Legal Q&A

No-Go SRO

written by Various Authors

It might be tempting to sign individual leases for each bedroom in your rental apartment, but the safest best is to rent the entire apartment on one lease.

Q. My three-bedroom rent-controlled apartment recently became vacant. Instead of entering one new lease agreement, I’d like to enter separate lease agreements with separate individuals for each bedroom. Is this legal?

A. It might surprise you, but yes, this is probably illegal, and you should be aware of the potential consequences before renting this way. First, “illegal” is a continuum in San Francisco rental housing law. It would be illegal to rent a non-residential structure (like an office or industrial building), as these spaces do not have a certificate of occupancy for residential use and almost certainly lack minimum health and safety requirements.

An “in-law” unit would technically fall into this category, even though usual health and safety concerns often aren’t present. (The structure itself is built for residential use, just not for that many residences). In fact, this kind of illegal rental is so common and benign that the city created an amnesty program in 2014 to legalize an estimated 30,000 to 40,000 units. It would also be unlawful to rent a permitted dwelling that the city has “red-tagged” (i.e., cited for severe habitability or structural defects).

Presumably your apartment is permitted and has no code violations. Unlike the problem of in-laws (which usually have unpermitted kitchens or bathrooms), your three bedrooms share permitted facilities and would only be different “units” because of the separate leases. In theory, there are advantages of renting this way. The Rent Ordinance permits six occupants in a three-bedroom apartment (with essentially no control over partial sublets). But if you—not your tenants—are responsible for filling vacancies, you have more control over how the space is used.

You’d also lease vacant rooms for market rent, whereas landlords are normally prohibited from increasing the rent for additional occupants or for partial changes in occupancy. The Rent Board even tends to uphold these individual-room base rents, protecting the individual tenant-petitioner, even if the landlord circumvents regulation.

However, this kind of rental would probably be “group housing” under the Planning Code. Each bedroom may be considered a “unit” for purposes of calculating permissible “density” (the number of units on a lot). You could find yourself in violation of both the density limits and use district by renting this way. And, while your tenants might have a harder time in their “habitability defect” lawsuit where the apartment itself is safe and permitted, this is probably enough for their attorney to try.

The more persistent problem is how you treat an ongoing tenancy that resists definition. Can you evict everyone if a single tenant stops paying rent? Can two tenants rent a third bedroom when it becomes vacant? What’s the rental rate for the apartment if they do? If you wanted to perform an “owner move-in” eviction for the apartment, can you treat the whole thing as one unit? Can the newest tenant assert the initial rent ceiling for the apartment when you charge them a higher, market rent? Are you liable for housing discrimination if your existing tenants refuse to allow your candidate? There are no clear answers to these questions in this this murky area of law. The safest path is to rent the entire apartment on one lease, so you have the best understanding of your rights.

—Justin A. Goodman

Q. Can I ask potential tenants if they have an emotional support animal during the initial screening process?

A. Emotional support animals—from everyday cats and dogs to exotic peacocks—have been all over the news in recent years. The hype, combined with rampant abuse of a system intended to create equal rights for disabled people, has led to confusion on what kinds of animals with what kinds of training are allowed where.

What is an Emotional Support Animal? —An emotional support animal is not the same as a service animal. Service animals are limited to dogs and miniature horses and require specialized training. A common type of service animal is a guide dog that assists a visually impaired person. Service animals are permitted in both housing and in public accommodations, like restaurants or workplaces, under a host of federal and state laws including the Americans with Disabilities Act (ADA), the Fair Housing Act (FHA), the Unruh Civil Rights Act, and the Fair Employment and Housing Act (FEHA).

By contrast, emotional support animals do not require specialized training and are not limited by species or breed. Their very presence is the assistance they provide. As one California court noted, the “innate qualities of a dog, in particular a dog's friendliness and ability to interact with humans…[makes] it therapeutic.” Emotional support animals (sometimes called simply “support animals” or “companion animals”) can assist with a wide range of physical and psychological ailments.

