by David Wasserman
In March 2005, the San Francisco Rent Board Commissioners passed Rules and Regulations Section 6.15D to compliment the Gonzalez Roommate Legislation that became law on January 2, 2005. The Gonzalez Roommate Legislation requires landlords to permit tenants to move in the following categories of relations: (1) the tenant's spouse/domestic partner; (2) the children, parents, grandchildren, grandparents and siblings of the tenants (listed as “relatives”); and (3) the spouse or domestic partner of these relatives. Even if a lease prohibits subletting or assignment, or limits the number of occupants in a unit, a tenant may be allowed to move in persons who can be classified in one of these three categories (listed as “family members”).
The Rent Board spent January through March drafting guidelines to implement this significant legislation. The result is Section 6.15D, which sets forth the following requisites for landlords and their tenants who seek to override the rental agreement by moving in family members.
First, an owner is deemed to waive any objection to the addition of a family member if the tenant makes an initial written request to the landlord for permission to add a family member, and the landlord then fails to respond in writing within 14 days after receiving this request. To this end, a landlord who fails to object in a timely fashion to a written notification by the tenant, or who “unreasonably” withholds consent to the addition of a family member, cannot evict the tenant for violating a lease covenant that prohibits a sublet or assignment.
Section 6.15D then goes on to define the unreasonable withholding of consent. At the onset, a landlord is precluded outright from denying a tenant permission to move in a minor child who is a family member. If the family member is not a minor, then the tenant is required to satisfy six criteria: (1) the tenant must make a written request to the landlord and describe the familial relationship of the family member moving in; (2) the family member must comply with the landlord's request to complete the standard form application or provide sufficient information to allow the landlord to conduct a typical background check; (3) the tenant must allow the landlord five business days to complete the background check; (4) the family member must then satisfy the reasonable application standards of the landlord (except that credit worthiness may not be a basis for refusal if the family member is not obligated to pay any portion of the rent); (5) the family member will agree, if requested by the landlord, to be bound by the terms of the rental agreement; and (6) total occupancy of the rental unit will not exceed the lesser of (a) two persons per studio, three per one-bedroom unit, four per two-bedroom unit, six per three-bedroom unit, or eight per four-bedroom unit, or (b) the number of occupants permitted by state or local law.
Second, this rule and regulation states that an unreasonable refusal to consent to the addition of a family member will permit a tenant to file a petition for a decrease in services with the Rent Board. A successful petition equates to a lowering of the base rent, until the decreased service is restored. Moreover, either a landlord or a tenant may file a petition with the Rent Board to determine the reasonableness of a tenant's request to move in a family member, and such a petition will be expedited and heard quickly.
It is my opinion that Section 6.15D represents a fair and reasonable effort by the Rent Board to define the parameters of the Gonzalez Roommate Legislation. Rather than ignore the substantial vagueness and ambiguity created by this law's passage, the Rent Board has set forth clear and concise guidelines for both tenants and landlords to follow. Indeed, many landlords have expressed satisfaction with the fact that now a written standard governs how many people can live in units of differing sizes. In addition, a tenant cannot simply move in a family member without subjecting that person to an investigative process. And if a landlord believes that the family member is not in fact related to the tenant in the manner represented, the landlord can pursue affirmative relief by filing a petition with the Rent Board. Whether or not this law will even survive a judicial challenge, at least concise rules have now been laid down.
The opinions expressed in this article are those of the author and do not necessarily reflect the viewpoint of SFAA or the San Francisco Apartment Magazine. The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. David Wasserman is the 1st vice president of SFAA and is a partner in the law firm Wasserman-Taxman, 415-567-9600 x 12. Copyright © 2005 by the San Francisco Apartment Magazine. All rights reserved.