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Am I Still The Master Tenant If I Moved Out Of My Apartment For Six Years?

Am I Still The Master Tenant If I Moved Out Of My Apartment For Six Years?

Am I Still The Master Tenant If I Moved Out Of My Apartment For Six Years?

I live in an apartment building that has six units, built in 1907, in the Mission, near Dolores Park, in San Francisco. My brother and I and a 3rd roommate signed a one-year lease in 2004. In the last 8 years our apartment has been a revolving door of tenants, each we have subleased without the landlord knowing. They are very hands off and don’t ever visit or seem to care about the property as long as they get a check each month.

In 2005, I moved out along with the 3rd roommate on the lease, leaving my brother as the only original lease-signer living in the apartment with two subletters. We never told the landlord.

Fast forward 6 years and I move back in to the apartment, around January 2011, with my brother and a 3rd roommate not on the lease, let’s call her Jamie. Sorry as this gets complicated. My brother moves out in August 2011 and now I am writing the check to the landlord every month for the entire rent amount and I am now the only original lease-signer living here.

I subleased to somebody else, let’s call him John, when my brother moved out, and now our relationship is very rocky. I want to kick John out, and he wants me to leave. I am unsure of my rights and his rights at the moment.

He wants me to leave, but I think that since I’m the only original lease-signer still living here, if I left, Jamie and John would probably be kicked out and the rent would increase; if my landlord even allowed them to stay or sign a new lease.

As far as my landlord knows, I’ve been living in the apartment since my original lease signing, with my brother and the original 3rd roommate, and they have no idea other people live here other than us. This apartment is rent controlled as well.

So, what happens if I leave and nobody on the original lease lives here to write them a check? Am I within my rights to evict John who I’ve been subletting for the past year? What happens if John and I cannot resolve who leaves the apartment, and neither of us will leave willingly?

Whew! Before I answer your question, I have to tell you, “Warning! Warning! Danger! Danger!” If your landlord gets wind of these facts, he may be inclined, given the current rental market, to evict you for illegal subletting. If you plan to stay in the apartment, you should begin to seek permission to sublet for each new roommate you you take on. But that’s for the future.

Technically you are not an original occupant because you moved out for six years. If you find yourself in a Rent Board hearing of some sort, you will not be able to testify, under oath, that you are an original occupant. That could be a problem. You won’t have a great defense based upon the fact that the landlord has continued to accept your rent checks. The landlord can claim that he was ignorant of the facts and that he would not have accepted your checks had he known the truth.

Hypotheticals aside, when you vacate, the landlord will very likely assume that you are the last remaining original tenant. He will certainly be able to increase the rent to market rate pursuant to Rent Board Rules & Regulations §6.14.

Moreover, the roommates are unapproved subtenants and the landlord can evict them using Rent Ordinance §37.9(a)(7) which articulates a just cause allowing a landlord to evict holdover subtenants if “[t]he tenant holding at the end of the term of the oral or written agreement is a subtenant not approved by the landlord.”

You are correct in your first assumption.

I don’t think you have the right to evict John because you don’t have the standing to do so. In law, standing means the status of being qualified to bring a legal matter before a court because a plaintiff has a sufficient and protectable interest in its outcome. Only a master tenant can evict a subtenant. Technically speaking you are a master tenant, but you cannot demonstrate that you are an original occupant because you moved out for six years, unless you lie. Problem.

Even if you do have standing to evict John, unless he signed a sublease or other document that clearly stated his subtenancy was exempt from the just cause provisions of the Rent Ordinance, you cannot simply serve him a notice to vacate without cause. (See Rent Board Rules & Regulations §6.15C.)

As you presented them, the facts don’t seem to rise to the level of a just cause under the Rent Ordinance.

So, no, I don’t think you can evict John, but he cannot evict you either.

Finally, if you and John can’t resolve the issues between you, it looks like somebody’s gonna have to move. But to paraphrase the late Rodney King, Why can’t you all just get along?

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My Master Tenant’s Fallen In Love, Am I Screwed?

My Master Tenant’s Fallen In Love, Am I Screwed?

My Master Tenant’s Fallen In Love, Am I Screwed?

Renters wait for hours to apply for a Tenderloin studio apartment priced at $2500.00 per month.

Master tenant in love

So in the midst of Rentpocalypse 2012, I managed to score a nice room in a spacious flat at a reasonable rate. I know, right? It’s been a good year. Concurrently, however, the master tenant has fallen a little head-over-heels for someone and has increasingly been spending time at their place. As in enough time that even her cat spends more nights over there than in the apartment lately.

