Regulations clarifies certain rights.

Eviction Protection

First, just like all San Francisco tenants in buildings built prior to 1979, SF subtenants whose tenancies began in May 1998 or later cannot be evicted without just cause. BUT, under San Francisco law, a property owner cannot deprive tenants of eviction protection, even if the tenants “sign away” those rights in a written lease. In a sublease agreement, however, a subtenant may be deprived of eviction protection, provided the master tenant gave him notice in writing prior to commencement of his subtenancy. (See Section 6.15C(1) of the Rent Ordinance.) If a sublease specifically states that a subtenant is not entitled to eviction protection, that subtenant can be evicted by the master tenant without any reason provided, upon proper notice.

Petitioning the Rent Board

Just like any tenant, subtenants can petition the Rent Board in cases of illegal rent increases, decreases in housing services, or failure to maintain or repair the unit. The only difference? Subtenants who don’t have a relationship with the property owner will affix the relevant petition to a “Subtenant Petition,” and name their master tenants (rather than the owner) as landlord.

Setting Rent

When the master tenant and the subtenant(s) are housemates, the Rent Ordinance is clear: the master tenant can charge each subtenant “no more than the subtenant(s)’ proportional share of the total current rent paid to the landlord by the master tenant for the housing and housing services to which the subtenant is entitled under the sub-lease” (Rent Ordinance Rules and Regs Sec. 6.15C(3)). That is, if you’re renting a room in a three-bedroom flat, you should be paying close to one-third of the total rent.

However, there’s some wiggle room in determining each housemate’s “proportional share.” The share should be based on square footage, but extra amenities may also be considered. For example, your master tenant could charge you a larger share if you have a private bathroom, a primo view, or sole access to a parking space.

And if the master tenant provides, for example, furnishings or kitchenware, or is solely responsible for dealing with rent and utility bills, these could be considered extra “housing services” that might justify higher rent payments for subtenants.

To protest a disproportionate share of rent or unlawful rent increases by the master tenant, subtenants may file a petition with the Rent Board. The subtenant should provide the total rent for the unit (if known) and the amount paid by each housemate.

Following the subtenant’s filing of this petition, a hearing will be scheduled at which the master and subtenant will get the chance to provide additional evidence and argue their respective sides. If the subtenant prevails, the Administrative Law Judge (ALJ) may adjust their base rent and order the master tenant to refund back rent. Each party may retain an attorney to represent them at the hearing if they so choose, though representation is not required.

But What if I Don’t Know What the Total Rent Is?

Of course, to figure out their equitable share of rent, subtenants first must find out how much the master tenant is paying to the landlord.

When a subtenant first moves in, the master tenant is obligated to disclose the unit’s total rent. And in order to petition the Rent Board to dispute their share of the rent, the subtenants must know both the rent that the master tenant pays the landlord, and the rents of all other subtenants in the unit. If you don’t have that information, and your master tenant refuses to disclose it, your first step would be to write your master tenant a letter citing the Rent Board’s Rule 6.15C(2).

To some degree, you should be able to tell if you’re getting overcharged based on whether 1) the place is rent control, and, if so, 2) how long the master tenant has lived there. For example, if your master tenant has lived in the unit for ten years but you’re paying $1,500 a month or more in rent – you’re probably being overcharged.

Rocking the Boat You’re Riding In

If you feel you’re being taken advantage of, it’s easy to let relations with your master tenant get contentious, and your home may get uncomfortable very quickly. Don’t lose sight of your end game: at the end of the day, your subtenancy is only “worth” something if you can stand to live there. And, as most long-term San Franciscans will tell you, it’s seldom desirable to start a war with someone you have to share your kitchen with.