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Q & A – by Richard Beckman, Attorney (Northern California)

Posted on 08. Nov, 2012 by in all

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Question 1: My tenant in a two bedroom San Francisco unit wants to replace his roommate, after we just went through that process a few months ago. I have reviewed the Rent Board’s website, and they indicate that the tenant can only do this once every 12 months unless the tenant has ‘good cause’. But the rent board’s website does not provide a definition of ‘good cause.’ What is the definition of ‘good cause’ in this situation?
Answer 1: For purposes of the San Francisco rent board’s regulation affecting a tenant’s right to sublet, and in particular to do a ‘one for one’ replacement of a departing tenant, there really is no specific definition of ‘good cause.’ As the rent board’s information sheet provides, “In general, a tenant’s right to sublet all or a part of a rental unit (which includes getting a new roommate) depends on whether the lease or rental agreement permits it. If the agreement is silent on the issue, then subletting is generally permitted. Many leases or rental agreements contain a “consent clause,” which requires that the landlord approve a new roommate or subtenant. Even where a lease absolutely forbids subletting, the San Francisco Rent Ordinance and Rules and Regulations allow tenants to replace departing roommates on a one-for-one basis, as long as the replacement roommate meets the landlord’s regular, reasonable application standards and the tenant is not subletting the entire unit, but only replacing a roommate.”

As stated in Regulation 6.15A, “The tenant may request the landlord to consent to a new replacement roommate only one time per existing tenant residing in the unit in any 12 month period, absent good cause for additional requests.” However, as you have learned, the rent board does not provide a definition of what constitutes good cause. In such case, it will be determined on a ‘case by case’ basis. In one recent scenario someone wrote about, the first replacement tenant was relocated by his employer out of San Francisco, and so moved out of the unit a few months after moving in and qualifying as a replacement tenant. While it is difficult to predict what a rent board officer or superior court judge might do if the issue went to an eviction process, I would anticipate that tenant would have shown ‘good cause’ for seeking another replacement, and the owner would be obligated to accommodate that second request, assuming the tenant followed the rules associated with the request.
But in any case, if the tenant makes a proper written request to the landlord for permission to sublease, and the landlord fails to respond in writing within fourteen (14) days of actual receipt of written notice, the subtenancy is deemed approved.
Withholding of consent by the landlord shall be deemed to be unreasonable if the tenant has met the following requirements:

(i) The tenant has requested in writing the permission of the landlord to the sublease or assignment prior to the commencement of the proposed new tenant’s or new subtenant’s occupancy of the unit;
(ii) The proposed new tenant or new subtenant, if requested by the landlord, has completed the landlord’s standard form application, or, in the event the landlord fails to provide an application or has no standard form application, the proposed new tenant or new subtenant has, upon request, provided sufficient information to allow the landlord to conduct a typical background check, including credit information, income information, references, and background information;
(iii) The tenant has provided the landlord five (5) business days to process the proposed new tenant’s or new subtenant’s application;
(iv) The proposed new tenant or new subtenant meets the regular reasonable application standards of the landlord;
(v) The proposed new tenant or new subtenant has agreed to sign and be bound by the current rental agreement between the landlord and the tenant;
(vi) The tenant has not, without good cause, requested landlord consent to a new tenant or new subtenant more than one time per existing tenant residing in the unit during the previous 12 months;
(vii) The tenant is requesting replacement of a departing tenant or tenants with an equal number of new tenants.
It should be noted that the rule governing replacing a departing co-tenant or sub-tenant does not apply to assignment of the entire tenancy or subletting of the entire unit.

Question 2: Can I require my tenant to have her cat declawed as a condition of having a cat?
Answer 2: As of January 1, 2013, a new law will take effect that will prohibit a landlord that otherwise allows a tenant to have an animal on the premises from advertising or establishing rental policies in a manner that requires a tenant or a potential tenant with an animal to have that animal declawed or devocalized as a condition of occupancy. The bill, SB 1229, will add Civil Code Section 1942.7, which will also authorize a civil penalty, not to exceed $1,000, for each violation of these provisions. While the landlord will not be required to allow pets as a result of this new law, that decision itself is subject to other rules affecting a tenant’s right to have a ‘service’ animal or ‘comfort’ pet and should be considered separately from the prohibition on requiring the declawing of devocalization of the proposed or existing pet.