I’m thinking there’s a non-zero possibility that she could be moving out, and possibly soon. Not to push my already good luck, but I was wondering: As a subtenant, what are my rights if she gives notice? Would I have to negotiate a new lease entirely? Would I inherit any rent protections? The only interaction I’ve had with the landlord, in writing or otherwise, was a check written out to him personally for August rent, which he cashed.

Master tenant in love? Welcome to Rentpocalypse 2012! Have a seat, but don’t stay too long.

As you might guess, this is a common scenario, but at least you are in the position to gather information and make some plans.

You don’t mention how rent the landlord is receiving for the flat. If your roommate has leased the unit for fifteen years and the rent is $2,000 per month below market, the landlord will have plenty of incentive to increase the rent if your roommate departs. On the other hand, your roommate will have plenty of incentive to keep the place until she is absolutely certain she wants to move.

You need to speak to your roommate and ask her if she has any future plans to move. Point out that it is important to understand her plans because it’s likely that you will either have to pay increased rent or move as well. Read last week’s column to understand why.

Essentially you are a subsequent occupant as defined by Rent Board Rule & Regulations §6.14(c). Your landlord will be entitled to increase the rent when you vacate.

I don’t put too much stock in the argument that because the landlord cashed a couple of your checks, you’ve established a new tenancy. The Costa Hawkins Rent Housing Act (which should be repealed) in Civil Code §1954.53(d)(4) states:

“Acceptance of rent by the owner shall not operate as a waiver or otherwise prevent enforcement of a covenant prohibiting sublease or assignment or as a waiver of an owner’s rights to establish the initial rental rate unless the owner has received written notice from the tenant that is party to the agreement and thereafter accepted rent.”

You should keep paying the rent to the landlord because the longer that goes, the stronger the argument that you are a party to the agreement. But you should not have any illusion that you can keep renting the flat at the current rate simply because you paid rent directly to the landlord.

Go to the San Francisco Tenants Union to more fully discuss your potential issue.

More importantly, talk to your roommate. Hopefully, she doesn’t have any immediate plans to move. Knock on wood. Maybe you can ride out Rentpocalypse.

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If Our Roommate Moves Out, Can Our Landlord Jack Up Our Rent?

If Our Roommate Moves Out, Can Our Landlord Jack Up Our Rent?

If Our Roommate Moves Out, Can Our Landlord Jack Up Our Rent?

My home is a duplex with my landlord living in the apartment above. It was built before 1979.

The original tenants moved in two and a half years ago. We will call them Dan, Josh and Ted. Ted moved out after the first year and my boyfriend moved in and signed a year lease with Dan and Josh.

After a year Dan moved out and I moved in but I did not sign a lease, my boyfriend and Josh signed a six month lease.

The six month lease is nearly up and my boyfriend and I would like to renew with a year lease without our third roommate Josh. My landlord wants to raise our rent claiming “the original tenant is moving out.”

My boyfriend has now been on two leases (one for a year and the other for 6 months) in this apartment, is he not considered an original tenant at this point? Is my landlord allowed to raise the rent any amount they wish? We have always paid on time and have never complained nor been complained about in this apartment and I am worried we will be taken advantage of if we don’t familiarize ourselves with the SF laws.

It’s not completely clear to me if the leases your boyfriend signed were subleases or leases also signed by the landlord. I’m going to assume that when your boyfriend originally moved in, he and Dan and Josh all signed a new lease with the landlord. I’m also assuming that your boyfriend and Josh signed the six-month lease with the landlord.

As you are probably aware, if your boyfriend only signed a sublease with the original tenants, your landlord may be able to increase the rent.

This is why a lawyer may ask questions to which the answers seem obvious. When you stated that your boyfriend “moved in and signed a year lease with Dan and Josh,” I thought he may have signed a sublease. The rest of the facts, however, indicate to me that the leases were negotiated with the landlord. Of course, the distinction is crucial to determining if your boyfriend is a co-occupant or a subsequent occupant.

Given my assumption, your boyfriend is clearly a “co-occupant” for purposes of the Rent Ordinance Rules & Regulations §6.14(a)(3): “‘Co-occupant’ for purposes of this Section 6.14 only, is a subsequent occupant who has a rental agreement directly with the owner.”

