Tenant Troubles: Is It Legal For My Landlord To Change The Terms Of My Lease After 12 Years?

Readers: This is a question I received last night with a plea for a quick response, as the reader has to answer his landlord in the next few days. While this reader got lucky, I rarely can answer your questions here in a time sensitive manner. If you have a problem that requires an immediate or near-immediate response, go to the San Francisco Tenants Union and buy a membership, it’s the best 45 bucks you’ll ever spend. Be sure to bring all of your relevant documents.

I live in San Francisco CA in a rent controlled apartment.

My lease renewal contains a provision that requires me to pay 2000 dollars as a fine for an early termination of the lease. The original lease (I’ve lived in the apartment for 12 years) states 300 dollars as a penalty for early termination. Can the landlord make this change in the penalty amount? The agent representing the owner asked me for documentation if indeed the law stipulates he cannot. Can you help find it?

Another provision added to the new lease is a requirement of rental insurance. I feel it’s a good thing and I don’t have a problem getting some. I wonder, however, if the landlord can indeed add new provisions and requirement to a renewal of a yearly lease agreement first signed 12 years ago? I’d greatly appreciate it if you can answer these questions for me for I feel at loss when looking at my lease renewal as I don’t know whether I should sign it or not.

I tried to talk it over with the agent representing my landlord but his words were “that is not negotiable”.

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.

In my column, A Just Cause Eviction Does Not Mean “Just ‘Cause Your Landlord Said So,” I point out that tenants who live in rent-controlled tenancies do not have to move unless they are evicted with just cause.

If you reread Tenant Troubles: Can I Refuse to Sign A Lease, you will see that there is an argument that you can, ostensibly, be evicted for refusing to sign a new lease with the new early termination fee. Rent Ordinance §37.9(a)(5) provides that a tenant can be evicted if

The tenant, who had an oral or written agreement with the landlord which has terminated, has refused after written request or demand by the landlord to execute a written extension or renewal thereof for a further term of like duration and under such terms which are materially the same as in the previous agreement; provided, that such terms do not conflict with any of the provisions of this Chapter.

However, Rent Board Rules and Regulations §12.20 states:

Notwithstanding any change in the terms of a tenancy pursuant to Civil Code Section 827, a tenant may not be evicted for violation of a covenant or obligation that was not included in the tenant’s rental agreement at the inception of the tenancy unless: (1) the change in the terms of the tenancy is authorized by the Rent Ordinance or required by federal, state or local law; or (2) the change in the terms of the tenancy was accepted in writing by the tenant after receipt of written notice from the landlord that the tenant need not accept such new term as part of the rental agreement.

So you have to look at the new early termination fee clause and ask yourself, 1) Is this a material change? and 2) Can the landlord evict me if I don’t pay the new fee?

The clause certainly seems to be material. After all, it increases the original fee from $300 to $2000. But the landlord can’t evict you because, presumably, you’ve either given notice to vacate or you’ve already moved out. The key here is to look at the clause and determine when the payment would be due. If that has changed in the new lease, meaning if there is some new requirement to pay the fee before you move, you can comfortably tell the landlord, through his barely competent agent, to stick that clause in his orifice most closely evolved to receive it.

If the language for payment is the same as the original lease, consider that this may not be a battle worth fighting now, because if and when the landlord sues you for the fee later on down the line, you can use Rule §12.20 to bolster your argument in small claims court that you don’t have to pay it. You can also make the argument that the fee isn’t warranted as a “liquidated damages” fee.

If you apply this analysis to the new requirement to buy insurance, you can use the same logic as did the court in NIVO 1 LLC v. Antunez (2013) 217 Cal.App.4th Supp. 1, 159 when it found: 1) Rent stabilization ordinance prohibited change of terms to deem any breach a material breach, and 2) Evidence was sufficient to support finding that failure to maintain insurance as an immaterial or trivial breach.

It is clear and supported by case law that the insurance requirement can be defeated in court. I suggest you print out the case and roll it up nice and tight.

Landlords think they’re so clever when they design new tenancy requirements to harass their long-term rent-controlled tenants. You know the real reason the landlord is fucking with you. He wants to get rid of you so he can charge $12,000.00 a month for your one-bedroom apartment. Don’t let him do it.

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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  • BTinSF

    Here we have yet another example of the reason people don’t want to be landlords in San Francisco. Everything is slanted toward the tenant’s favor. If the landlord wants to go out of the business of renting his property–let’s say he is just getting too old to deal with the hassles–he will likely have to pay the tenant a sizable amount of cash in compensation. Reverse the situation and ask the tenant to compensate the landlord for leaving early and leaving the landlord with no tenant and possibly no income for a while and the lawyers come out to object.

    Much has probably changed in 12 years. There are new fees landlords must pay to tenants to empty the unit. Why should the landlord not be able to ask for a new, or higher fee for early termination at lease renewal time? Suppose the landlord simply refuses to sign a new lease or even offer one? Suppose he also simply abandons a money-losing property and moves to Dallas? Stop paying the taxes and let the city have it. How long before they find a way to empty it out?

    • Justizin

      people become landlords because they want to make money off tenants. if they aren’t good at planning sufficiently for the future, they don’t just get to kick the tenants out, take their ball, and go home. good advice to potential landlords is: consider that you may get old and not want to do the landlord game anymore, but people will still rely on living in your building, and have a legal right to. so far, san francisco has had no trouble attracting real estate investors, and their behavior over the decades has driven into place the rules that they must play by.

    • You_SF

      BTinSF, I think Dave’s response addressed both your issues: the legal and the social aspects. The law is clear on the issue. The lease renewal must not contain material changes from the original lease so in this particular situation, the tenant is not in the wrong here, rather the landlord is. As for landlords wanting to go out of business “because he just getting old to deal with the hassles”, there are legal provisions under which he can do away with the hassle and forever like selling property for example or move in the property. or when the tenant is damaging the unit etc. You’re presenting the rent ordinance as if the poor landlord is forever stuck in a rental agreement when the reality in SF -rise of eviction notices- and the law say otherwise.

      The recent economic crises following the housing bubble is the perfect example that when prices get inflated beyond the reality of people’s actual living standard, sh*t is bound to hit the fan. Rent Control is one way of “controlling” this problem. I wish that landlords “just are getting old and want to move out to Texas” but unfortunately that is not what we see on the ground. The FACT is that once a landlord evicts a social worker or a teacher who pays say about a thousand dollars for his/her one bedroom, the landlord turns that same apartment for three times that price and I personally saw this happen twice in my neighborhood. I’m not even talking about what this kind of prices does to a city as a whole in terms of its fabric and communities. So let’s stop with the excuses and get to the bottom of it which is GREED.

      My 2 cents

  • http://changeoftermsprovisions.ehorwitzlaw.com/ Eric Andrew Horwitz

    ARTICLE: AN ANALYSIS OF CHANGE-OF-TERMS PROVISIONS AS USED IN CONSUMER SERVICE CONTRACTS OF ADHESION

    15 U. Miami Bus. L. Rev. 75

    http://www.changeofterms.com

  • tom

    I am trying to build an anonymous landlord review / feedback website: http://mylandlordscore.com/?r=14

    It’s still in the development phase, but we are looking for feedback and user reviews. It would be great if we could get some active users from San Fran!