Dave’s here to answer your questions every Wednesday, so send them to him at firstname.lastname@example.org, here’s what to make sure to include in your letter.
My wife and I recently purchased a 2 unit building as a future home; inheriting the present tenants. The top unit is rented to an individual; in the bottom, three bedroom unit, the rooms were rented out individually as a boarding-house with 2 bedrooms tenant occupied.
Our plan is to move into either unit when they become vacated (we’re in a comfortable rental now, with no rush). However, I have a job where I work from home and the third bedroom in the bottom unit would make an ideal home office. Beside keeping good relations with the current tenants, which we have been careful to maintain; is there anything in the ordinances that would keep this from being allowed?
I’m writing to you, because I think the explanation would clarify matters for tenants in the opposite situation.
Your question underscores an argument implicit in everything I write about landlords and tenants, “They don’t call ’em landlords for nothing.” Unfortunately our culture cedes inordinate power to people who, at the very least, don’t understand how to wield it.
Owning property changes people; and never for the better. Before you became a landlord, would you have imagined that you would be referring to people as property like some modern-day plantation owner? That’s what you did when you said you “inherited” your tenants. While your motives may be honorable, I gotta tell you, you lost me after the first sentence.
Most tenants understand, at least vaguely, that they have the right of exclusive possession of a leased premises. Even unsophisticated tenants figure that a landlord shouldn’t be bothering them if they pay the rent on time. Yet tenants also understand that the power balance with their landlord is so disproportionate that they will go to extreme lengths to avoid pissing him off.
Your vision is so clouded that you fail to consider the impact on the tenants if you came to them with your proposal to, essentially, move into the third bedroom. You may not understand this, but there aren’t many tenants who want to live in the same apartment as the landlord. Let’s face it, even Anna Madrigal had her own unit. So your tenants will resent you, but they may give in because they’re afraid you’ll try to evict them.
While you might not understand this, your motives are suspect. I’ve seen other landlords try to pull this off because they understand that a unit could be exempted from the rent control ordinance if the tenants live in the same unit as the landlord. (See Rent Ordinance §37.9(b).) One could also assume that this is an elaborate ploy to avoid paying statutory relocation payments. Let’s face it, you look like you’re trying to cheap out, rather than just renting an office somewhere else.
The law is not on your side either. You cannot force your tenants to let you maintain an office in the third bedroom. As you may have read in last week’s column, a landlord must evict all of the tenants in a unit to gain possession of any part of that unit.
Similarly the Rent Ordinance §37.9(a)(8)(i), OMI (owner move-in) eviction provision, provides that a landlord may evict a tenant, “For the landlords use or occupancy as his or her principal residence for a period of at least 36 continuous months.”
So let me tell you what I would advise the tenants if they came to me about your proposal to use the third bedroom as an office. I would advise them that they don’t have to agree with the deal. I would also advise them to determine what the total rent for the premises is with three bedrooms occupied. I would suggest they request to legally add a new roommate and create a tenancy of roommates as opposed to a boarding house.
Certainly there are risks involved in that course of action. If one roommate cannot pay the rent on given month, he could jeopardize the entire tenancy. The other roommates would be responsible for making up the difference. But I believe the advantages outweigh the the disadvantages. One of the advantages is a potentially more harmonious home life in which the possessory interest conforms to the law.
If the tenants were okay with you using the bedroom as an office, I would suggest that they make you a subtenant under a written agreement that required you to pay rent to them.
You have stepped into the shoes of a lord. Contrary to the bullshit one sees on TV, commoners do not love their lords. They put up with them because they have to. In this case, your tenants do not have to honor your request.
Image: The Unwelcome Guest, JA Pasquier, 1872
Dave Crow is an attorney who specializes in San Francisco landlord tenant law. However, the opinions expressed in these articles are those of the author, do not constitute legal advice, and the information is general in nature. Consult the advice of an attorney for any specific problem. You understand that no attorney-client relationship will exist with Dave Crow or his firm, Crow & Rose unless they have agreed to represent you. You should not respond to this site with any information that you believe is highly confidential.
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