How Do I Add a New Roommate or Replace One Without Getting Evicted?

Ask a Tenant Attorney is your chance to learn how to survive as a tenant in San Francisco. Each month Tenant’s Rights Attorney Daniel Wayne addresses a different issue for residential tenants. For more information about Daniel and his firm, check out his website at www.wayne-law.com. Have a suggestion for a landlord-tenant issue you want Daniel to address in the column? Send an email to alex@brokeassstuart.com and we will pass it along! This month’s column was co-written by Daniel and his associate Anthony Burchell.

In a city where the average one-bedroom apartment goes for $3400 a month, many San Franciscans have roommates to help pay the rent. But, what happens if your roommate moves out? Can you just replace them? What if you want to add an additional roommate but haven’t had one before? In this article, we attempt to address common issues surrounding adding and replacing roommates. **Note that this information applies specifically to tenants living in buildings that are subject to the San Francisco rent ordinance – i.e. residential buildings built prior to June 1979 in San Francisco! As always, we recommend talking to someone about your specific situation before taking action to be sure that you don’t have any issues.

One of my roommates is leaving. Can I replace that person?

Yes. Tenants have the right to replace outgoing roommates on a “one for one basis,” meaning that when someone moves out, the remaining tenant(s) can replace the outgoing roommate. Though some leases prohibit subletting altogether, the law allows tenants to replace a roommate up to the number of people on the original lease, no matter what the lease says. However, as explained below, there are some specific guidelines you need to follow in order to do this.

I have never had a roommate, but I want to add one now. Can I do that?

Yes! Thanks to a change in the laws in 2015, tenants may add additional roommates provided that doing so does not violate occupancy limitations. Currently the occupancy limits are: two people in a studio; three in a one-bedroom; four in a two-bedroom; six people in a three-bedroom; and eight in a four-bedroom. Thus, even if you live in a one-bedroom by yourself, you could still add up to two roommates regardless of what your lease may say.

So can the new person just move in?

Not quite. While you are entitled to replace an outgoing roommate or even add new roommates as described above, there are specific procedures you have to follow. Failing to follow the proper procedure could put you at risk of eviction.

What are the Requirements for Adding / Replacing Roommates?

If your lease (verbal or written) requires you to get approval from your landlord to add or replace a roommate, then you can’t just move new people in. Instead, get permission first by following these steps:

1. Notify your landlord in writing: Before moving anyone in you will first need to notify your landlord in writing that you wish to have a new person move in. Seems obvious, but a paper trail is crucial in case there is a dispute later. The law also requires that the request be made in writing.
2. Sit Tight: Your landlord has 14 days from the day they receive your request to approve or deny the request. Note that the way the 14 days are counted can be tricky depending on whether you mail or email the request. If you receive no response within this timeline then your landlord has waived their right to object and you can move the new tenant into the unit.
3. Comply with Background Checks / Rental Applications: Your landlord can ask for more information about the new roommate before approving them. They can run a background check, or require the person to fill out a rental application. Your landlord has five days to make these requests, and your new roommate has another five days to comply. For the exact language on this, take a look at Rent Ordinance Rules and Regulations Section 6.15E(b) and (c).

It’s worth noting, your landlord might also ask about your would-be roommate’s income or credit. But unless your new roommate is going to pay rent directly to the landlord, your landlord does not have a right to ask for information about your new roommate’s income level or credit score. If you’re the one cutting the final checks, your roommate doesn’t have to share any financial information with the landlord.

Does My Landlord Have to Accept My New Roommate?:

 While the laws greatly restrict a landlord’s ability to reject a potential roommate, there are still some circumstances where a landlord CAN refuse to provide consent. These include: 1) where the landlord lives in the same unit; 2) where adding the new person would exceed occupancy limitations; 3) where the proposed tenant would be obligated to pay some/all of the rent directly to the landlord and had bad credit; 4) where the proposed tenant has intentionally misrepresented facts in their application; 5) where the additional tenant presents a direct threat to the safety, security, or physical structure of the property; or 6) where an additional tenant would cause a financial hardship to the landlord (though this requires a rent board determination).

The good news is, your landlord cannot unreasonably refuse your new roommate. As long as you follow the procedures above, and your new roommate would otherwise meet the criteria your landlord has set for other tenants, your landlord cannot unreasonably refuse your request.

Great! So can I call my Air BnB guests “roommates” and call it a day?

Dear god no. First, stop renting your place on AirBnB, but also, you don’t have an unfettered right to a revolving door of new roommates. You are limited to replacing each roommate once every twelve months. You could potentially work something out to get beyond this restriction but you can’t just keep adding and rotating roommates month in and month out. Also, bear in mind that these rules don’t change the laws about rent increases when the last “original occupant” moves out.

Because these rules can be tricky and somewhat technical, be sure to get clarity on the best way to handle your situation before diving in.