Rules & Regulations §6.14(c), the section applicable to your boyfriend, states: “When all original occupant(s) no longer permanently reside in a rental unit, and the last of the original occupants vacated on or after April 25, 2000, the landlord may establish a new base rent of any subsequent occupant(s) who is not a co-occupant and who commenced occupancy of the unit on or after January 1, 1996 without regard to the limitations set forth in Section 37.3(a) of the Rent Ordinance…”

Note that your boyfriend is not an original occupant within the meaning of §6.14 (a)(1): “Original occupant(s)” means one or more individuals who took possession of a unit with the express consent of the landlord at the time that the base rent for the unit was first established with respect to the vacant unit.

That brings up another issue. If the landlord increased the rent more than the Rent Ordinance annual allowable increase in one or both of the subsequent leases, you may be able to petition the Rent Board for an illegal rent increase.

Between you and me, when I read your question I thought, “WTF, the guy’s named on the lease. This landlord is out of his frickin’ mind!” But when I reread §6.14, which as usual, has the effect of a combination of Seconal and Wild Turkey, I understood your landlord’s confusion. Your boyfriend is not an original tenant/occupant, but the landlord still cannot increase the rent.

Rules & Regs §6.14 issues are always complex and one should always discuss them with someone trained in the nuance of the Rent Ordinance. Where can you find such a person? At the San Francisco Tenants Union! You can go over the facts with a counselor there and fashion a letter stating the applicable law, informing the landlord that he can’t increase the rent over the allowable limit.

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Why Can’t My Wife Sign Our Rent Check?

Why Can’t My Wife Sign Our Rent Check?

Why Can’t My Wife Sign Our Rent Check?

The weirdest thing happened today. My landlady sent me a note saying that I should be signing the rent checks (I have been doing this till now but the last check was written by my wife). We have a joint account and when I signed the lease I put my wife’s name on the lease.

I feel my landlady is bordering on harassment (there are other incidents) with these nonsensical notes she keeps leaving for me.

What is the law on this? Am I the only one who can pay her? What difference does it make, if the money is from a joint account and she can very well cash the checks?

If you are the only signatory to the lease, one could argue that you should be the one signing the rent checks. If both you and your wife are named on the lease then your landlord is just being an idiot.

Your landlord probably read some half-baked legal argument somewhere that advised her to be cautious about inadvertently accepting subsequent occupants.

If you are the only named tenant on the lease and you want to take care of this once and for all, you should read San Francisco Rent Board Rules & Regulations §6.15D. Section 6.15D outlines the process by which you can add your wife to the lease as an approved subtenant.

If you and your wife moved into the unit together and the land lord was aware of that fact, you can simply tell the landlord that your wife is a “co-tenant” entitled to all of the same rights you have. You should be familiar with San Francisco Rent Board Rules & Regulations §6.14 before you make that claim.

I’m guessing that your landlord simply doesn’t know what she’s doing as evidenced by the notes (always wonderful damning evidence if a case comes to court.) Your landlord is also too cheap to hire an attorney to advise her about how to professionally manage her building.

What difference should it make? Not a bit. Especially when the Costa Hawkins Rental housing Act, which screwed rent-controlled tenants everywhere in California and should be repealed says:

Acceptance of rent by the owner shall not operate as a waiver or otherwise prevent enforcement of a covenant prohibiting sublease or assignment or as a waiver of an owner’s rights to establish the initial rental rate […] California Civil Code §1954.53(d)(4).

I’d be willing to bet that you have lived in your unit for about five years. That’s the time  some landlords begin to exhibit their “eccentricities.” Your landlord probably thinks it’s time for you and your wife to go so she can give herself a pay raise.

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Are There Penalties For A Late Security Deposit Interest Payment?

Are There Penalties For A Late Security Deposit Interest Payment?

Are There Penalties For A Late Security Deposit Interest Payment?

I have lived in a 4-unit building in San Francisco since 1990 that was built in the 1920’s.   My building has been sold and the new landlords are doing an OMI eviction in my unit (longest term tenant, lowest rent, other vacant but different units in the building).   I paid a $950 deposit in 1990, but have never received any interest.  

My question is this:  since I have never received interest and the landlord had my money all of these years, making interest, is there some provision for receiving for getting a higher payment because they kept my interest payment?

There is no penalty for late payment in San Francisco Administrative Code Chapter 49 which governs security deposit interest in San Francisco. In fact, Administrative Code § 49.3 only provides:

The rights, obligations and remedies of tenants and landlords under this Chapter shall be as provided in Subsections (f), (g), (h) and (j) of Section 1950.5 of the California Civil Code.

