This section includes: definitions of master tenant, subtenant and co-tenant as well as 6.14; your right to move in roommates; subtenants being evicted by master tenants; proportionate sharing of the rent; moving in domestic partners or family members; and what a landlord can do if s/he thinks your apartment is not your primary place of residence.

Many people think that "subletting" refers to renting out your apartment when you're out of town. Actually, the word is also applied to revolving tenancy situations--when one person moves out and another takes his/her place. The laws regarding subletting in San Francisco are fairly complicated, and landlords like to take advantage of tenants' lack of knowledge. This section lays out some of the basic issues surrounding subletting, as well as some practical advice for roommates who aren't getting along.

1. A "no subletting" clause in the lease DOES mean that if you sublet without explicit permission, you could be evicted. Any such lease provision must be pointed out to you and initialed by you at the beginning of your tenancy.
2. The Master Tenant MAY evict you if s/he has informed you in writing at the beginning of your tenancy that you are not covered by the eviction protections in the Rent Ordinance.
3. The Master Tenant must disclose, in writing, the amount of money he/she is paying to the landlord in rent.
4. 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. S/he cannot live rent-free while the subtenants pay all the rent. For more info on this, see the Rent Ordinance, 6.15C(3).

DEFINITIONS

For more in-depth information see Rent Board Rules and Regulations [Sec. 6.13, 614 and 6.15] for more information--available at the Rent Arbitration and Stabilization Board, 25 Van Ness Avenue, 3rd floor or online at www.sfgov.org/rentboard.

MASTER TENANT:

Tenant who moved into the premises under a written or oral contract with the landlord.

SUBTENANT:

Someone who lives at the premises and has no relationship with the landlord, but instead pays rent to another 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 requesting services such as repairs.

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) on the subtenant saying that he recognizes 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. This matter can be very complicated and it is best that you call our counseling line (703-8644) to get more clarification of this, especially if you have just received such a notice. The Master and Co-Tenants are fully protected under rent control, meaning they can't be evicted except through just cause (see eviction section for a list of the 14 just causes). The subtenant is also protected if he/she has lived in the apartment for 30 days, moved in after April 25, 1998, and was not informed in writing by the Master Tenant before she/he moved in that s/he did not have just cause protection. 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, his/her rent increases only if the landlord gave him/her a 6.14 Notice (Section 6.14 of the Rent Board Rules and Regulations) within 60 days of knowing that the tenant lives there. If he/she moved in after 1/1/96, then the rent increases. The Co-Tenant, who gained his/her 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 him/her a 6.14.

FAQ'S:

Question: I am a subtenant. Can the master tenant evict me?

Make sure you're really a subtenant and not a co-tenant. What is your relationship with the landlord? Have you ever paid rent, requested repairs or filled out a credit application? You may want to call our counseling hotline (703-8644, Monday through Thursday, 1-5pm) to clarify your status. If you really are a sub-tenant, the master tenant can evict you with no just cause (if you moved in before May 25, 1998 or after that date if s/he waived your right to just cause in writing before you moved in) or with just cause, following proper eviction procedures at Municipal Court.

Question: I want to bring in a roommate but my landlord says no.

Does your lease say, "No subletting without prior written permission of the landlord" or "No subletting at all"? If yes, and you bring in a roommate without permission, you could be in violation of your lease and vulnerable to an eviction.

If you've had a roommate before, however, Section 6.15 (b) of the Rent Board Rules and Regulations says that you can replace that person with another without breaching your lease, as long as the lease allows subletting with the landlord's permission. In this case, the landlord cannot "unreasonably withhold permission" to sublet.

Standards of "reasonableness" are outlined in Section 6.15, and include the subtenant's credit and tenant history. So, for example, a bad credit rating or an eviction on someone's record are legitimate grounds for a landlord to reject that person as a roommate.

Finally, the Rent Ordinance says that a rent increase is defined as a "decrease in service without a corresponding decrease in rent." If you've had roommates before and now you aren't able to, that's a decrease in service. So if your landlord isn't offering a rent reduction, his denial of a new roommate is technically an illegal rent increase.

Question: I want to bring in a roommate and my landlord says,
"OK, but you have to pay me $400 more a month in rent."

If you are under rent control, this is an illegal rent increase under Section 6.13 of the Rent Board Rules and Regulations especially if you previously had a roommate and are entitled to replace him/her. At this point you can go to the Rent Board for a decrease in services for not being allowed to replace the outgoing roommate. But if your lease prohibits subletting outright, the landlord might try to evict you for breach of lease for bringing in a subtenant without permission if you don't pay this money.

On the other hand, an argument might be made that the landlord's request for more money for a subtenant implies his/her acceptance of subletting in general, in which case there would be no lease violation. If you get a rent increase for subletting you can either dispute the extra rent up front or pay it, move the person in, and then turn around and file an illegal rent increase petition at the Rent Board.

Question: I have been subletting from my roommate for 2 years. Now he's moving out and the landlord says that I either have to move out or pay him another $500 in rent. What are my options?

Are you a legal subletter? Did the Master Tenant inform the landlord that you were moving in? Did s/he follow the procedure for subletting that is required by the lease? If you can prove that the landlord has known all along about your tenancy, then s/he cannot evict you as an illegal subletter. S/he can, however, increase the rent to market rate and if you can't pay it, then you will have to move. But are you sure you're a subtenant and not a co-tenant? Have you ever paid rent directly to the landlord? Have you ever requested services such as repairs from the landlord? Questions of one's status and whether one gets a rent increase when the Master Tenant move out are complicated. It might be best that you call our counseling line (703-8644, Monday through Thursday, 1-5pm) for further clarification of your particular situation. As for eviction, the landlord can only evict if s/he had no knowledge that you were living there (the Master Tenant didn't follow the lease, or never informed the landlord you were there).

Question: My lease doesn't say anything about subletting, but my landlord just sent me a letter saying he's changing the terms of the lease and I can't have roommates. Do I have to accept this?

No. Section 12.20 (a) of the Rent Board Rules and Regulations says that you cannot be evicted for breaking a lease clause that was unilaterally imposed after you signed your original lease. In other words, if you didn't sign it, you don't have to abide by it.

Question: I want to move in my domestic partner or a family member.
Can I do it?

Yes. Under 6.15D of the rent ordinance's rules and regulations, 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 on the sofa). Similarly, in a two-bedroom, a maximum of five persons can live there (two per bedroom, one on the sofa). You must be registered as domestic partners, though. Simple enough. Go to City Hall.

Question: I understand that as a subtenant my rent must be proportionate to the amount of space that I occupy. Please explain.

Yes, your rent should be proportionate. A master tenant cannot charge you for all of the rent or for space you do not occupy or have access to. For instance, if you rent the smallest space in the apartment, the master tenant cannot expect you to pay the same rent as someone who has the largest bedroom. Of course, other services you might be receiving can be taken into consideration. Generally, though, the rent should be proportioned according to the space you occupy.