Roommates / Subletting / Master Tenants
The laws regarding roommates in San Francisco are fairly complicated, and can confuse anyone renting an apartment in the city. It is important that tenants understand some basic facts about their tenancy in order to understand and protect their rights.
Click on a link below to jump to a section:
More Than One Type of Tenant
A tenant is defined by their relationship to the landlord or the person to whom they pay rent. If a tenant pays rent to another tenant, then that person is, in effect, the tenant’s landlord, usually known as the master tenant. Here are some very basic definitions:
Master Tenant:
Tenant who moved into the premises under a written or oral contract with the landlord or who inherited the apartment after the original master tenant left. They collect the rent from the subtenants and pay it to the landlord. They are also responsible for informing the landlord of repairs and other issues.
Subtenant:
Someone who has no relationship with the landlord, but instead pays rent to the master tenant.
Co-Tenant:
Tenant who may have moved in after the lease was signed, but has established a relationship with the landlord usually through payment of rent directly to the landlord and by requesting services such as repairs. A co-tenant is also someone who moved in with the master tenant and co-signed the lease.
Evictions, Rent Increases, etc.
The master and co-tenants are fully protected under just cause, meaning they can’t be evicted except through one of the reasons spelled out in the rent ordinance (see the evictions section for a list). The subtenant is also protected if they’ve lived in the apartment for 30 days, moved in after April 25, 1998, and was not informed in writing by the master tenant before they moved in that their just cause protection was being waived (See 6.15C of the rent ordinance).
A master tenant can evict a subtenant, but not a co-tenant. A co-tenant can also evict a sub-tenant. But a master tenant cannot evict a co-tenant. A sub-tenant cannot evict anyone. The landlord can only evict all of the tenants in an apartment. It doesn’t matter if only one person has broken the lease. The landlord cannot evict just that one person. As for rent increases, the master tenant can pass them onto the other tenants when he receives them from the landlord, but they can’t be more than the allowable amount every year (for example, if the allowable rent increase is 1.9%, the master tenant can charge them a proportionate share of that 1.9%).
When the master and co-tenants move out, the subtenant may or may not receive a rent increase. If the subtenant moved in BEFORE 1/1/96, their rent increases only if the landlord gave them a 6.14 Notice (see paragraph below for a discussion on 6.14) within 60 days of knowing that the tenant lives there.
If they moved in after 1/1/96, then the rent increases because of a law called Costa-Hawkins (CA Civil Code 1950.54). The co-tenant, who gained their status by being added on to the lease after the original tenant moved in or by paying rent directly to the landlord, would not receive a rent increase unless the landlord gave them a 6.14. If that 6.14 was received after payment of rent was made to the landlord, then the co-tenant can try filing a petition against the increase at the Rent Board on the grounds that he had already gained co-tenancy.
6.14 Notice
A landlord can serve a notice (called a 6.14 Notice, based on Section 6.14 of the Rent Board Rules and Regulations, see link here) on a subtenant saying that they recognize that person merely as an “occupant,” and that when the master- and co-tenants leave, the apartment will be treated as vacant and the rent can go up to market value. Every year after that market rent increase, the landlord can only raise the rent by the allowable amount.
Rent Gouging: Proportional Share of Rent, Copy of Lease
The Master Tenant cannot charge you more rent than is fair, based on the proportion of space you occupy and/or share, services provided, etc. In other words, whoever has the largest bedroom should probably be paying the largest share of the rent, unless the other tenants are receiving all sorts of services that the person with the largest room is not receiving. The master tenant cannot live rent-free while the subtenants pay all the rent. For more info on this, see the Rent Ordinance, 6.15C(3). See link here to section 6, scroll down for 6.15C.
Before a tenancy begins, the Master Tenant should disclose to the subtenant, in writing, the amount of money they are paying to the landlord in rent. If a subtenant feels that they are paying more than their share, they can file an illegal rent increase petition at the Rent Board and ask that a determination be made on how much they should be paying.
Replacing Roommates
If your roommate is moving out (doesn’t matter if you’re a subtenant, co-tenant or master tenant), you can always replace that person. That is your right under rent control (6.15 of the Rent Ordinance rules and regulations). If your lease says that you can have a certain number of people in the apartment or if the landlord has always allowed a certain number, then you can always have that many people. If your lease says you need the approval of your landlord in writing or that the prospective tenant needs to fill out an application, then that’s what needs to be done. The landlord can only withhold his approval on reasonable grounds.
Standards of “reasonableness” are outlined in Section 6.15 of the Rent Ordinance Rules and Regulations. Basically, the landlord can refuse the person on the grounds of either an eviction on their record or a bad credit rating.
After receiving the roommate replacement letter or the application of the new roommate, the landlord has five (5) days to process the application. If he doesn’t approve the tenant within that time period, then you can file for a decrease in services at the Rent Board.
