Tenant Troubles: Can Someone Be A Subtenant If They Aren’t Paying Rent?

Dear Dave,

I like your column, you appear to be on the slightly radical side of liberal. 🙂

Last August you wrote:

“Many tenants are confused about the definition of subletting. If you lease a premises, even on a month-to-month basis and you charge another person to rent the entire premises or a portion of the premises without somehow changing the lease by adding her as a tenant, you are subletting. You are the only person liable to the landlord to perform the various obligations of your lease.”

What if no money changes hands? What if the person living there is just feeding the cat and taking care of the place until the renter returns from vacation, skilled nursing facility, etc? Does this still legally constitute a “sublet”, or a renter?

I’ll be happy to elaborate on the context if you’d like, it’s basically about my Mother’s situation.

She’s been fighting for her life in a skilled nursing facility for a few months with a live-in watching her place (and cat) until she returns. Getting a lot of heat from her landlord – in spite of the fact her caretaker is registered as a tenant with same landlord. The caretaker is staying there for the consideration of providing care. No money involved in the exchange.

Tenant Troubles Archives

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.

I’m going to make a few assumptions here, because your question does not provide quite enough detail. I’m going to asume that your mother lives in San Francisco and has a rent-controlled tenancy. Based on your representation that the caretaker is a registered tenant, I’m going to assume that the landlord somehow accepted the caretaker as a roommate; or at least knows about your mother’s condition and that the caretaker is house-sitting.

As I stated in my August article, sharing the rent with a roommate also falls within the definition of subletting. The classic definition of subletting is the payment of consideration to a leaseholder for an exclusive right to all or part of the leaseholder’s interest in the lease. The subtenant has a contract with the leaseholder (master tenant) but not with the landlord.

In a roommate scenario, the subtenant usually pays rent or other consideration to the master tenant to exclusively occupy a bedroom in the apartment. Most residential leases provide for a landlord’s written consent to sublet.

In your case, the landlord could argue that the caretaker is subletting because she is providing consideration, i.e., cat care and security for a free place to stay. But the analysis does not end there. A court would also inquire if the caretaker had exclusive possession. In other words, if your mother comes back does the caretaker still have a right to occupy all or part of the apartment?

Procedurally, the landlord is required to serve a three-day notice to cure or quit. If the caretaker moved out, that should nip the argument in the bud.

I think it is unlikely that a San Francisco jury would find that the caretaker was a subletter. Nevertheless your mother could be vulnerable to defending an unlawful detainer (eviction) action. Of course, if she can prove that the landlord has accepted the caretaker as a subtenant, case over.

Before serving a notice to cure or quit and filing an unlawful detainer, a prudent San Francisco landlord should file a “1.21 petition” at the San Francisco Rent Board. If the Board ruled that the apartment was not your mother’s primary place of residence, the landlord could raise the rent to market rate without evicting her.

That’s what it’s all about anyway, landlords rarely give a rat’s ass about who lives in an apartment as long as the rent is paid. They only care about subletters when and if they think the rent is too low.

Readers: when you submit a question, you should provide as many details as possible. They don’t have to be confidential details, but I need to understand the basics that I outlined in Tenant Troubles: How To Help Dave Help You. That way I can give you a complete answer based upon the the facts of your specific issue. If you eventually need to seek the advice of a tenant attorney, you will need to provide these initial details, so it’s a good idea to have them on hand.

BTW, the best way to piss me off is to call me a liberal. Mush-headed liberals think the system can be fixed. I have to be balanced, unbiased when I try to explain how the law works. 😉 That doesn’t mean that landlord tenant law is either fair, just or reparable. Ask your mother about that.

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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  • SF_Owner

    Hey, Dave — here’s a variation on the same theme:
    If we let our daughter and her family live in our home while we travel for a year or so, would they be considered “tenants” under SF landlord / tenant laws? We have a two-unit building in San Francisco old enough to be covered by rent control. They would not be paying rent to live in our unit, but would serve as house-sitters/caretakers. Would the answer change if we paid them?
    While it would be a big family issue to make them leave if they didn’t want to, what would the legal situation be?

  • SF_Owner

    Hey, Dave — here’s a variation on the same theme:
    If we let our daughter and her family live in our home while we travel for a year or so, would they be considered “tenants” under SF landlord / tenant laws? We have a two-unit building in San Francisco old enough to be covered by rent control. They would not be paying rent to live in our unit, but would serve as house-sitters/caretakers. Would the answer change if we paid them?
    While it would be a big family issue to make them leave if they didn’t want to, what would the legal situation be?