The laws regarding roommates in San Francisco are fairly complicated, and can confuse anyone renting an apartment in the city. It is important that tenants understand some basic facts about their tenancy in order to understand and protect their rights.
First of all, a person gains tenancy (or becomes a tenant) in an apartment by living there for 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. A tenant in an SRO (Single Room Occupancy hotel) gains her rights under state law after 30 days and her rights under the rent ordinance after 32 days.
MORE THAN ONE TYPE OF TENANT
A tenant is defined by his or her relationship to the landlord or the person to whom he or she pays rent. If a tenant pays rent to another tenant, then that person is, in effect, the tenant’s landlord, usually known as the master tenant. Here’s very some basic definitions:
Tenant who moved into the premises under a written or oral contract with the landlord or who inherited the apartment after the original master tenant left. S/he collects the rent from the subtenants and pays it to the landlord. He is also responsible for informing the landlord of repair and other issues.
Someone who has no relationship with the landlord, but instead pays rent to another tenant.
Tenant who may have moved in after the lease was signed, but has established a relationship with the landlord usually through payment of rent directly to the landlord and by requesting services such as repairs. A co-tenant is also someone who moved in with the master tenant and co-signed the lease.
EVICTIONS, RENT INCREASES, ETC.
The master and co-tenants are fully protected under just cause, meaning they can’t be evicted except through one of the reasons spelled out in the rent ordinance (see evictions for a list). The subtenant is also protected if he/she has lived in the apartment for 30 days, moved in after April 25, 1998, and was not informed in writing by the master tenant before she/he moved in that her just cause protection was being waived.
A master tenant can evict a subtenant, but not a co-tenant. A co-tenant can also evict a sub-tenant. But a master tenant cannot evict a co-tenant. A sub-tenant cannot evict anyone. The landlord can only evict all of the tenants in an apartment. It doesn’t matter if only one person has broken the lease. The landlord cannot evict just that one person.
As for rent increases, the master tenant can pass them onto the other tenants when he receives them from the landlord, but they can’t be more than the allowable amount every year (for example, 1.9% of their share of the rent).
When the master and co-tenants move out, the subtenant may or may not receive a rent increase. If the subtenant moved in BEFORE 1/1/96, his/her rent increases only if the landlord gave him/her a 6.14 Notice (see paragraph below for a discussion on 6.14) within 60 days of knowing that the tenant lives there. If he/she moved in after 1/1/96, then the rent increases. The co-tenant, who gained his/her status by being added on to the lease after the original tenant moved in or by paying rent directly to the landlord, would not receive a rent increase unless the landlord gave him/her a 6.14. If that 6.14 was received after payment of rent was made to the landlord, then the co-tenant can try filing a petition against the increase at the Rent Board on the grounds that he had already gained co-tenancy.
A landlord can serve a notice (called a 6.14 Notice, based on Section 6.14 of the Rent Board Rules and Regulations) on a subtenant saying that he recognizes that person merely as an “occupant,” and that when the master- and co-tenants leave, the apartment will be treated as vacant and the rent can go up to market value. Every year after that market rent increase, the landlord can only raise the rent by the allowable amount.
PROPORTIONAL SHARE OF RENT, COPY OF LEASE
The Master Tenant cannot charge you more rent than is fair, based on the proportion of space you occupy and/or share, services provided, etc. In other words, whoever has the largest bedroom should probably be paying the largest share of the rent, unless the other tenants are receiving all sorts of services that the person with the largest room is not receiving. The master tenant cannot live rent-free while the subtenants pay all the rent. For more info on this, see the Rent Ordinance, 6.15C(3).
Before a tenancy begins, the Master Tenant should disclose to the subtenant, in writing, the amount of money she is paying to the landlord in rent. If a subtenant feels that she is paying more than her share, she can file an illegal rent increase petition at the Rent Board and ask that a determination be made on how much she should be paying.
If your roommate is moving out (doesn’t matter if you’re a subtenant, co-tenant or master tenant), you can always replace that person. That is your right under rent control. If your lease says that you can have a certain number of people in the apartment or if the landlord has always allowed a certain number, then you can always have that many people. If your lease says you need the approval of your landlord in writing or that the prospective tenant needs to fill out an application, then that’s what needs to be done. The landlord can only withhold his approval on reasonable grounds.
Standards of “reasonableness” are outlined in Section 6.15 of the Rent Ordinance Rules and Regulations. Basically, the landlord can refuse the person on the grounds of either an eviction on his record or a bad credit rating.
After receiving the roommate replacement letter or the application of the new roommate, the landlord has five (5) days to process the application. If he doesn’t approve the tenant within that time period, then you can file for a decrease in services at the Rent Board.
In the event that your lease says no subletting or assignment, you can still replace a roommate. You just can’t sublet (go away and rent your room to someone during that time) unless you write the landlord for approval. But the landlord does not have to grant it.
By the way, a prohibition on subletting and assignment must be enlarged and bolded in the lease and initialed by the tenant. Or the landlord must provide the tenant a written explanation of the meaning of the prohibition.
