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

rental-agreement.jpgMy 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 then 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 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 affect 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.

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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the author

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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  • GlenParker

    I would GUESS that all of the leases that have been signed, with the exception of the one between the landlord and the three original tenants, have all been between tenants and not with the landlord. Once a lease is up in a rent controlled unit it automatically goes month to month. If the landlord is claiming that he can raise the rent to market value when the last original tenant (Josh) moves out I don’t see how there could be another lease signed with the landlord. It would not be in his interest to sign a new lease with a subsequent new tenant and still collect the old amount of rent.

    So the writer has to ask??if her boyfriend has a lease signed by the landlord or just with Josh.??

  • GlenParker

    I would GUESS that all of the leases that have been signed, with the exception of the one between the landlord and the three original tenants, have all been between tenants and not with the landlord. Once a lease is up in a rent controlled unit it automatically goes month to month. If the landlord is claiming that he can raise the rent to market value when the last original tenant (Josh) moves out I don’t see how there could be another lease signed with the landlord. It would not be in his interest to sign a new lease with a subsequent new tenant and still collect the old amount of rent.

    So the writer has to ask??if her boyfriend has a lease signed by the landlord or just with Josh.??

  • Dave Crow

    Yes, that could be a reasonable interpretation of the question and, if true, the landlord could likely increase the rent to market rate.

  • Dave Crow

    Yes, that could be a reasonable interpretation of the question and, if true, the landlord could likely increase the rent to market rate.

  • jmj

    The above is true. But another thing to consider is how the rent has been paid. Has the couple (or the boyfriend before) been paying rent directly to the landlord or to the other tenants who then pay the landlord. In a previous apartment, when my roommate moved out my landlord would not accept rent from the new roomie–all payments had to come through me. I think it had something to do with an implicit rental agreement (and thereby rent control) with the new tenant if the landlord accepted rent from them. I’m not sure what the actual law is, but this would be something to bring up with a lawyer or at the Tenant’s Union.

  • jmj

    The above is true. But another thing to consider is how the rent has been paid. Has the couple (or the boyfriend before) been paying rent directly to the landlord or to the other tenants who then pay the landlord. In a previous apartment, when my roommate moved out my landlord would not accept rent from the new roomie–all payments had to come through me. I think it had something to do with an implicit rental agreement (and thereby rent control) with the new tenant if the landlord accepted rent from them. I’m not sure what the actual law is, but this would be something to bring up with a lawyer or at the Tenant’s Union.