It is important to understand that the new landlords will be obligated to refund your security deposit and interest if you vacate and deliver the premises in good condition absent ordinary wear and tear. California Civil Code § 1950.5(h) provides that method by which a security deposit (plus interest in San Francisco) must be transferred from a former owner to the new owner. If the transfer is done correctly the new owner steps into the old owner’s shoes. (California Civil Code § 1950.5(k).)

If the security deposit is not transferred from the old owner to the new, the new owner will still be “jointly and severally liable with the landlord for repayment of the security deposit.” (California Civil Code § 1950.5(j).) In case the new owners do not return your security deposit, this section means that you should sue both the old owner and the new one.

To figure the interest on deposits, I have been using the “SF Security Deposit Interest and Rent Board Fee Calculator” from ReLISTO.com. You can find it and many other useful listings for tenants on the Crow & Rose Tenant Resources page.

Using a hypothetical January 1, 1990 date for the inception of your tenancy., the interest owed on your deposit would be $637.11. That includes a deduction for payment of half of the Rent Board fees since 1999, a deduction landlords are allowed to bank and deduct from your deposit (that is, if the fees were paid.)

Should the Board of Supervisors enact a penalty for that late payment of security deposit interest in San Francisco? Perhaps.

But if you’re pissed off about that, then you should take a look at the list of security deposit law reforms for California that  I suggested back in 2009, only one of which has been passed–raising the small claims court jurisdictional limit to $10,000.00.

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Can Our Landlord Kick Us Out When Our Roommate Moves?

Can Our Landlord Kick Us Out When Our Roommate Moves?

Can Our Landlord Kick Us Out When Our Roommate Moves?

I’ve lived at my home for over 2 years, my girl friend and I replaced two roommates who were on the original lease. The house was built in the 1940s and monthly rent has been $2400 the entire duration of lease. The original roommate still left on the original lease is moving out on the first. We would love to stay at the home and replace his room with a good roommate.

The landlord has contacted us stating that he needs us to fill out an application for a new lease – as well as pay a security deposit for the home. To make a long story short, the house has been in terrible shape since we moved in due to the prior roommates who were kicked out- holes in walls, filthy pet damaged carpets, plumbing leaks, paint peeling inside and outside, possible roof leaks/mold, leaking/moldy basement, large gashes in a few walls, broken doors throughout home and the front door frame is extremely damaged and not secure from a safety standpoint.

We spoke to the landlord for the first time today and he wants to meet us to discuss the application and what will happen after he conducts a walk thru with the old roommate to figure out how much security they will get back. After being told about the security deposit and need to show the room to potential roommates.

We asked if/when he would do things like paint and replace carpets and make fixes to the home because of the extreme shape the home was in and he gave us the impression that he wasn’t planning to fix anything and it was up to him to decide if we can even stay here and if he will fix anything while requiring a security deposit.

I’ve done some research and saw that we might qualify for a novation from our roommate who is moving out, which would then make us responsible for paying him any security deposit that would be due back. I do not know if this would be a option for us?

We are just worried that the landlord will either kick us out after we fill out a application, require a huge security deposit without making any fixes to the home or raise rent to an extreme amount. We are in great standing with our old roommate so I’m sure he would be ok with a novation or another option I don’t know about.

What are our options at this point? We are PT students with FT jobs, so a rent raise, having to suddenly move or huge deposit requirement would be too much for us at this point. I would appreciate any advice you could send me- thank you for your time spent on my questions.

I worked at the Homeless Advocacy Project while I was attending law school. In the first year of law school one usually studies contracts. In my case the class was two semesters. I came across the concept of “novation” one day and I asked my boss, a former California Supreme Court clerk, to clarify the meaning.  She looked at me, wryly smiled and said, “You know, Dave, it’s been a long time since I was in law school, but I think novation occurs when the sun goes supernova.”

I still get a laugh when I think of that moment and I have come to understand the irony of her comment–discussing the legal concept of novation in an office full of people desperately trying to survive a bit like rearranging deck chairs on the Titanic.

A novation is the substitution of all new parties in an existing contract. For example, if you stay in the house under the old lease, the landlord is essentially allowing the old roommate to assign the lease to you. By offering you a brand new lease, the landlord is offering a novation. Signing a new document with your roommate, depending on the terms of the existing lease, is usually a waste of time.

Back to my original point, you’ve got bigger fish to fry.

