Roommates, Subletting and Additional Occupants
Post date: Jul 21, 2016 7:29:1 PM
Recent amendments to the Rent Ordinance, effective November 9, 2015, may have changed some of the information provided here. The Rent Board is currently considering amendments to its Rules and Regulations that may also affect the accuracy of the information provided here. This information will be updated in the near future. You may contact the Rent Board at (415)252-4602 or visit the office at 25 Van Ness Avenue, Room 320 in San Francisco if you have questions about this topic.
In general, a tenant's right to sublet all or a part of a rental unit (which includes getting a new roommate) depends on whether the lease or rental agreement permits it. If the agreement is silent on the issue, then subletting is generally permitted. Many leases or rental agreements contain a "consent clause," which requires that the landlord approve a new roommate or subtenant. Even where a lease absolutely forbids subletting, the San Francisco Rent Ordinance and Rules and Regulations allow tenants to replace departing roommates on a one-for-one basis, as long as the replacement roommate meets the landlord's regular, reasonable application standards and the tenant is not subletting the entire unit, but only replacing a roommate.
For tenancies covered by the Rent Ordinance, the right to have a specific number of roommates, whether express or implied, is included in the definition of "Housing Services" under the Ordinance. This means that the landlord's unreasonable withholding of consent to a replacement roommate can be the basis of a Tenant Petition for a rent reduction based on a substantial decrease in housing services. The amount of the rent reduction would be the proportional share of the rent that the departing roommate paid.
The Rules and Regulations set forth procedures that a tenant must follow in order to obtain the landlord's consent to sublet. The procedures contain specific time limits that must be followed by landlords and tenants. Section 6.15A contains the procedures for situations where the rental agreement includes an absolute prohibition against subletting. Section 6.15B governs situations where the subletting provision contains a "consent clause." To receive a copy of Section 6.15A or 6.15B, you can fax it to yourself through our Fax Back system by calling (415)252-4660 or visit our website at www.sfrb.org.
A tenant may not be evicted for violating a no-subletting clause if the landlord unreasonably withheld consent to a replacement roommate. Furthermore, for agreements entered into on or after May 28, 1998, a tenant may not be evicted for violating a no-subletting clause unless the prohibition against subletting was adequately disclosed in writing and agreed to by the tenant at the commencement of the tenancy.
The tenant may request the landlord to consent to a new replacement roommate only one time per existing tenant residing in the unit in any 12 month period, absent good cause for additional requests.
The landlord may serve any new roommate with a written notice under Section 6.14 stating that the new roommate is not an "original tenant" and that when the last of the original tenants vacates the premises, the landlord may impose an unlimited rent increase on the remaining occupants.
June 2006
The Rent Board Rules and Regulations prohibit landlords from charging more rent solely for additional occupants, including a newborn child. This constitutes an unlawful rent increase, even if the lease or rental agreement provides for the additional charge. Since the Ordinance provides that tenants cannot waive their rights under the Ordinance, any agreement to pay such additional rent is void as contrary to public policy. Tenants who pay additional rent for additional occupants may file a Tenant Petition to void the increase and obtain a refund of the overcharges.
If a landlord experiences an increase in the costs of operating the building due to additional tenants, the landlord may file a petition for a rent increase based on an increase in operating and maintenance expenses. A landlord may also file a Petition for Approval of a Utility Passthrough if costs for gas and electricity increase.
To receive a copy of the tenant or landlord petition forms, you can fax them to yourself through our Fax Back system by calling (415) 252-4660 or visit our website at www.sfrb.org. The forms are also available at our office.
June 2006
A master tenant may not charge a subtenant more rent upon initial occupancy of the subtenant than that rent which the master tenant is currently paying to the landlord. For tenancies that commenced after May 24, 1998, the master tenant is required to provide each subtenant a written disclosure of the amount of rent the master tenant is obligated to pay the landlord, prior to commencement of the subtenancy. If a subtenant believes that the initial rent paid to the master tenant, either individually or in combination with other subtenants, is more than the master tenant is paying to the landlord, he or she may file a Tenant Petition against the master tenant alleging rent overcharges with the Rent Board.
In addition, effective August 21, 2001, a master tenant who shares a rental unit with one or more subtenants cannot charge any subtenant more than a proportional share of the total rent the master tenant pays to the landlord. The allowable proportional share of total rent may be calculated based on equal division among occupants, or the square footage shared with and/or occupied exclusively by the subtenant, or any other method that allocates the rent such that the subtenant pays no more to the master tenant than the master tenant pays to the landlord for the subtenant's housing and housing services. In determining the proper base rent, additional housing services provided by the master tenant (such as furnishings or utilities) and/or any special obligations of the master tenant and/or evidence of the relative amenities or value of rooms, may be considered.
If the total rent paid by the master tenant to the landlord increases due to a lawful rent increase or passthrough, the subtenant's share of the rent may be proportionately increased without regard to the subtenant's anniversary date. Similarly, if the total rent owed to the landlord by the master tenant decreases, the subtenant's proportional share of rent should be decreased accordingly.
A subtenant who believes he or she is paying more than a proportional share of the total rent may file a Tenant Petition against the master tenant on that basis. If the subtenant prevails, the Administrative Law Judge will adjust the rent to the proportional share and order the master tenant to refund any rent overpayments.
To receive a copy of the Tenant Petition form, you can fax it to yourself through our Fax Back system by calling (415) 252-4660 or visit our website at www.sfrb.org. The form is also available at our office.
June 2006