Surveil and Prevail

Surveillance footage proved a landlord’s claim that a unit’s original occupant had moved out.
Editor’s Note: The following San Francisco Rent Board cases are real, though they have been edited for space and clarity. They have been selected to highlight some of the more interesting cases that the board reviewed at its March and April commission meetings. For full rent board agendas and minutes, please visit

100 Block of Beacon Street
The tenants’ petition alleging an unlawful rent increase was granted in part and denied in part. The Administrative Law Judge found that the landlord properly increased the tenants’ rent from $450.00 to $1,004.15 based on comparable rents as permitted pursuant to a written rent increase notice served on July 15, 2013, but that the May 5, 2017 rent increase from $1,004.15 to $2,995.00 was not authorized and is null and void. The landlords appeal, arguing that the increase to $2,995.00 is lawful since the tenant permanently resides at a different address. The tenants also appeal, arguing that the landlords failed to submit evidence of the July 15, 2013 rent increase notice, and that the ALJ prejudicially re-opened the record to accept additional document submissions and to engage in ex parte communications with the landlords.

The attorney for the landlords stated that this is not a close case even if the Board uses the standard set forth in the De Leon case. He argued that in the De Leon case, the tenant had to spend some time in New York, and rented a crash pad with a shared bathroom, and probably spent about half of his time split between San Francisco and New York. He said that in this case the tenant spent 1 percent of his time at the subject unit, as he rented an apartment with his girlfriend and spends all of his time there, and is just trying to hold on to the subject unit in case his relationship falls apart. He argued that the tenant was not forced to have two places to live as a result of his work, that he is just trying to game the system, and that he only visited the subject property once during a 90-day surveillance period.

The attorney for the tenants stated that the ALJ’s decision and memo have been well supported, and there has been no abuse of discretion. He stated that he cross referenced the De Leon case to the facts in this case and they match up in seven distinct areas. He also said that the tenants had to pay three times the amount of the rent for three months while the landlords had the opportunity to go back to try to make their surveillance reliable and valid.

The attorney for the tenants stated that the cases cited in De Leon were decided in favor of enabling someone to have more than one residence and certain members of the Board just aggregated that and applied it retroactively to the tenant in that case. He argued that when the tenant stays with his girlfriend, he saves seven and a half hours in commute time. He said that the Board wasn’t accurately looking at the surveillance time, because during that time, the tenant was busy working selling vitamins.

Decision: To deny the tenants’ appeal and to grant the landlords’ appeal to remand the case to the ALJ on the record to find that the landlord met the burden of proving that the tenant did not permanently reside in the unit as of the date the notice of rent increase was served, and that the landlord is entitled to an unlimited rent increase under Costa-Hawkins (3-2).

100 Block of Seville Street
The tenants’ petitions alleging an unlawful rent increase under the Costa-Hawkins Rental Housing Act were denied. The ALJ found that the tenant petitioners did not rent separate areas of the subject property under separate agreements with the landlord, and therefore, since the subject property is separately alienable from the title to any other dwelling unit, it is exempt from the rent control provisions of the Ordinance pursuant to Civil Code Section 1954.52(a)(3)(A) of the Costa-Hawkins Rental Housing Act. On appeal, the tenant argues that the ALJ misconstrued the evidence and that she and tenant B had separate tenancies, as evidenced by their separate rent payments to the landlord. Tenant B also appeals, arguing that he was not the sub-tenant of tenant A, and that both he and tenant A paid the landlord separately.

The attorney for the landlord reminded the board that tenant A had two attempts to present evidence in between the first and second hearing, but did not. She asked that the Board deny the tenants’ appeals.

Decision: To deny the tenants’ appeals, 3-2. 

2000 Block of Vicente Street
The tenant’s appeal was filed 3 years and 3 months late because she alleged she discovered new evidence in support of her appeal.

The tenant’s petition for decreased housing services was denied. The ALJ found that the tenant failed to meet her burden of proving that the use of
the following housing services were housing services provided at the inception of her tenancy or ones reasonably expected under the
circumstances: use of the lightwell outside of her kitchen as a patio; use of the decorative metal on the front of the building as a balcony; the right to
store personal possessions in the interior common area hallway outside her front door; and the right to store personal possession anywhere in the
interior common area hallway. The ALJ also found that the tenant failed to meet her burden of proving that the installation of the storage shed in the
backyard walkway and that the rubber bathtub stopper on a chain in the place of the mechanical bathtub stopper constituted substantial decreases
in housing services. The ALJ additionally found that the landlords repaired the rear staircase and broken back fence within reasonable amounts of
time after receiving notice of the conditions. The tenant appeals, arguing that because she used the backyard, balcony, patio, front door, and
storage room and the landlord accepted the use from 2011-2014, the landlord and the tenant had an implied-in-fact contract that the tenant could
use those common areas to store her belongings, and that the landlord has breached that implied in-fact contract.

Decision: To deny the appeal as untimely (5-0).

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The information contained in this article is general in nature. Consult the advice of an attorney for any specific problem.