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I Think I Have An Illegal Clause In My Lease

Dave’s at SF Appeal to answer your questions every Wednesday, so send them to him attenant@sfappeal.com, here’s what to make sure to include in your letter.

My father, brother, and I have lived in a three-bedroom rent-controlled flat in SF for the past six years. My brother and father are going to move out in a few months, but I plan to stay. In order to pay the rent, however, I’m going to need one or two roommates, but the lease says (in bold) “even if one tenant leaves, no replacement tenant(s) will be permitted and no additional occupant will be allowed in the unit.”

I’m “named” on the lease as “son #1″ and moved in (with the landlord’s knowledge) at the same time as my brother and father.

Do I qualify as an “original occupant”? If so, do I just start paying the landlord rent once the rest of my family moves? Or do I have to sign a new lease, etc.?

As for roommates, my understanding is that I can have up to two roommates, with the landlord’s permission, per Section 6.15A.

We get along great with the landlord; I just want to ensure that I do everything “by the book” so I don’t put myself or my future roommate(s) at risk of being evicted or otherwise souring our relationship with the landlord.

Good question. I don’t often get a chance to address this topic. What do you do if you have an illegal clause in your lease?

Let me pose a hypothetical question. You’re about to sign a lease for a unit in a San Francisco building built before 1979 with multiple, legal units. It’s the perfect place—a tastefully remodeled, three-bedroom apartment overlooking Dolores Park with a garage, view and a nice deck in the back—$1,500.00 per month. Ah, the good ol’ days…

A clause in the lease, however, states: “Tenant acknowledges that his or her tenancy is subject to the San Francisco Rent Ordinance but waives any and all rights he or she may have under the Ordinance, including but not limited to any right to contest rent increases over and above the annual allowable increases imposed by the Rent Ordinance.”

Do you sign the lease and move in? Hell, yes you do! When the landlord increases the rent to $4,000.00 per month next year, you petition the Rent Board alleging an illegal rent increase and you win.

There are many, less obvious, illegal clauses that one can find in a lease. For example, a tenant cannot waive his or her right to a habitable premises in a lease (Civil Code §1953). Nor can a lease designate a cleaning fee as “non-refundable” (Civil Code §1950.5(m)).

The clause prohibiting the addition of replacement tenants is illegal unless the landlord reduces your rent accordingly. In other words, the landlord could refuse to allow you to sublet to one-for-one replacement roommates, but you can file a petition at the Rent Board to reduce your rent by two-thirds or so.

Yes, follow the procedures outlined in Rent Board Rules & Regulations §6.15A to request new roommates.

If your landlord does not respond, or if he unreasonably refuses your request, citing the illegal clause in the lease, file a petition to determine your lawful rent at the Rent Board. Be prepared to prove that you are Son #1.

I truly hope I’m wrong here, but in my experience, whenever a tenant challenges a landlord’s absolute authority and control, the relationship sours.

Crow & Rose's legal practice emphasizes eviction defense, wrongful eviction and other landlord tenant and real property matters.

I do not provide legal advice in the comments section. Please feel free to contact me directly if you have a legal question.

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