Reasonable Accommodations for Emotional Support Animals in Housing—A
tenant, prospective tenant, or even a family member of a tenant or prospective tenant may request a reasonable accommodation of a landlord’s rules, regulations, or policies at any time. Disability is defined very broadly as a physical or mental impairment that substantially limits one or more major life activities. A request can be made verbally and can only be denied if the request was not made by or on behalf of a person with a disability; if there is no disability-related need for the accommodation; or if the accommodation requested is not reasonable. Refusal to make a reasonable accommodation request constitutes disability discrimination under both California and federal law. But a landlord is not responsible for granting accommodations that are not requested.

By asking a prospective tenant if she has an emotional support animal, a landlord opens the door to a reasonable accommodation, which trigger other obligations, including a rather delicate conversation about the prospective tenant’s disabilities. In addition, refusal to allow a companion animal (especially a dog or cat) has been repeatedly held by courts and administrative agencies to constitute disability discrimination.

What Should You Do? —Unless and until a prospective tenant raises the issue, don’t ask whether she has—or needs—an emotional support animal. Regardless of your actual reasoning, if you subsequently deny their application, it creates fodder for a myriad of tenant legal claims, such as a disability discrimination lawsuit or administrative complaint. Because a landlord may not impose any costs or charges as a result of a requested accommodation, a better practice is to eliminate any “no pets” policies and charge a pet deposit in order to deter tenants looking to “game” the system and adequately protect your property.

—Shoshana Raphael

Q. A resident started a grease fire while cooking and there was an enormous amount of fire damage to the kitchen and adjacent dining room. Who is responsible to pay for the damage? 

A. The landlord has a responsibility to provide habitable housing to tenants. However, tenants are generally responsible for damage that they cause beyond ordinary wear and tear. A grease fire is presumably the result of careless or improper cooking, rather than an appliance defect. The tenant is therefore the party responsible for the damage.

The landlord should not delay in undertaking repairs to the unit, regardless of who is responsible. Only after the unit is repaired and all costs accounted for should the landlord turn to the matter of recovering the cost from the tenant. If the tenant refuses to pay, then the debt can be paid from the tenant’s security deposit, but a large fire will probably cause more damage than a security deposit would cover. In that case, the landlord will have to go to court to enforce payment if the tenant will not agree to do so themselves.

If the damages are less than $10,000, the landlord can file suit in Small Claims Court. The landlord must make a payment demand in writing before going to small claims, and attorneys are not permitted to participate unless there is an appeal. The landlord should be prepared to present complete documentation of all costs that form the basis of the payment demand, including any offsets from the security deposit or partial payments by the tenant.

If the landlord wants to recover more than $10,000, the claim must be filed as a regular civil action in Superior Court. This would be a more formal lawsuit, and the assistance of an attorney is recommended to ensure that all filing and service requirements are fulfilled, as well as appearing and arguing in court. Because hiring a lawyer will be an additional cost that would reduce the value of the original claim, a landlord with costs just over $10,000 may decide to go to small claims court anyway and limit their recovery to have a simpler case without attorney’s fees.

In either case, the landlord should be careful when demanding payment from the tenant. A tenant who was displaced and possibly lost their possessions or was possibly injured in a fire is likely to be a sympathetic defendant, even if they were responsible for the loss. On the other hand, if the tenant had been previously warned about potential fire hazards, or if the fire displaced other residents, that could also be relevant to how much blame the tenant would bear for the damage.

It is difficult to walk the line between punishing a tenant who has already been the victim of their own mistake, and holding them responsible for a fire that could have injured or killed other innocent people, along with damaging their property or their homes. Even for a small claims case, the landlord should consult with an attorney to consider all the facts and weigh the cost and benefits of attempting to recover damages from the tenant in court.

—Matthew Quiring

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. Justin A. Goodman and Shoshana Raphael are with Zacks, Freedman & Patterson, P.C. and can be reached at 415-956-8100. Matthew Quiring is with Fried & Williams and can be reached at 415-421-0100.