Remember, because you live in a house, a single-family dwelling, you are only protected by the “just cause” provisions of the Rent Ordinance, not the price controls. The landlord can increase the rent as much he wants unless:

1) The dwelling or unit has been cited in an inspection report by the appropriate governmental agency as containing serious health, safety, fire, or building code violations, as defined by Section 17920.3 of the Health and Safety Code, excluding any violation caused by a disaster.
(2) The citation was issued at least 60 days prior to the date of the vacancy.
(3) The cited violation had not been abated when the prior tenant vacated and had remained unabated for 60 days or for a longer period of time. However, the 60-day time period may be extended by the appropriate governmental agency that issued the citation. (California Civil Code §1954.53(f))

However, because you may be approved subtenants, despite the landlord’s request for new applications, it is unlikely he has just cause to evict you, unless he wants to hold you and your roommates responsible for the damage caused by the former roommates (waste).

I think you’re doing everything you can to try to convince the landlord you can be good tenants. I understand that the rental market is tough out there, but why would you want to continue to rent from a slumlord who won’t spend the money to fix a leaky rook? Believe me, from your description, the roof leaks. Why should you have to spend the time and money to repair deferred maintenance? I do believe that you should repair damage caused by you or the other tenants, but that’s it.

Finally, let’s say the landlord does make an agreement with you. You lease the house and sign a one-year lease. Let say you fix up the place and make it cozy. That will certainly give the landlord incentive to increase the rent to whatever the market will bear next year.

If you really want to try to make a deal with the landlord, take your photos and documents to the San Francisco Tenants Union to develop a strategy, which may include calling a housing inspector.

My personal opinion is that you shouldn’t waste your time and energy on this joint. You should be looking for another place to live. You know, bigger fish to fry.

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Can My Landlord “Bank” My Annual Rent Increases?

Can My Landlord “Bank” My Annual Rent Increases?

Can My Landlord “Bank” My Annual Rent Increases?

I live in a 15 unit building that was built in 1907. I’ve lived in my small one bedroom apartment for 19 years, and in that time, the building transferred ownership once, in 2001. At that time, the new owners tacked on a rent increase because of “capital improvements,” and this was an increase that actually ended in 2011, so my rent returned to its 2001 price last year.

The landlord hasn’t raised my rent in the past 4 years, not even the small yearly increase that is allowable by law. So my question is, why would a landlord choose NOT to raise rent if they are legally able to? I can’t imagine it’s just to be nice. Is it likely they are banking the increases so they can throw four years worth (or more) at me all at once? And is that even legal?

Is the landlord foregoing the annual allowable rent increases to be nice? I doubt it. Is this some scheme to dump a huge increase on you in the future to force you to move out? I doubt that too. Never ascribe to malice that which can adequately be explained by incompetence. I often substitute the word stupidity for incompetence. In your case it’s probably neither, unless you believe that business decisions are always inherently malicious–an apt conclusion these days.

The annual allowable rent increases under the San Francisco Rent Ordinance for the past four years are, cumulatively, 6.7%. If your landlord has multiple properties, he could be waiting to increase the rents when it is more profitable to do so. He may not think it’s justified to incur the expense to to recalculate the rent and send out notices for, in your case, a 6.7% increase in gross revenue.

By law, a landlord may bank the annual allowable increases. There is no limit to the amount of rent increases that can be banked since April 1, 1982 and there is no time limit for imposition of these banked amounts. Indeed, I have seen banked increase notices that go back all the way to 1982, usually imposed by new owners seeking to immediately increase a building’s income. Is it fair? No. Is it legal? Yes.

As I said a couple of weeks ago. Courts have, time and again, decided that landlords must be able to get a fair return on their investments. Banked increases are a part of that scheme. Landlords will point out that a banked increase is not retroactive and that you should be grateful for all the money you saved over the years.

San Francisco Tenants: You need to understand that your landlord can, at any time, make up for years that he did not increase your rent by “banking” the annual allowable increases and charging them all at once. California Civil Code § 827 requires a landlord to give you a 60-day notice for such an increase if that cumulative increase is over 10% of your existing rent.

Banked increases will almost always be imposed by new owners. If your building has recently been sold and the old landlord has not increased the rent for awhile, plan on a banked increase. For that matter, all San Francisco tenants should always plan for a banked rent increase.

To paraphrase Anonymous, the internet hacktivist collective, “Landlords: They are legion, they do not forgive, they do not forget. Expect rent increases.”

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