If your lease says no subletting or assignment without written permission of landlord, then you need to write for permission and include an application if required by the lease. The landlord has 5 days to process the application.
CHARGE FOR ADDITIONAL TENANTS
If you are under rent control, this is an illegal rent increase under Section 6.13 of the Rent Board Rules and Regulations. A landlord cannot charge more rent for an additional roommate or for a newborn baby. You can file at the Rent Board for an illegal rent increase.
MOVING IN PARTNERS OR SPOUSES
A tenant in a rent-controlled apartment has a right to move in a domestic partner or a family member. Under 6.15D of the Rent Ordinance’s Rules and Regulations, you should be able to do it as long as having another occupant won’t violate the city’s housing code. Under that code, two people can live in a bedroom, three in a one-bedroom apartment (two in the bedroom, one in the living room). Similarly, in a two-bedroom, a maximum of five persons can live there (two per bedroom, one in the living room). You must be registered as domestic partners, though. It’s simple. Go to City Hall and fill out the paperwork.Then send a copy of the certificate to the landlord along with a letter informing him that your partner will be moving in. If you’re getting married, send a copy of the marriage license. Obviously for the family member, you don’t need to register as domestic partners.
(Adapted from info on SF Planning and Nolo websites, thanks to both for help with understanding these regs.) In 2014, the Board of Supervisors made short-term rentals (Airbnb) legal through an amendment to the city’s Administrative and Planning code. The new law applies to short-term rentals in buildings of two units or more by residents who reside in their units for at least 275 days a year.
A tenant who is NOT present in the apartment at the time of the space shares, may rent a portion or all of their residential unit for up to 90 nights a year. Penalty for violation is $416 a day for the first offense and $1,000/day thereafter. A tenant who IS present in their apartment during the space shares may rent it out for an unlimited number of nights per year.
An illegal unit or spaces that are un-permitted cannot be legally rented via Airbnb. Nor can units with outstanding code violations.
In a given month, a tenant can not make more money from space shares than the monthly rent. A unit can be advertised on hosting platforms provided that its registration number (obtained from the Planning Dept.) is listed at the top. Airbnb has said that it is NOT going to check ads for compliance with the law.
Hosts must register with the Planning Department by first scheduling an appointment with a staff member to go over the rules and the application. Fee is $50. The department has 15 business days to review and issue a registration number which is good for 2 years. To schedule an intake, call 575-9179.
EVICTION AND AIRBNB
Tenants must notify their landlords in writing before they engage in short-term rentals of their units. If a lease has a clause restricting subletting, then the tenant is bound by it and if the landlord won’t give permission then the tenant can be evicted for doing Airbnb. If a lease agreement prohibits subletting, a landlord may evict the tenant for violating it by doing Airbnb. A tenant must be given 30 days’ notice to cure a first violation before an eviction is allowed. BUT if the violation is of the lease restriction or prohibition of subletting then no 30-days warning notice is needed, the landlord can proceed with an eviction based on breach of lease.
How to register the unit:
You must be the permanent resident (owner or tenant) of the unit you wish to rent. You must live in that residential unit for at least 275 nights of the calendar year. If you’re a new resident, you must have occupied this unit for at least 60 consecutive days prior to your application. If you own a multi-unit building, you can only register the specific residential unit in which you reside.
You must have an SF Business Registration Certificate from the SF treasurer and tax collector’s office.
You must have liability insurance of $500,000 or more or proof that similar coverage is being provided by any and all hosting platforms through which you’ll rent the unit.
Your residential unit must not have any outstanding Planning, Building, Housing, Fire, Health, Police, or other city code violations. You may only register one residential unit.
(Note: BMR or other inclusionary affordable housing program and residential units or those income-restricted under city, state or federal law are NOT eligible to register.)
Bring the following to your interview:
- A completed short-term residential rental application.
- A Business Registration Certificate issued by the SF Treasurer and Tax Collector’s Office
- Driver’s License or State Issued ID Card issued at least 60 days prior to the short-term rental application date and valid for at least the next 6 months
- Proof of liability insurance in the amount of no less than $500,000
- A signed affidavit agreeing to abide by all conditions of the short-term residential rental ordinance included within the application.
- A $50 check made out to SF Planning Dept.
At least two of the following listed documents to confirm your primary residency at your residential unit:
- Proof of a Homeowner’s Tax Exemption. Accepted as a form of residency confirmation only if the proof of a Homeowner’s Tax Exemption is for a property that is either a single-family dwelling or condo;
- Voter Registration Card or Certificate with the address on the application, issued at least 60 days prior to the short-term rental application date. You may obtain a copy through the San Francisco Department of Elections;
- Proof of Vehicle Registration with the address on the application, issued at least 60 days prior to the short-term rental application date;
- Proof of car insurance, showing address of registration, issued at least 60 days prior;
- Original utility bill, issued by a public utility or PG&E, at least 60 days prior to the short-term application date.
- Copies and printouts won’t be accepted. You may only use utility bills as one form of residency confirmation.
- Cable, cell phone, and internet bills don’t qualify.