In the event that your lease says no subletting or assignment, you can still replace a roommate. You just can’t sublet (go away and rent your room to someone during that time) unless you write the landlord for approval. But the landlord does not have to grant it.
By the way, a prohibition on subletting and assignment must be enlarged and bolded in the lease and initiated by the tenant. Or the landlord must provide the tenant a written explanation of the meaning of the prohibition.
If your lease says no subletting or assignment without written permission of the landlord, then you need to write for permission and include an application if required by the lease. The landlord has 5 days to process the application.
Adding Additional Roommates
What if you wanted to add an additional roommate beyond the number allowed by your lease, someone who wasn’t a replacement for an outgoing roommate? Under the law, 6.15E, you can add that person if the additional person will not violate the city’s occupancy code, that is, two persons per bedroom.
Here’s the quote from 6.15E of the rent ordinance concerning occupancy:
(i) two persons in a studio unit, three persons in a one-bedroom unit, four persons in a two-bedroom unit, six persons in a three-bedroom unit, or eight persons in a four- bedroom unit; or
(ii) the maximum number permitted in the unit under San Francisco Housing Code Section 503;
Section 503 says this: “Every room used for sleeping purposes shall have not less than 70 square feet of superficial floor area. When more than two persons occupy a room used for sleeping purposes the required superficial floor area shall be increased at the rate of 50 square feet for each occupant in excess of two.” Here’s the link to the Housing Code.
You should make the request for the additional roommate in writing and then the landlord has 14 days to respond. If they don’t, then the request is deemed approved. If the landlord refuses on unreasonable grounds, then you can file for a decrease in services at the Rent Board. For additional info, see 6.15E here.
Charge For Additional Tenants
If you are under rent control, this is an illegal rent increase under Section 6.13 of the Rent Board Rules and Regulations, see link here. A landlord cannot charge more rent for an additional roommate or for a newborn baby. You can file at the Rent Board for an illegal rent increase.
Moving in Partners or Spouses
A tenant in a rent-controlled apartment has a right to move in with a domestic partner or a family member. Under 6.15D of the Rent Ordinance’s Rules and Regulations, see link here, you should be able to do it as long as having another occupant won’t violate the city’s housing code. Under that code, two people can live in a bedroom, three in a one-bedroom apartment (two in the bedroom, one in the living room). Similarly, in a two-bedroom, a maximum of five persons can live there (two per bedroom, one in the living room). You must be registered as domestic partners, though. It’s simple. Go to City Hall and fill out the paperwork. Then send a copy of the certificate to the landlord along with a letter informing them that your partner will be moving in. If you’re getting married, send a copy of the marriage license. Obviously for the family member, you don’t need to register as Domestic Partners.
Airbnb and Short Term Rentals
In 2014, the Board of Supervisors made short-term rentals (Airbnb) legal through an amendment to the city’s Administrative and Planning code, but there are important restrictions and limits. The law applies to short-term rentals in buildings of two units or more by residents who reside in their units for at least 275 days a year. The City monitors and enforces this law through The Office of Short Term Rentals.
Airbnbing Your Apartment
A tenant who is NOT present in the apartment at the time of the space shares, may rent a portion or all of their residential unit for up to 90 nights a year. Penalty for violation is $416 a day for the first offense and $1,000/day thereafter. A tenant who IS present in their apartment during the space shares may rent it out for an unlimited number of nights per year.
An illegal unit or spaces that are un-permitted cannot be legally rented via Airbnb. Nor can units with outstanding code violations.
In a given month, a tenant can not make more money from space shares than the monthly rent. A unit can be advertised on hosting platforms provided that its registration number (obtained from the Planning Dept) is listed at the top. Airbnb has said that it is NOT going to check ads for compliance with the law.
Hosts must register with the Planning Department by first scheduling an appointment with a staff member to go over the rules and the application. Fee is $50. The department has 15 business days to review and issue a registration number which is good for 2 years.
Eviction and Airbnb
Tenants must notify their landlords in writing before they engage in short-term rentals of their units. If a lease has a clause restricting subletting, then the tenant is bound by it and if the landlord won’t give permission then the tenant can be evicted for doing Airbnb. If a lease agreement prohibits subletting, a landlord may evict the tenant for violating it by doing Airbnb. A tenant must be given 30 days’ notice to cure a first violation before an eviction is allowed. BUT if the violation is of the lease restriction or prohibition of subletting then no 30-days warning notice is needed, the landlord can proceed with an eviction based on breach of lease.
Reporting Illegal Airbnb / Short Term Rentals by Your Landlord
To learn more about when your landlord renting on Airbnb is illegal, and to file a complaint for illegal short term rental activity, go here.