I live in a rent-controlled flat, where I have no written lease prohibiting subletting (I’ve lived here for 22 years). I don’t get along with the landlord, and he has pressured me for years to move out.
I have recently started using Airbnb to sublet a room in the flat. I continue living there. I have been using the rule of thumb that I have always used for longer term subletting, namely, I don’t earn more from a subletter than I pay in rent.
However, I’m now wondering if I’m breaking the law, and if my landlord could use this as an excuse to evict me (he’d jump at the chance).
What does the law say about this?
I get a lot of calls from tenants who have oral rental agreements with their landlords, concerned that they don’t have a written lease. If I ascertain that a caller has a rent controlled tenancy, I always say, “What’s the problem? You’ve got the best lease possible.”
Why? As you correctly state, there are no covenants–promises (terms)–in an oral lease. The only thing you have to do is pay your rent and pay it on the first of the month. An oral agreement rarely contains a promise to refrain from subletting. California case law affirms that a landlord cannot evict a tenant for breach of an unwritten covenant in a lease. Subletting your room should not be a problem.
Regardless of the rent charged, subletting your entire apartment on Airbnb could be construed as a violation of San Francisco Administrative Code § 41A, which prohibits the conversion of residential rent controlled units into transient hotel rooms. If you are simply finding roommates through Airbnb, there is no functional difference between finding a roommate there than on Craigslist or or any other venue that advertises for roommates. So you aren’t running afoul of the law or your rental agreement if you rent to a roommate you find on Airbnb.
None of my comments mean that I condone your actions. Your statement, “I don’t earn more from a subletter than I pay in rent,” seems to indicate that you are also profiting from your master tenancy. I take your statement to mean that your subletters pay the entire rent and you live in the flat for free. If that is the case, I think that you are using Airbnb to attract short-term tourists/roommates who don’t know or don’t care that they may have Rent Ordinance protections. If you really meant to say that you pay half the rent, please don’t take some of my comments personally.
You should not believe that you can rent to a series of short-term roommates without eventually violating the San Francisco Rent Ordinance. If one of your roommates decides to stay past the term of the sublease, you won’t have just cause to evict her. When she finds out about her rights under the Rent Ordinance, she will file a petition to reduce her share of the rent because you are overcharging her pursuant to Rent Board Rules & Regulations §6.15C.
If the landlord gets wind of your subletting on Airbnb, he may try to evict you despite the fact that your actions may be legal. It happens all the time. As you can see, the facts of you situation may not play well and you could find yourself in a trial. Do you really have the time and money to adequately defend yourself?
If my assumption that your subtenants pay your entire rent is correct, you are following the landlord playbook to skirt the Rent Ordinance and you’re a freaking tenant! Your landlord sees you as the greedy tenant from hell, preventing him from realizing a better return on his investment. You’re the poster tenant to whom all landlords point justifying repeal of our Rent Ordinance protections.
Just because the law characterizes you as a quasi-landlord doesn’t mean you have to act like a cheeseball landlord.