SF Apartment : July 2016


Maximum Capacity

by Various Authors

Q. I have a family of four living in one of my two-bedroom units. The husband informed me that his brother-in-law, who is a minor and also illegally in the United States, will be staying with them indefinitely. What should I do?

A. The short answer is that this is an unsettled issue. Children under the age of six are not considered occupants under the San Francisco Housing Code (Section 503(b)). However, the California Court of Appeal last year held in two published cases that the term “occupant” for purposes of the Costa-Hawkins Rental Housing Act does include minors (Mosser v. San Francisco Rent Board and T & A Drolapas & Sons LP v. S.F. Rent Board). In those cases, the Court held that minors who moved in with their parents at the inception of the tenancy were original occupants and could keep the same suppressed rent, even after the parents vacated and the now-adult children remained in the residence.

Under the new Kim Legislation, which became part of the Rent Ordinance in November of 2015, landlords must generally permit two persons in a studio, three persons in a one-bedroom, four persons in a two-bedroom, six persons in a three-bedroom, and eight persons in a four-bedroom. Neither the Rent Ordinance nor the Rent Board’s Rules and Regulations define a “person” as being an adult, minor, or either. As such, there is no clear legislative directive as to who is a “person” for purposes of adding new subtenants under the Kim Legislation.

This author believes that landlords should be careful not to penalize tenants for living with or moving in children. Indeed, if a tenant brought a child into the world and that child caused the number of persons in the apartment to exceed what is allowed under the Kim Legislation when that child reached the age of six, it seems unconscionable to bring adverse action against the tenancy on that basis. Yet in this instance, the tenant is moving in a family member, which could cause there to be more than four persons in a two-bedroom apartment. That being said, seeking to terminate a tenancy for the addition of a minor child may draw the ire of the court and conceivably could violate fair housing laws.

The matter of immigration status is not relevant and off limits. San Francisco is a sanctuary city and landlords should not consider someone’s immigration status when providing housing. State law also prohibits landlords from inquiring into a person’s immigration status.

In sum, you should ask yourself what harm will be caused by the addition of this minor child into the apartment. Does this harm outweigh the potential legal (and perhaps political) reaction that may flow from seeking to prevent the child from staying with the tenants? The answer is likely “no,” unless you have reason to believe that that minor will be disruptive or otherwise cause substantial harm to the apartment building.

—David Wasserman

Q. Can I require renter’s insurance? If not, what if the tenant has a pet?

A. In brief, the answer to your first question is that you can require a new tenant to sign a lease agreement in which the tenant agrees to have renter’s insurance, but it will not do you any good. The answer to your second question, if the tenant has a pet and the pet damages the unit or common areas, you can hold the tenant responsible. Whether or not a tenant has a pet has no effect on whether you can require the tenant to have renter’s insurance.

The reason that requiring a tenant to agree to purchase renter’s insurance will not do you any good is that any such agreement is not enforceable under California law. The Second Appellate District recently held that an owner cannot prosecute an Unlawful Detainer action against a tenant who failed to purchase renter’s insurance, despite having signed a lease agreement with a clause requiring the tenant to have renter’s insurance. The appellate decision in the case titled Boston LLC v. Juan Juarez is discussed in detail in another article in this month’s San Francisco Apartment Association magazine (page 34), but the Appellate Court reasoned that renter’s insurance only protects the tenant and is not a material term of a lease agreement—despite the fact that the lease agreement included a clause stating that every term of the lease agreement was considered material.

Some property owners charge tenants an extra pet deposit. It is legal to charge tenants a pet deposit, so long as the total security deposit does not exceed two months’ rent for unfurnished units or three months’ rent for furnished units. In California, a refundable security deposit is a security deposit no matter what you call it, whether it is a “pet” deposit, “key” deposit, or any other deposit. If the pet causes damage to your property, the cost of repairing those damages can be deducted from the security deposit. If the pet causes damages that cost more to repair than the amount of the security deposit, you can sue the tenant in small claims court.

To address the cost that a tenant’s pet might cause a property owner to incur, it is increasingly common—and thus far legal—to charge additional rent when entering into a lease agreement with a new tenant who has a pet. Property owners cannot increase the rent during an existing tenancy in San Francisco beyond the annual rent increase limitations established by the Rent Board, but it is certainly acceptable to increase the asking price when negotiating with a new tenant.

—David Semel

The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem. David Wasserman is with Wasserman-Stern Law Offices and can be reached at 415-567-9600. David Semel is with Fried & Williams, LLP and can be reached at 415-421-0100.