Question 3: I just learned I have to do work to one of my rental units that will require the tenant to vacate for about a week. When I mentioned this to the tenant, he later sent me a letter telling me I have to pay him and his two roommates ‘relocation payments’ of over $5,000 each, even if they only have to be out of the unit for a week to 10 days. I can’t believe this is the case. Am I really expected to pay over $15,000.00 to the tenants for them to be out of the apartment that little amount of time while I make repairs?
Answer 3: Your tenant is more or less correct on the general state of the law, as it specifically applies in San Francisco to rent controlled apartments (basically, any residential dwelling built before 1979 is covered by the eviction control provisions of the San Francisco rent ordinance). In these cases, the landlord is really caught between the rock and the hard place – the rock of needing or being required to provide some work or repair to the unit, and the hard place of being required to pay what amounts to outrageous relocation assistance to the temporarily displaced tenants.  However, help is on the way beginning January 1, 2013.
As a bit of background, many of the various California cities that have local rent and eviction control ordinances (for example, in Northern California, San Francisco, Oakland and Berkeley, and in Southern California, Los Angeles, West Hollywood and Santa Monica) require that a tenant may not be evicted unless the landlord has one of a dozen or so ‘just cause’ grounds for eviction. Typically, about half the just cause grounds are based on tenant-generated lease breaches, such as non payment, nuisance or other violations of the lease. The other half are typically based on actions the landlord wants or needs to take, such as ‘owner move in,’ removal of the unit from the rental market entirely (sometimes called the “Ellis Act”), or capital improvements. In the latter cases, the local laws often require that the landlord pay the tenant being forced to move a certain amount of ‘relocation assistance’ money.

San Francisco’s ordinance is one of the most ‘generous’ (from the tenant’s perspective). It provides a payment of about $5,100.00 for each tenant, up to a maximum of three, plus ‘bonus’ payments of about $3,400.00 for each person over 60 or each household with a minor. Thus, a three person, three generation household (Parent, child and grandparent) would be entitled to a combined payment of over $22,000.00 before they could be evicted, even for a temporary period while repairs were being done.
This situation resulted in such extreme results that legislation was proposed by the SF state representative, which passed in September, and will take effect January 1, 2013. Under the new state law, relocation payments for temporary evictions that do not exceed 20 days will be capped at $275 per day, plus actual moving costs. The landlord has the option of providing a comparable rental, plus actual moving costs.
This state law will bring an on occasionally outrageous application of local law to an end. However, for owners who have mandatory repairs due before the end of 2012, they may still face the current relocation payment requirement.

Question 4: If my tenants have a one year lease, and I do not intend to renew the lease, do I have to give them a notice of some kind?
Answer 4: Generally, a tenant who ‘holds over’ after the expiration of the initial term of the rental agreement is a ‘tenant at sufference,’ who can be evicted without further notice from the landlord. So, in such cases, you would not need to notify the tenant that you do not intend to renew the lease. But note that expiration of a month to month tenancy is not subject to this rule. In other words, once the lease is ‘month to month,’ it can only be terminated by written notice to the tenant. The amount of notice (e.g., 30, 60 or 90 days) depends on how long the tenant has lived there, the nature of the termination notice, and the type of tenancy. Generally, a 60 day notice is required to terminate a standard month to month tenancy where the tenant has been in possession over one year. However, as most readers of this publication know, if the rental unit is located in a ‘rent contolled’ city, the rule changes. In such cities, the tenancy is extended past the expiration of the lease, on a month to month basis, as long as the tenant stays in possession and tenders the rent. In such cases, the landlord can not simply terminate the rental agreement, even if it has ‘expired’, unless the landlord has one of the specified ‘just cause’ grounds, discussed briefly above in Answer 3.

Richard Beckman, of Beckman Blair, LLP has been practicing landlord-tenant law for over 19 years, primarily in rent-controlled jurisdictions such as San Francisco, Oakland and Berkeley. He represents clients in a broad range of real estate-related disputes, including partition of co-ownership interests, purchase contract disputes, insurance coverage analysis and land use. Mr. Beckman also specializes in all aspects of landlord-tenant issues, representing landlords and tenants in residential and commercial matters. He can be reached at 415-495-8500; email rich@beckmanblairllp.com or by visiting the website www.beckmanblairllp.com.

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