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ASK A TENANTS RIGHT’S LAWYER: Protecting Your Rent Controlled Apartment

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Ask a Tenants Right’s Lawyer is your chance to learn how to survive as a renter in San Francisco. Every few weeks attorney Daniel Wayne will answer a different question making it so that you have all the info you need to keep you in your home. Got a question? Send an email to alex@brokeassstuart.com and we will forward it on.

rent controlUnless you’ve been living under a rock you’ve probably figured out that rents in San Francisco are among the highest in the country.  As such rent controlled units have become a particularly precious commodity.  Your landlord knows this as well.   In order to protect your tenancy be sure to follow these tips before having a new roommate or significant other move in.

1. What’s in Your Lease? Permissive v. Prohibitive Language

It may seem like once you have signed your lease, your apartment/ house is yours to do what you want with.  If you lived in any other city (aside from New York) you’d be [mostly] right.  However, if you live in San Francisco, Oakland or Berkeley in particular, be sure to review the terms of your written lease agreement before you rent out that extra room, swap out a roommate or ask your significant other to move in with you.

Prohibitive:

When you bring in a new roommate, you are creating what’s known as a a sub or co-tenancy (depending on the situation it could be one or the other).  Many leases include language restricting subletting altogether, meaning that you and whoever else are on the lease are expected to be the ONLY ones living there for the entirety of your tenancy. The San Francisco Rent Ordinance (SF Administrative Code, Chapter 37) dictates that landlords cannot prohibit tenants from replacing an existing roommate on a one for one basis.  However, if you’ve never had a roommate(s) and your lease prohibits subletting be sure to get written permission before moving someone in.

Permissive:

Alternately, many leases include a provision requiring your landlord’s approval for any new roommate. In these situations your landlord can insist that your prospective roommate fill out a rental application and/or meet certain requirements, up to and including requirements for income or credit score [NOTE that there are some exceptions for family members and domestic partners].   If you move someone in without getting your landlord’s permission, you may be in violation of your lease and could be putting yourself at risk of getting an eviction notice.

Your lease may also include language limiting the number of people you can have living in the unit – most leases say that it’s for the people on the lease and no one else to use.  If this is the case and you are increasing the total number of occupants be sure to check both your lease and/or the Rent Ordinance to be sure you aren’t in violation or again, you may be putting your tenancy at risk.

2. Confirm with Your Landlord

After you’ve looked at your lease and determined whether you can sublet and/or if you need your landlord’s permission, contact your landlord.  Don’t assume it’s fine or they won’t find out.  If you are required to get their approval, do it. If you’re afraid that your landlord won’t grant your new roommate permission, don’t worry, pursuant to the SF Rules and Regulations, your landlord cannot “unreasonably” withhold consent. If your landlord requires that your new roommate fill out an application, be sure to submit one and keep a copy of the application for your records. Finally, if your landlord fails to respond to your request / to the application, they can potentially waive their right to object to the candidate altogether. However, to be on the safe side, it’s always a good idea to check in with one of the many tenant resources such as the Tenant’s UnionHousing Rights Committee, or Rent Board, among others.

3. Always Get Consent in Writing

If you’ve gotten approval from your landlord, be sure to always, always, always get it in writing. Seems simple, but all too often disaster could have been avoided by getting your landlord’s consent in writing. Your lease says no roommates but your landlord says that it’s okay? Great, get it in writing. Your landlord requires a rental application from your prospective roommate and approves it? Get it in writing.  This goes for anything that your landlord says is OK but isn’t included in your lease. GET IT IN WRITING.  If it’s not in writing it’s harder to prove if something goes wrong or your landlord later denies agreeing to the deal.  Without written proof  it’s your word against theirs. Spending a few minutes drafting an agreement or insisting that your landlord spell out their consent in a writing could be the difference between keeping your home and searching for a bunkbed on the Craigslist shared housing thread.  Your tenancy is valuable. Be sure to play it safe and protect it.

DISCLAIMER: The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. No attorney-client relationship is formed nor should any such relationship be implied.
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Daniel Wayne - Tenant's Rights Attorney

Daniel Wayne - Tenant's Rights Attorney

Daniel Wayne is a San Francisco based tenants rights attorney and the managing partner of Wolford Wayne LLP. His firm focuses on protecting and asserting the rights of residential tenants throughout the San Francisco Bay Area. He is an active member of the California State Bar, the San Francisco Bar Association, and the Tenants Together Network. He is a regular volunteer at the San Francisco Tenant's Union, and has appeared on 91.7 FM KALW's "Know Your Legal Rights" Program. He received the Outstanding Volunteer in Public Service award from the San Francisco Bar Association in 2012, 2013 and 2014, and has been named a Super Lawyer Rising Star each of the past three years, an honor bestowed on the top 2.5% of Attorneys in their first 10 years of practice. He is originally from Seattle, Washington and makes his home here in San Francisco. You can follow him on twitter at @sftenantlaw or visit his website: www.wolford-wayne.com for more information.